The VSK Law Firm.

From 1st April, 2012, Limitation of cheques and drafts to be reduced to three months from six months.

2011-11-06T16:16:00.001+05:30

Three-month validity of cheques, drafts from April 1

NEW DELHI: The life of your cheques and bank drafts has just been halved to three months.
In a notification issued on Friday evening the Reserve Bank of India said that from April 1, 2012, banks, drafts, pay orders and bankers' cheques will have to be presented within three months of the date of issue of these instruments. So, the next time you issue a cheque or get a draft prepared, make sure it is presented quickly.
The change has been prompted by instances of misuse of the payment instruments. "It has been brought to the notice of Reserve Bank by Government of India that some persons are taking undue advantage of the said practice of banks of making payment of cheques/drafts/pay orders/banker's cheques presented within a period of six months from the date of the instrument as these instruments are being circulated in the market like cash for six months," the notification said.

Banks have been instructed to print the change on the cheque leaves and drafts that will be issued from April 1, 2012, so that consumers are aware of the new guidelines.
Over the last few years, a system has evolved in which a cheque issued in favour of person A would be transferred to person B, on receipt of a commission as banks were willing to credit them into someone else's account. With the new norms, RBI hopes to reduce such instances of misuse.
Along with this change it has also asked banks to ensure that account payee cheques and drafts are only credit into accounts of the person who is the recipient.
Although the break up was unavailable, bankers said the move would affect individuals more as companies usually deposited cheques and drafts within hours of receiving it as they do not want to lose out on any interest income.

Source: http://timesofindia.indiatimes.com/business/india-business/Three-month-validity-of-cheques-drafts-from-April-1/articleshow/10625630.cms

Holidays on Poll days for Local Body Elections, 2011

2011-10-12T21:03:00.001+05:30

ABSTRACT
Holidays – Holidays on Poll days for Local Body Elections, 2011 – Declaration of
holiday on the dates of poll [17.10.2011 (Monday) and 19.10.2011 (Wednesday)] as Holidays – Notified.
Rural Development and Panchayat Raj (PR-1) Department
G.O.(Ms.) No.76 Dated 11.10.2011
Read:
Tamil Nadu State Election Commission’s S.O.No.47/2011/TNSEC/PE-I, dated
21.9.2011.
* * *
ORDER:
The Tamil Nadu State Election Commission has notified the schedule for the ordinary elections to Local Bodies. The 1st phase of election is on Monday, the 17th October, 2011 and the 2nd phase of election is on Wednesday, the 19th October, 2011.
The Government have decided to declare the said days of Poll as public holidays under section 25 of the Negotiable Instruments Act, 1881 (Central Act XXVI of 1881). All Government Offices including industrial establishments of the Government and Government controlled bodies and all educational institutions will remain closed on
17.10.2011 in the areas where polling takes place in the first phase and on 19.10.2011 in the areas where polling takes place in the second phase.
2. Accordingly, the following Notification will be published in an Extra-ordinary issue of the Tamil Nadu Government Gazette, dated 11.10.2011.

NOTIFICATION
Under the Explanation to section 25 of the Negotiable Instruments Act, 1881 (Central Act XXVI of 1881), read with the Notification of the Government of India, Ministry of Home Affairs No.20-25-26, Public-I, dated the 8th June 1957, the Governor of
Tamil Nadu, hereby declares Monday, the 17th October 2011 and Wednesday, the 19th October 2011, the dates on which the poll for the ordinary election to the local bodies 2011 will take place, to be public holidays, in those areas wherever such poll takes place.

(BY ORDER OF THE GOVERNOR)

