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Persons with disability have the right to get higher education too: Kerala High Court

Like any other citizen, persons with disability also have the right to get not only the basic education but also higher education. The judgement was given by P.B. Suresh Kumar, J. in the matter of Aswathy. P vs Union of India [WP(C).No.27225 OF 2020(C)].

The petition was filed by a person suffering from Cerebral Palsy. The issue relates to the rights of the petitioner to claim admission to MBBS course against the quota. earmarked for ‘Persons with Disability’. The petitioner had appeared for NEET, after which in the second round of Government Medical College, Manjeri.

The Court passed an interim order directing the respondent to admit the petitioner provisionally to the MBBS course. The petitioner’s cerebral palsy was accessed at 63.3% and was eligible for admission as per the regulations. However, the respondent found her ineligible for the admission due to the fact that she was not only suffering from cerebral palsy but also from Triplegia, which falls under residuary category ‘others’ made mention of under the general category ‘Locomotor Disability’.  A person suffering from a locomotor disability is required to show that both their limbs are intact, with sensation and with sufficient strength and range of motion. 

The Court observed, that “in matters relating to admission to educational institutions, especially against the quota earmarked for persons with disability, what is to be considered is as to whether the candidates are in a position to perform the essential functions of the course and if they are able to perform the essential functions of the course, admission shall not be denied to them on the ground of their disability.”

The judgement stated, “Every person shall be presumed to be capable of learning, and denial of opportunity to pursue a course which one seeks to undertake on the ground of disability would amount to denial of opportunity to learn, and would be discriminatory. As far as persons with disability are concerned, if only they are given education, they will be able to lead an independent, economically self sufficient, productive and fully participatory life. It is with the aforesaid objective that the Act was brought into force, and having regard to the provisions of the Act, it is the obligation of the State to do all that is necessary to empower persons with disability to foster their participation in all aspects of life.”

The writ petition was hence allowed and the interim order passed by the court earlier, directing the respondent to admit the petitioner in MBBS course was made absolute.

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Courts to not take notice of complaint u/s 138 of NI Act unless accompanied with an application u/s 142 of the Act : Himachal Pradesh High Court

One day has to be excluded for counting the one month limitation period under the Negotiable Instruments Act, 1881. The High Court bench consisting of J. Suresh Kumar Kait in the matter of Simranpal Singh Suri v. State & Anr. [CRL.M.C. 2536/2020 & CRL.M.A. 17950/2020] held that the lower courts had erred in their findings and allowed to appeal claiming the exception of limitation period.

The petitioner had borrowed a sum of Rs. 10 Lacs from the respondent who had lent the same via two cheques. After approximately three years, the respondent approached the petitioner for repayment of loan amount, to which petitioner assured that he would return the entire amount and discharged his liability by issuing cheques, which was dishonored on presentation in the bank with the remarks “funds insufficient” and was returned. The complainant stated that when he informed the petitioner about the dishonor of the cheque, he paid no heed and thereafter, the complainant served a legal demand notice, after which the petitioner again failed to make the payment. The complainant under Section 138 of the Negotiable Instruments Act instituted against the petitioner before the learned Metropolitan Magistrate who issued summons against the petitioner. This order was challenged by the petitioner in a Criminal Revision Petition, wherein again the petition was dismissed with a cost of Rs. 50,000/- which has been challenged in the present petition.

The Learned Counsel for the petitioner submitted that the Metropolitan Magistrate had no jurisdiction to take cognizance of the complaint u/s 138 of the NI Act without it being accompanied by an application under Section 142(b) of the same, condoning the delay in filing the complaint. The counsel added, relying on the case of Rameshchandra Ambala Joshi v. State of Gujarat [(2014) 11 SCC 759], that the Magistrate did not take note of the fact that the complaint was filed beyond the limitation period and did not rightly calculate the days.

