ARTICLES

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Important Judgment Reported Today on Right to Appeal before Foreign Tribunal (21st May, 2019)

Title of the Case – Right to Appeal before Foreign Tribunal

Name of the caseAbdul Kuddus v. Union of India and Ors, C.A. No. 5012 of 2019 (@SLP (Civil) No. 23127 of 2018)

Date of Judgment 17 May, 2019

Judges: CJI Ranjan Gogoi, Justice Deepak Gupta and Justice Sanjiv Khanna

Subject and sections involved Registration of Citizens and Issue of National Identity Cards) Rules, 2003

Issue:

  1. To check and analysis conflict between sub-paragraph (2) to paragraph 3 and paragraph 8 of he Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.
  2. Whether the court under Article 142 of the Constitution create an appellate forum for deciding disputes regarding the citizenship status of persons residing in the State of Assam.

 

Fact of the Case:

Several appeals were considered under this case which deals with the contention that an aggrieved person (who is not included in NRC), whether or not, should be entitled to take recourse to paragraph 8 of schedule to the 2003 Rules, and the principles of Res Judicata would apply.

 

Ratio of the case -

The Supreme Court on the above-mentioned issue held that it would be incorrect to hold that the opinion of the Foreigners Tribunal and/or the consequential order passed by the Registering Authority would not operate as res judicata. Both the opinion of the Tribunal and the Order of the Registering Authority result in determination of rights/status under the statute and by an authority after a contest on the merits which would necessarily operate as a bar to subsequent proceedings before the same authority for re-determination of the same issue/question. The Court further said that The contention that a person concerned should be permitted to double-dip and be entitled to a second round of litigation before the Foreigners Tribunal notwithstanding the earlier opinion expressed by the Foreigners Tribunal is far-fetched, and completely unacceptable. The plea is fallacious and has no merit. This contention therefore must be rejected and fails.

Principle Of Res Judicata

There could be contradicting decisions/ opinions of Foreigners Tribunal even in cases of near family members, albeit contradictions can be avoided when ‘family tree hearing’ are held as is now being undertaken. In the absence of joint decisions, conflict is possible as the principle of res judicata would not apply to separate proceedings even if against two closely related but different persons, as each case has to be strictly decided on the facts and evidence on record. Secondly, there is a possibility that some/one of the near family members may have migrated to India prior to midnight of March 24, 1977 and, therefore, fall in a different category. Any such conflict, however, would not compel us to take a different view, in terms of the clear statutory provisions. In a given case, the person aggrieved would have liberty to invoke writ jurisdiction, or if necessary, review jurisdiction before the High Court or this Court to ensure that no injustice is done. Any order passed in case of close family members, subsequent to adjudication order determining the citizenship status of a person, would necessarily be a material evidence which can be duly taken note of and considered while deciding a writ petition or a review application.

Paragraph 8 of the Schedule to the 2003 Rules

Paragraph 8of the Schedule to the 2003 Rules which gives a right to appeal before the Tribunal under the 1964 Order would apply only if and, in those cases, where the Tribunal constituted under the 1964Order has not already adjudicated upon and decided the issue as to whether the person is an Indian National or a foreigner. In other words, where the issue and question of nationality has already been determined under the 1964 Order, an appeal would not be maintainable under paragraph 8 of the Schedule to the 2003 Rules. The determination would be final and binding on the Registering Authority under the Schedule and the Local Registrar. Paragraph 8 does not envisage and provide for a second round of litigation before the same authority i.e. the Foreigners Tribunal constituted under the 1964 Order on and after preparation of the final list. Provisions of paragraph 8 of the Schedule to the 2003 Rules will apply when there has not been an earlier adjudication and decision by the Foreigners Tribunal.

Appellate Forum

In response to the request to alternative appellate forum, the bench says, “We would not give any such direction and entrench upon the field of legislation reserved for legislature. This is not a case of an unoccupied legislation nor would facts justify the Court to exercise powers as in the cases of vacuum and when there is a complete absence of active law to provide for effective enforcement of basic human rights [See P. Ramachandra Rao vs. State of Karnataka7 and Pravasi Bhalai Sangathan vs. Union of India, (2014) 11 SCC 477.


 

 

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DIGITAL VILLAGES CAN SPARK A REVOLUTION

During the Interim Budget speech, acting Finance Minister Piyush Goyal stated that by 2030, India’s digital infrastructure and economy will be built on the work done in digitisation of government processes and private transactions. As part of this ongoing initiative, the government plans to build 1 lakh digital villages over the next five years with the help of Common Service Centres (CSCs), a public-private initiative that offers digital services to villagers.