Debendranath Sarangi,
Chief Secretary to Government.
To
The Director of Stationery and Printing, Chennai-2.
.. 2 ..
The Works Manager, Government Central Press, Chennai-79.
(for publication of the Notification in an Extra-ordinary issue of Tamil Nadu Government
Gazette dated 11.10.2011and to supply 1200 copies to Government.
The Secretary, Tamil Nadu State Election Commission, Chennai-106.
All Secretaries to Government, Chennai-9.
All Heads of Departments.
All District Collectors.
The Commissioner, Corporation of Chennai, Chennai-3.
The Registrar, High Court, Chennai-104.
The Secretary, Tamil Nadu Public Service Commission, Chennai-2.
The Manager, RBI, Chennai-1 and other leading Banking Institutions.
The Tamil Development, Religious Endowments
and Information Department, Secretariat, Chennai-9.
(for issue of Press Release and Coverage of TV & Radio)
Copy to:
The Secretary to Governor, Raj Bhavan, Guindy, Chennai-32.
Honourable Chief Minister’s Office, Chennai-9.
All Public Sector Undertakings/Corporations.
All Universities of the State,
All Central Government Offices.
The Chairman, Chennai Port Trust, Chennai-1.
The Deputy Principal Information Officer,
Press Information, Government of India, Chennai-1.
The Director of National Informatics Centre, Chennai-9.
// Forwarded / By Order //
SECTION OFFICER.

National Green Tribunal - The five places of its sitting are at Delhi, Bhopal, Pune, Kolkata and Chennai.

2011-09-21T07:09:00.001+05:30

National Green Tribunal Act, 2010: https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1D7MZ_yKj7ZOWVkMjcxNjgtMGI4OC00MGU3LWIxMDUtY2NhMGNiZjg0MWY0&hl=en_US

The Tribunal has the same powers as are vested in a civil court under the Code of Civil Procedure, 1908.
The Tribunal shall not be bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice.
The Tribunal’s dedicated jurisdiction in environmental matters shall provide speedy environmental justice and help reduce the burden of litigation in the higher Courts.
The Tribunal is mandated to make an endeavor for disposal of applications or appeals finally within 6 months of filing of the same.
Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure for making itself more accessible.
The Tribunal has the original jurisdiction over all civil cases where a substantial question relating to environment, including enforcement of any legal right relating to environment is involved.
The Tribunal shall hear disputes arising out of the implementation of environmental laws mentioned in Schedule I of the NGT Act, 2010.
The Government is empowered to add any Act of Parliament having regard to objectives of environmental protection and conservation of natural resources.
The Tribunal is competent to provide relief over and above as is admissible under the Public Liability Insurance Act, 1991.
In order to ensure access to justice, pollution control boards and local authorities have also been empowered under the NGT Act to file an application or appeal before the Tribunal on behalf of the affected person.
Appeal against any order of the Tribunal shall lie to the Supreme Court.
No civil court shall have jurisdiction to entertain any appeal in respect of any matter which the Tribunal is empowered to determine under its appellate jurisdiction.
No injunction shall be granted by any civil court or other authority in respect of any order passed by the Tribunal.
Consequent to enforcement of the National Green Tribunal Act, 2010, the National Environment Tribunal Act, 1995 and the National Environment Appellate Authority Act, 1997 have been repealed. The cases pending before the National Environment Appellate Authority at the time of establishment of the National Green Tribunal have been transferred to the National Green Tribunal.
The five places of its sitting are at Delhi, Bhopal, Pune, Kolkata and Chennai.
Delhi has already been specified as ordinary place of sitting of NGT vide Government of India notification dated 5.5.2011.
The Tribunal at Delhi has already commenced its hearings from 4th July, 2011.
The applicants can file applications/petitions before the Tribunal at Delhi till other benches of the Tribunal become functional.
The infrastructure at the 5 places of sitting of the Tribunal is being set up for making it fully functional.
At present, the Tribunal consists of Chairperson and 3 Expert Members and 2 Judicial Members. The Expert Members are experts in physical and life sciences, engineering and law including persons having practical knowledge and administrative experience in the field of environmental policy and regulation. The Ministry is in the process of filling up of the remaining vacancies of Members in the Tribunal since NGT Act, 2010 provides for a minimum of 10 Expert Members and equal number of Judicial Members

The National Green Tribunal (NGT) has been established under the NGT Act, 2010 on 18th October, 2010 is headed by Chairperson L.S. Panta, a Retired Supreme Court Judge. The Tribunal has been established for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.

The Law Commission in its 186th Report recognised the inadequacies of the existing appellate authorities constituted under various environmental laws and reviewed their position with a view to bring uniformity in their constitution and the scope of their jurisdiction. The Law Commission undertook the study pursuant to the observations of the Supreme Court regarding the need for constitution of environmental courts. The Law Commission, in its said report, recommended for setting up of environmental courts in each State or for a group of States for exercising all powers of a civil court in its original jurisdiction and with appellate judicial powers against orders passed by the concerned authorities under the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991.