The High Court, relying on the case of M/s Saketh India Limited & Ors. v. M/s India Securities Limited [(1999) AIR Supreme Court 1090], found that The 15 days notice period in this case commenced on 04.06.2019 and lapsed on 18.06.2019….one day has to be excluded for counting the one month limitation period and, therefore, excluding the day of 19.06.2019, the limitation period started from 20.06.2019 and the limitation period expired with the day in the succeeding month immediately preceding the day corresponding to the date upon which the period started. Consequently, the limitation period in this case, which commenced on 20.06.2019, expired in the succeeding month on a day preceding the date of commencement i.e. 19.07.2019. Admittedly, the complaint in this case was instituted on 20.07.2019 i.e. 01 day after the limitation period had expired. Hence, both the courts below have fallen in error while computing the period of limitation. Moreover, at the time of filing, the complaint was not even accompanied by an application under Section 142 (b) NI Act for condoning the delay”.

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Bail can be granted to pregnant lady even when offences are punishable with death: High Court of Karnataka

When a woman has been convicted of charges that are punishable with death or life imprisonment, she can be granted bail if she is pregnant and due care is necessary in such a case, under Section 437(1) of the CrPC. This was decided in the case of Rekha v. Gangamma [Criminal Petition No. 200107/2021] by the Hon’ble Justice Vishwajith Shetty in the High Court of Karnataka.

The facts of the case are that complainant’s younger brother Mounesh had fallen in love with woman named Manjula , the daughter of Sanna Fakeerappa who is accused No.1 in this case. In spite of the fact that the accused was not agreeable for the marriage of their daughter, they both got married and started living separately. The couple used to come to the house of complainant and this irked accused and his family members who developed ill-will against the complainants. After a series of quarrels that followed, the accused in this case began assaulting the complainants and his family members with weapons which resulted in the death of five people. On the basis of this, the police filed an FIR, and the petitioners were arrested with charges framed under Section 143, 147, 148, 120-B, 504, 448, 427, 307, 302, 114 read with Section 149 of IPC.

This petition in the high court was filed to grant anticipatory bail to the woman as the she is pregnant and to the co-sister as she is the only one who can take care of her during this time. The contentions produced by the petitioner were that they have been in custody for 6 months and that the investigation in the case is completed. The allegation against the petitioners is that they instigated the accused to commit the crime. She is pregnant and due to deliver in the second month of this year, the medical records produced in the court indicated that due care and special attention should be given.

The government pleader opposed the bail application on the ground that the petitioners are involved in ta heinous and barbaric incident of murdering five persons. In view of the manner in which the crime is committed, they are not entitled to any relief from the court.

The court pronounced its judgement in favor of the petitioners stating that Section 437(1) of Cr.P.C. provides to consider the application of a woman for granting bail even in the cases where the offences are punishable with death or imprisonment for life. The court also went on to observe that the other family members of the petitioner are accused and convicted in the case so the second petitioner must be granted bail to take care of the pregnant woman It said that “a perusal of the charge sheet would go to that allegation against the petitioners is that they have instigated accused and there are no over-acts of assault alleged against them in the charge sheet. After considering all the arguments and nature of allegations, the court said that the grant of regular bail would be considered in favour of the petitioners.”

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Cases to be transferred to the CBI by writ courts only in cases of unfair investigation: High Court of Calcutta

Section 173 CrPC cannot be always used by the writ courts to transfer cases from police department to independent agencies. This was held In the case of Jyotsna Roy v. State of West Bengal and Ors [W.P.A No.2019 of 2019. by a single judge bench consisting of Hon’ble Justice Moushumi Bhattacharya in the High court of Calcutta.

Background facts of this case are that a dead body of 52 year old man  who was in service under the capacity of Sub-Inspector of the G.D. Cell of Sashastra Seema Bal (Intelligence Bureau) found beside a railway track between a  Station with several injury marks all over the body.  This writ petition was filed by the wife of the deceased for speedy investigation and producing the culprits before court to receive justice. The matter has been delayed for some time and in the year2019, this Court expressed its views for the delay in conducting the investigation and ordered that investigation be completed within 4 weeks. The final investigation report had been filed by the investigating officer.  The petitioner through this petition sought an order for reinvestigation by an independent agency on the ground that the investigation has not been conducted in a satisfactory manner.

The question involved in this case is whether the facts of the proceeding are of such nature, that it requires fresh investigation in to the matter from another agency. The court regarded the most important point to decide upon would on the merit in the contention brought by the petitioner‟s husband that first the cause of death should be ascertained and the culprits then should be brought to book if the cause of death is found to be unnatural.

