#Law report Archives - Prime Legal

12 Jan

Eknath Shinde Faction is the original Shiv Sena : Maharashtra Speaker in the crisis of split of shiv sena party

Uncategorized # Supreme Court, #Constitution, #Eknath Shinde, #Law report, #Political Crisis, #Shiv Sena

Background:

The Maharashtra political crisis revolves around the disqualification of Eknath Shinde Faction of the Shiv Sena party after the Maharashtra election in 2022. The same was challenged by Shinde in the SC. Thackeray contended to the SC that the MLA’s of the Shinde-led Shiv Sena party can only save themselves through merger to another party. The dispute arises on which association is the real or original “shiv sena”. Subsequently, the Thackeray Faction plea was rejected by the SC and the same was transferred to a 7-bench court. Thackeray faction pleaded that the election commission should be challenged on recognizing Eknath Shinde led shiv sena to be original shiv Sena. On May 2023, the SC held the verdict that Eknath Shinde will continue as the CM of Maharashtra. The election commission gave the Shinde led party the original shiv sena sign of bow and arrow and the official name of shiv sena.

Current Scenario:

The SC gave appropriate notice to the Speaker, Rahul Narwekar to adjudicate on the matter relating to disqualification by January 10^th 2024 and criticized the delay in adjudication process.

The Maharashtra Legislative assembly speaker, Rahul Narwekar gave a final verdict that the Eknath-Shinde led party as the original Shiv Sena party. He also rejected the disqualification notice produced by Thackeray to disqualify 16 MLA’s of the ruling party, including the chief minister, Eknath Shinde.

The challenge of Eknath Shinde against Thackeray is that he is the paksh pramukh which means he is the party head of the shiv sena party on the basis of legislative majority and Thackeray did not have the power to remove him. However, as per the 1999 party’s constitution amendment, the national executive as the highest party body.

References were taken to the 10^th Schedule of the Constitution which mentions about Anti-defection laws. It states that a member shall be disqualified if he joins another political party after election takes place. It also mentions that a disqualification on the name of defection cannot be applied in the cases of merger. Under the 10^th Schedule, the speaker acts in the power of a judge and decides whether the grounds of disqualification justified.

The speaker also stated that in the name of 10^th Schedule, a dissent or disqualification cannot be enforced within a party over disciplinary issues. The main reason for upholding Shinde faction to be the original shiv sena was because Thackeray faction failed the test of legislative majority. The Shinde faction had the majority of the MLA’s present in the shiv sena members with 37MLA as opposed to 18MLAs in the Thackeray faction.

Interpretation of Schedule 10 of the Constitution:

The genesis of Schedule 10 of the constitution states that a defense for anti-defection is based on the merger of parties and not the split of parties. In the current matter, the factual basis of Shinde let party is that it did not merge to another party but rather split from shiv sena. This is not permitted under the Schedule 10 of the constitution.

The speaker contended that whoever the majority MLA lies with is the original party. It is argued that the test of “legislative majority” is not recognized under the 10^th Schedule as the only recourse available for anti defection is merger. It should be noted that from the 2019 elections, the Shiv Sena party was fundamentally led by the Thackeray faction and not by the Shinde faction. The supreme court on its verdict regarding the matter held that a legislative party should be distinguished from a political party. It also held that the power to appoint a government whip lies within the political party which was Thackeray led government at that time.

The Thackeray led faction has planned to challenge the verdict in the SC on the principal contention of challenging the rule of ‘majority legislators’ not being the core principle of Schedule 10.

Conclusion :

The political dynamic of Maharashtra’s shiv sena party is that of game of cat and mouse. Despite the CM being won on majority supporting him, the challenge to the verdict shows a long lasting battle between Shinde and Thackeray in the upcoming years.

The court is also to fact the question whether the parliament or the speaker should have the power of adjudication without having bias over the parties involved.

5 Jan

Custodial interogation is necessary for advocates accused of serious crimes: Bombay High court

Prime Legal

Uncategorized #Bombay HC, #Forgery, #Law report, #Legal News, #murder

Title: Hiral Chandrakant Jadhav Vs The State of Maharashtra

Citation: ANTICIPATORY BAIL APPLICATION NO.3699 OF 2023

Coram: Justice SARANG V. KOTWAL

Date: 03/01/24

Facts

The Applicant, who is an Advocate, is seeking anticipatory bail in connection with a serious offense. The Applicant was approached by a person whose husband was arrested under IPC Section 302. The Applicant assured the release on bail for a fee of Rs.65,000.The Advocate claimed her husband was granted bail, accepted Rs. 25,000 more, handed over a sealed envelope with alleged documents, but the husband was not released. After receiving the payment, the Applicant claimed that the bail was granted, but the documents provided were incomplete. The Applicant repeated this process, even providing a fake bail order, and the person realized they were deceived, leading to the filing of the FIR. The Applicant is now anticipating arrest.