The Law Commission’s Report was considered in the Ministry. In view of the growing environmental challenges, it was decided to set up a green tribunal as a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues.

Rajiv Gandhi Assassination case–Full Judgment.

2011-09-11T21:19:00.001+05:30

Now after twenty years of assassination of former prime minister Mr.Rajiv Gandhi, his trial is doing another round.

If anybody is interested in reading the judgment of the Supreme Court of India in that case may click here to read it:

https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1D7MZ_yKj7ZMDMzOTM0NDktYTE1ZC00ZmM1LThmZDAtODk4MmE5YWQ2MDlm&hl=en_US

Madras HC sitting arrangements–13.6.11 to 17.6.11.

2011-06-11T18:01:00.001+05:30

URGENT MOTIONS AND ADMISSIONS ARE TO BE POSTED AS FOLLOWS :-

    1)   Motions and Admissions in Writ Appeals, WP (PIL), WP Judicial Service Matters and other DB Matters.
                                     - FIRST BENCH.

    2)   Motions and Admissions in Green Bench Matters, WP-DB Service and
          CMDA & Encroachment Matters.
                                     - ELIPE DHARMA RAO  &  M.VENUGOPAL   JJ

    3)  Motions and Admissions in DRT & DRAT Matters, Cont.Petitions &
         Cont.Appeals, WP pertaining to Caste/Community Certificates and
         CMA (DB) - Customs and Central Excise Matters
                                     - D.MURUGESAN & K.K.SASIDHARAN  JJ.

    4)  Motions and Admissions in HCP and Crl.Appeals (DB)
                                     - C.NAGAPPAN  &  P.R.SHIVAKUMAR   JJ

    5)   Motions and Admissions in OSA & LPA
                                     - R.BANUMATHI & V.PERIYA KARUPPIAH   JJ

   6)   Motions and Admissions in CMA (DB) - except Customs & Central Excise Matters,
         STA, SA (Act 31/1978) and CMP in AS.
                                     - K.MOHAN RAM  &  M.DURAISWAMY    JJ

   7)   Motions and Admissions in WP - Education and Gen.Misc.
                                     - P.JYOTHIMANI   J

   8)  Motions and Admissions in Tax Matters
                                     - CHITRA VENKATARAMAN  &  P.P.S.JANARTHANA RAJA  JJ

   9)   Motions and Admissions in Crl.Appeal and Crl.Revision
                                     - K.N.BASHA  J  from  14-06-2011.

   10) Motions and Admissions in WP (Labour & Service)
                                     - N.PAUL VASANTHAKUMAR   J

   11) Motions and Admissions in WP -  Tax (Income Tax, Sales Tax & all other Tax Matters),
         MV, MV Tax, M & M, Industries, C & CE and Prohibition and Excise.
                                     - M.JAICHANDREN  J

   12)  Motions and  Admissions in WP - EB, Land Acq., Local Authority, ULC,
          Co-op, Forest, APM,Cinema, LR  &  LT.
                                     - R.SUDHAKAR  J

   13) Motions and Admissions in CRP (NPD).
                                     - S.TAMILVANAN  J

   14) Motions and Admissions in Company Appeals, Company Petitions
          and Arbitration Matters.
                                     - VINOD K.SHARMA   J  from  14-06-2011.

   15)  Motions in all OAs, Application in Civil Suits, OPs (other than Arbitration Matters)
          and Insolvency Petitions.
                                     - V.RAMASUBRAMANIAN  J

   15a) Motions and Admissions in Company Appeals, Company Petitions
            and Arbitration Matters.
                                     - V.RAMASUBRAMANIAN  J  on 13-06-2011.