The court observed that there were several loopholes in the manner of collecting vital evidence in the case. For dislodging the presumption of homicidal death, it was imperative that evidence is collected for establishing that death occurred as a result of an accident.

Even as the court stated that the investigation was not done in the rightful manner, it also said that Section 173(8) cannot prevent a Writ Court from passing further directions if the court deems it appropriate to do so in fit circumstances. The section is premised on the action of the Officer-in-Charge of the concerned police station on obtaining further evidence after a final report of the investigation has been made and the scope of the provision is limited in operation and is dependent on the Officer chancing upon a piece of evidence after completion of investigation.

To deal with the matter of transferring the case to another agency, the court relied upon  Vinay Tyagi vs. Irshad Ali Deepak & Ors. [(2013) 5 SCC 762], the Supreme Court, held ”it is a well settled canon of criminal jurisprudence that superior courts have the jurisdiction under Article 226 of the Constitution of India to direct further investigation. The Court explained that ’fresh’, ‘de novo’ and ‘re-investigation’ are synonymous expressions and the superior courts are also vested with the power of transferring investigation from one agency to another provided the ends of justice demand such an action. The Supreme Court reiterated that in appropriate cases, it is open to the court to hand over the investigation to a specialized agency.”

The court went on to highlight importance of good investigation saying “Fair trial is a sine qua non for instilling faith in the public that the truth behind a crime will be revealed through an impartial investigation”  An order for reinvestigation by an independent agency was thus made.

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A ‘lease’ cannot be equated to ‘property’ under Transfer of Property Act: High court of Calcutta

When estimating the cost of stamp duty of a gift deed, a leasehold share cannot be gifted under the definition of property as per the Transfer of Property Act. This was held in the case of Atma Ram Sarag v. State of West Bengal and Ors.[WPO No. 509 of 2019] by Hon’ble Justice Sabyasachi Bhattacharyya in the High court of Calcutta.

The governor of West Bengal granted lease of a plot in favor of a person who then sold his leasehold rights to the petitioner in this case. The petitioner executed a gift deed of his undivided share in the aforementioned property for his brother. While carrying out the steps required for legalizing the gift deed made, the petitioner approached the registrar for issuing the stamp duty. He was told that the cost would be assessed at half percent of market value normally followed for gift deeds executed in favor of blood relations. However, after depositing the money the petitioner was told that the registration process could not be completed as the amount ascertained had to be at 6 percent value of the market value. This petition was filed to reduce the amount of stamp duty back to being half percent of market value.

As per Article 33(i) of Schedule of the Indian stamp Act, the stamp duty should be calculated at half percent of market value in the said case. The major issue here was around the applicability of the term ‘property’ for a leasehold share gifted.

The counsel relied upon the case of Umrao Singh v. Kacheru Singh and Ors. AIR 1939 All 415 (FB) where it was held that the “word property may be used in the objective sense of concrete thing which is th subject of ownership or other right, or it may be used in the sense of the rights and interests of the ownership of the owner or other persons in that property”.

The court stated that to determine whether the article of the act is applicable to the present transfer, a close analysis of the description of instruments as per the respective statues is necessary. In ordinary state of affairs, the court would award.

The court explained that the general concepts of property in jurisprudence are fluid in nature and encompass the entire gamut of the bundle of rights flowing from ownership of an immovable property. It further stated that “a lease, for whatever period, cannot be elevated to the plane of ‘property’ as envisaged in Section 122 of the Transfer of Property Act, which governs gifts. ‘lease’, as defined in Section 105 of the Transfer of Property Act, on the other hand, is a transfer of a ‘right to enjoy’ such property, made for a certain time, as opposed to the transfer of the property itself”.

In view of the specific distinction between “gift” and “lease”, as made in the Transfer of Property Act, the former being a transfer of the property itself while the latter a transfer of right to enjoy property, the general propositions advanced by the petitioner did not hold ground in this case. It finally stated that there was “no illegality on the part of the Registering Authorities in demanding stamp duty in terms of Article 63 of Schedule IA of the Stamp Act” and refusing the final registration of the document-in-question on the ground of insufficiency of stamp duty.

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