 

So far, more than 1 lakh village councils have been connected with optical fibre under the Digital India programme and around 40,000 village councils have also been provided with Wi-Fi hotspots. In 2017, the government launched the DigiGaon project, whose target was 700 digital villages by the end of 2018. Under this project, there are 206 programmes available for the people. This includes a Wifi Choupal, LED bulb manufacturing, a unit to make sanitary pads and the PM’s digital literacy initiative.

 

Today, three lakh CSCs employing around 12 lakh people are digitally delivering several services to citizens and creating digital infrastructure in villages, including connectivity, to convert them into digital villages.

 

WHAT IS A DIGITAL VILLAGE?

A digital village is one that has both voice and data connectivity, with a reasonably high quality, bandwidth and speed available to the people to use across form factors, be it desktops, laptops, tablets or mobile phones. Digital villages would enable the government to establish last-mile connectivity with the people, and thereby, further its development agenda. The target of spreading connectivity to villages will further narrow the digital gap, and spur digital entrepreneurship in rural areas.

 

Let’s look at some of its practical applications. For starters, the agriculture sector will be the biggest beneficiary. Digital connectivity can have tremendous impact on farmers’ lives, be it information regarding weather, agricultural inputs, sowing and harvesting methods, among others. Moving to the education sector, digital villages can play a role in digitisation of records, attendance and evaluation of exam papers; and students can gain access to instant information on diverse subject matters. Similarly, in the health care sector, connectivity can make it possible to save lives by calling ambulances and doctors quickly, make appointments with doctors and discuss people’s cases. Lastly, in the banking and fintech sector, digital villages would enable quick processing of loans, more deposits in banks, and will help move more people into the formal banking and credit system.

 

LESSONS FROM OTHER NATIONS

Samsung Electronics launched its digital villages model in Libreville, Gabon. The project encompassed a solar power generator, a tele-medical centre and a mobile clinic that will move from one village to another, offering treatment for most common diseases such as diarrhoea and malaria.

 

Germany is also leveraging digital services and bringing it to rural areas. For example, in a rural town, two apps have been created locally. One app is being used as a local online marketplace - where local vendors can order their products and services online, including food items such as vegetables and organic products, and non-food items such as sports good stores, drug stores, pharmacies, laundries and book stores. Once an order is registered, the system generates deliveries, which volunteers can help with using another mobile app.

 

The idea is that people travelling on the required route could deliver a parcel to their neighbour. The app motivated voluntary deliveries, as those participating earned a virtual currency that they can spend on other essential items and reap benefits out of it.

 

HOW TO MEET THE TARGET

Today, rural India is far more digitally savvy than ever with the advent and deep penetration of mobile phones. A report by Cisco showed that smartphone users in India are projected to double to 829 million by 2022 from 404.1 million in 2017. With this growing penetration of smartphones and even feature phones, a wide range of apps and content relevant for rural consumers must be made accessible on mobile devices at a low cost. Now, availability of Internet services to access such content, through handheld devices, is a prerequisite to achieve this goal.

 

Regrettably, telecom infrastructure providers find rural towers quite uneconomical due to lack of government subsidy and support. This is where the government needs to intervene fast, and in collaboration with the private sector or leveraging the PPP model, should focus more on providing the necessary support, frame conducive policies, open new funding avenues and build the right digital infrastructure.

 

Further on, to leapfrog data connectivity, Wi-Fi hotspots are a key enabler and other wireless technologies instead of optic fibre can help hasten the process. India needs to manufacture more easily transportable and erectable towers that can be placed in remote villages for better voice and data connectivity. Additional towers will also offer an entrepreneurial opportunity to set up cyber cafes and other businesses that require Internet connectivity. On the backend, to ensure the base stations that is enabling the connectivity is functional 24x7 and adequately powered, solar energy can be leveraged to generate cheap and consistent source of energy.

 

Once a village is digitally connected, it becomes a fertile ground for the residents there to achieve better productivity in all aspects of life, be it agriculture, health, education and governance as well as enabling the government to reach the last mile with its future development and growth agenda.