Laws Involved

Section 302 of IPC

Punishment for murder

Section 420

Cheating and dishonestly inducing delivery of property

Section 465

Punishment for forgery

Issues

Whether the Applicant, engage in fraudulent activities by allegedly taking money for securing bail, and deceiving the informant in connection with a criminal case?

Judgement

The accused, an advocate, has been found by the court to have committed major offenses, including violating Section 420 of the IPC, which have damaged the victim’s reputation and undermined the integrity of the legal system. The court highlights the seriousness of the crime and the necessity of questioning suspects while they are in custody in order to find possible accomplices and similar situations. Thus, as a result court rejects the application, stating that no mercy can be awarded at this time.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by:- Sanjana Ravichandran

Click here view judgement

17 Nov

One Can Not Be Punished Unless The Crime Is Proved Beyond Reasonable Doubt: High Court of Lucknow

Prime Legal

Blog #evidence, #JUSTICE, #law, #Law report, #rape

Citation: Criminal Appeal No. – 2899 of 2003

Coram: Hon’ble Ashwani Kumar Mishra & Hon’ble Syed Aftab Husain Rizvi

Decided on: 08.11.2023

Introduction:

The present appeals have been filed on behalf of accused-appellants- Arvind Kumar, Surjeet, and Babloo, who have been convicted by judgment and order dated 30.05.2003 passed by Additional Sessions Judge/ F.T.C. First, Jalaun in Session Trial No.77 of 2000 (State of U.P. vs. Arvind Kumar and others) arising out of Case Crime No.337 of 1999, under Sections 376(2)(g) and 302/34 I.P.C., Police Station- Kuthond, District- Jalaun and sentenced the appellants to 10 years rigorous imprisonment & fine of Rs.5000/- under Section 376(2)(g) and life imprisonment & fine of Rs.5000/- under Section 302/34 I.P.C.

Facts:

The F.I.R. of this case was lodged on 30.11.1999 at 19:45 P.M., under Section 376/302 I.P.C. against Surjeet, Arvind Kumar, Babloo, and Raj Kishore on the written information alleging therein that on 30.11.1999, the 13-year-old daughter of informant had gone to collect the grass with Ram Prasad, Babu, and Pramod Kumar. At about 5 P.M., the informant came near the Arhar field of Brij Bhushan Tiwari to collect the grass cut by his father where he heard the screams of his daughter from the Arhar field.

On hearing the screams, the informant, his father, Babu, and Pramod Kumar entered the Arhar field. They saw Surjeet, Arvind, Babloo and Raj Kishore were strangulating her daughter by tying her neck with a bed-sheet. On exhortation, the accused ran away. When the informant reached near the victim, she had died. The accused have also committed sexual assault on her because her private part was bleeding and semen spots were present on the clothes. On hearing the noise, several villagers came to the spot. The informant leaving his family members and other villagers beside the dead body, came to the police station to lodge the F.I.R.

The informant P.W.-1, in his examination-in-chief has stated that Surjeet, Babloo, Arvind Kumar, and Raj Kishore who live in his village Panditpur, sexually assaulted her 13-year-old daughter and committed her murder. The incident occurred in the Arhar field of Brij Bhushan Tiwari.

Babu P.W.-2 has not supported the prosecution case. The witness has stated that he knows the daughter of the informant and the accused. The daughter of the informant is not alive. He does not know what incident had occurred with her and how she died. Witness has denied that accused persons sexually assaulted the victim and committed her murder. The witness has been declared hostile. Witness in his cross-examination by the defence has stated that Munni Devi, the wife of Raj Bahadur has died on the date of the incident. Her last rites were performed at about 4 P.M. Babloo, Arvind and Surjeet were present in the last rites of Munni Devi.

Another evidence produced by the prosecution is recovery of slipper of right foot of accused Raj Kishore, on his pointing out from the field of Brij Bhushan Tiwari. According to prosecution the other slipper of the left foot, however, was found on the spot by the Investigating Officer during spot inspection.

Court’s Analysis Judgement:

From the analysis of evidence on record, it is clear that the sole testimony of informant P.W.-1, who is a chance witness, is not inspiring and trustworthy. There are serious discrepancies, which makes it highly doubtful that he has seen the occurrence. No doubt that the victim has been sexually assaulted and was strangled to death but it is not proved that appellants accused are the real culprits and they have committed the offence. Their false implication on the basis of suspicion or with ulterior motive cannot be ruled out. There is no sufficient evidence on record to prove the prosecution case beyond reasonable doubt.

The learned trial Court had failed to notice the serious discrepancies in the ocular testimony of informant P.W.-1, who is also a chance witness and has erred in relying on it. The finding of guilt returned by the trial Court on the basis of his testimony is not sustainable.

Written by- Sushant Kumar Sharma

Click here to view judgement