 

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OPPORTUNITY

DAILY LEGAL GK

LEGAL NOTES

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Evidentiary value of extra judicial confession

The needs of extra judicial confession actually creep in when the urgency of the matter exceed fair judicial process. These are made by the party elsewhere then before a magistrate or in the court. The word used by the accused in such a confession weight the higher value that such exact words would be necessary to give the court an impression of what the true confession was. It can be made before a Magistrate who is not especially empowered to record confession u/s 164 CrPC or before a private individual. However unlike other form of confession extra judicial confession u/s 26 has its own limitations. Extra judicial confession made before persons with whom the accused had no relationship could not be relied upon. In Tarseeem Kumar v. Delhi Administration, 1995 the accused was acquitted on the ground that the extra judicial confession, as claimed, was made before stock witness who was casually knowing the accused. Such a extra judicial confession lacks credibility before the court. In state of Haryana v. Ved Prakash 1994 it was alleged that the accused made extra judicial confession to a Doctor and another person, both the strangers and the same was tape-recorded as if it was anticipated and the tape-recorder kept ready. Such a statement was not a confession in nature because of denoted influence and involuntariness of the accused to state such fact whether true or not. The nature of the confession is always voluntary where accuse submit himself before the fair people in just belief. Where extra judicial confession was made to a stranger and the excat words were not recorded and corpus delicit i.e, substance or foundation of an offence was not available, it was held that the confession could not be relied upon.

In Gura Singh v. State of Rajasthan 2001 the evidentiary value attached to the extra judicial confession was explained;

            “it is settled position of law that extra judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of the extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Further, relying upon the judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh the has again in Maghar Singh v. State of Punjab held that the evidence in the form of extra judicial confession made by the accused to witness cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by the way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be found on the evidence alone. In Kishore Chand v. State of H.P. this court held that an unambiguous extra judicial confession possess high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat, or promise envisaged u/s 24 of Evidence Act or was brought about in suspicious circumstances to circumvent section 25 and 26. The court is required to look into surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made the time and place of making it, the circumstances in which it was made have to be scrutinized.”

Thus, in examining the weight of evidentiary value of extra judicial confession it is necessary to check whether the accused was the free man while making such a statement which can in all the probabilities go against him and can criminalise him. 

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Rights of an Arrested Person

Cr P C gives powers to the police for arresting a person with such power Cr P.C also provides rights to an arrested person. The arrest should not only be legal and justified but it should be effected strictly according to procedure established by law.  Thus no person shall be deprived of his life and personal liberty except according to procedure established by law.  Rights of an arrested person are as follows –

1. Right to know the grounds of arrest – (Section 50(1)) – The foremost requirement of lawful arrest is notification of the reason of arrest with the charges against him. According to this provision, every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or any other grounds for such arrest.

Case law :- Udaybhan Shuki vs State of UP,   High Court held that right to be notified of grounds of arrest is a precious right of the arrested person. This allows arrested person to move to court timely for bail, opportunity to clarify any mistake, to begin to prepare his defence.

Re Madhu Limaye, Court held that detention becomes unlawful if the ground given were not proper and sufficient.

2. Right to be informed of the provision for bail – (Section 50(2)) – This section provides that where a police officer arrests any person other than a person accused of a non-bailable offence without warrant, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

3. Information of arrest to a person nominated by accused – (Section 50 A) This section  provides that once the arrested person is brought to the police station, the police officer must inform a relative or a friend, or any other person of the arrested person’s choice, about his arrest. He must also tell the place where the arrested person has been kept. Further he must note down the name and address of the person who was informed about the arrest.  It shall be the duty of the magistrate before whom such person is produced to verify that the provisions of this section were complied with

This section has been added by the decision of Supreme Court in Joginder Singh v. State of Punjab and DK Basu v. State of West Bengal.

 

4. Right to be produced before magistrate within 24 hours – (Section 57) – This section lays down that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s court.

In the case of Khatri (II) v. State of Bihar, SC has strongly urged upon the State and its police to ensure that this constitutional and legal requirement of bringing an arrested person before a judicial magistrate within 24 hours should be met.  It is essential that the magistrates should try to enforce this requirement and when they find it disobeyed, they should come heavily upon the police.

5. Right to be examined by a medical practitioner (Section 54) – This section gives the accused a right to get himself examined by a registered medical practitioner. When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during, the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which Magistrate shall, if requested by the arrested person so to do direct the examination of’ the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of Justice.

In case of Sheela Barse vs State of Maharashtra, SC held that even in cases were accused does not make any prayer it is duty of the magistrate to inform the arrested person about his right to get himself medically examined in case he has complaints of torture in police custody.

 

6. Right to consult Legal Practitioner – (Section 303)- It is mentioned that any person accused of offence before a Criminal Court or against whom proceedings are instituted under this Code, may have right to be defended by a pleader of his choice.

7. Right to free legal aid – (Section 304) – This section provides that where, in a trial before the Court of Session, the accused is not represented by a pleader, and where appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.

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Cheating: Civil Liability Versus Criminal Liability

The crucial aspect to be noted in the law relating to cheating is the intention of the person accused of cheating. Most often, especially in-issues relating to commercial transactions, the disputes are difficult to separate in terms of their civil and criminal liabilities. As stated earlier, -the crucial difference between a criminal cause of action as against a purely civil transaction is the intention of the-person at the time when the cause of action arose or the alleged offence commenced. The important aspect is to examine whether at that stage, the accused deliberately or intentionally induced the other person to part with property or to do an act or desist from doing an act, or whether it was only subsequently that the dispute arose.

 

Nageshwar Prasad Sinha Vs. Narayan Singh AIR 1999 SC 1480 the respondent- complainant, Narayan Singh, an advocate, had entered into an agreement of sale of certain properties with the accused in Patna city. Part of the consideration had been paid as earnest money. Possession had also been delivered to the complainant as per the sale deed. However, the complainant had not made the full payment as agreed upon, resulting in delay in completing the legal formalities of the sale. The complainant had also filed a civil suit for specific performance against the accused. Thereafter, the complainant filed a criminal complaint alleging committing of offence under section 420 IPC.

 

The Supreme Court considered ill(g) to section 415. IPC and stated that the latter part of the illustration showed that:

At the time when the agreement for sale was executed, it could have in no event been termed dishonest so as to hold that the complainant was cheated of the earnest money, which they passed to the appellants as part consideration, when possession of the total land involved in the bargain was passed over to the complainant-respondent, and which remains in their possession. Now, it is left to imagine who would be interested in delaying the matter and completing the bargain when admittedly the complainant have not performed their part in making full payment.

 

Thus, the court held that the liability, if any, was only civil in nature and not criminal.

 

Breach of contract and cheating: The distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct, but for which the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution under Sec. 420, I.P.C., unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed.

 

Cheating and extortion :The offence of cheating must, like that of extortion be committed by the wrongful obtaining of a consent. The difference is that the extortioner obtains the consent by intimidation and the cheat by deception.

Cheating, criminal breach of trust, and criminal misappropriation: Cheating differs from the last two offences in the fact that the cheat takes possession of property by deception. There is wrongful gain or loss in both cases and in both cases there is inducement to deliver property. In the case of cheating the dishonest intention starts with the very inception of the transaction. But in the case of criminal breach of trust, the person who comes into possession of movable property receives it legally but retains it. or converts it to his own use against the terms of the contract.

 

COMPARISON WITH ENGLISH LAW:

Dishonestly obtaining another’s property by deception with the intention of permanently depriving that person of his property is an offence under Sec. 15(1) of the Theft Act, 1968. This intent to deprive permanently is not an ingredient of the Indian Law. There is no deception unless a person is induced to believe as true what in fact is false. (An operative cause of obtaining the property). In this case certain person came to an elderly widow representing that they were tree surgeons and that they could provide her the “service for a certain money of felling her three deceased trees. She went to withdraw the money and also informed the police. They were arrested and held guilty of attempted deception.) Director of Public. Prosecution Vs. Ray, (1973) 3 AH ER. 131. Deception can also be in an implied form. The-most common example of which is a bouncing cheque. English Courts have held that when a man issues a cheque in favour of another he impliedly represents that he has an account at the bank, that the cheque would be honoured as he has requisite amount in the bank to his credit or he has an overdraft facility' or will immediately arrange it, so that the cheque does not bounce. If things turn out to be otherwise, the accused will have-cheated the other party by impliedly inducing him to accept a valueless cheque which he would not have accepted if he had been aware of the true state of facts is not free from difficulty on this score as decisions are conflicting and in some cases it has been held that if no express representation is made that he has the requisite amount in the bank or if no allegations are made in the complaint that bouncing of the cheque resulted in harm to the complainant in his body mind, reputation or property, the mere fact that the cheque was dishonoured would not make the accused liable for cheating. A contrary view appears to have been taken in Bholanath Arora case 1982 Cr LJ 1482 (Delhi) which is more in accordance with the views taken in the English decision than with the Indian cases cited above. It is felt that the view taken by the English courts on this point are more reasonable for even a fool would not accept a valueless cheque but for the implied representation that the cheque would be honored. It is hoped that law on this point would be brought a par with that of England if necessarily, by suitable legislation. (Necessary legislation was passed in 1988 by amending the Negotiable Instrument Act by providing that a dishonored cheque is a punishable crime.)

 

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