   16)  Motions and Admissions in SA.
                                     - G.RAJASURIA  J

   17) Motions and Admissions in Crl.OP in Bail and Anticipatory Bail
                                     - T.SUDANTHIRAM   J

   18) Motions and Admissions in CRP (PD), CMSA and Tr.CMP.
                                     - R.SUBBIAH  J

   19)  Motions and Admissions in Crl.OP (U/s.482 of Crl.PC)
                                     - C.T.SELVAM    J

   20)   Motions and Admissions in CMA
                                     - C.S.KARNAN   J

   21)   Motions and Admissions in Crl.Appeal and Crl.Revision
                                     - R.MALA  J  on 13-06-2011.

   22)  Motions in CMPs in AS.
                                     - T.MATHIVANAN   J

   23) Urgent Admissions & Lunch Motions can be moved before the
         respective Hon'ble Judges.

   24) Original Side matters will be posted before the MASTER daily .

   25) Appellate Side matters will be posted before the DEPUTY REGISTRAR (Appellate-Side).

   26) THE ABOVE ARRANGEMENTS ARE SUBJECT TO MODIFICATION.

Freedom of the press and journalistic ethics–Hon’ble Mr.Justice Markandey Katju, Judge, Supreme Court of India.

2011-06-04T09:35:00.001+05:30

Freedom of the press and journalistic ethics

Markandey Katju

Freedom is important, so is responsibility. In countries like India, the media have a responsibility to fight backward ideas such as casteism and communalism, and help the people fight poverty and other social evils.

Freedom of the press and journalistic ethics is an important topic today in India — with the word ‘press' encompassing the electronic media also. There should be a serious discussion on the topic. That discussion should include issues of the responsibilities of the press, since the media have become very prominent and very powerful.

In India, freedom of the press has been treated as part of the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution, vide Brij Bhushan and Another vs. The State of Delhi, AIR 1950 SC 129 and Sakal Papers (P) Ltd vs. Union of India, AIR 1962 SC 305, among others. However, as mentioned in Article 19(2), reasonable restrictions can be placed on this right, in the interest of the sovereignty and integrity of India, the security of the state, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Hence, freedom of the media is not an absolute freedom.

The importance of the freedom of the press lies in the fact that for most citizens the prospect of personal familiarity with newsworthy events is unrealistic. In seeking out news, the media therefore act for the public at large. It is the means by which people receive free flow of information and ideas, which is essential to intelligent self-governance, that is, democracy.

For a proper functioning of democracy it is essential that citizens are kept informed about news from various parts of the country and even abroad, because only then can they form rational opinions. A citizen surely cannot be expected personally to gather news to enable him or her to form such opinions. Hence, the media play an important role in a democracy and serve as an agency of the people to gather news for them. It is for this reason that freedom of the press has been emphasised in all democratic countries, while it was not permitted in feudal or totalitarian regimes.

In India, the media have played a historical role in providing information to the people about social and economic evils. The media have informed the people about the tremendous poverty in the country, the suicide of farmers in various States, the so-called honour killings in many places by Khap panchayats, corruption, and so on. For this, the media in India deserve kudos.

However, the media have a great responsibility also to see that the news they present is accurate and serve the interest of the people. If the media convey false news that may harm the reputation of a person or a section of society, it may do great damage since reputation is a valuable asset for a person. Even if the media subsequently correct a statement, the damage done may be irreparable. Hence, the media should take care to carefully investigate any news item before reporting it.

I know of a case where the photograph of a High Court judge, who was known to be upright, was shown on a TV channel along with that of a known criminal. The allegation against the judge was that he had acquired some land at a low price misusing his office. But my own inquiries (as part of which I met and asked questions to that judge and many others) revealed that he had acquired the land not in any discretionary quota but in the open market at the market price.

Also, sometimes the media present twisted or distorted news that may contain an element of truth but also an element of untruth. This, too, should be avoided because a half-truth can be more dangerous than a total lie. The media should avoid giving any slant to news, and avoid sensationalism and yellow journalism. Only then will they gain the respect of the people and fulfil their true role in a democracy.

Recently, reports were published of paid news — which involves someone paying a newspaper and getting something favourable to him published. If this is correct, it is most improper. Editors should curb this practice.

Media comments on pending cases, especially on criminal cases where the life or liberty of a citizen is involved, are a delicate issue and should be carefully considered. After all, judges are human beings too, and sometimes it may be difficult for them not to be influenced by such news. The British law is that when a case is sub judice, no comment can be made on it, whereas U.S. law permits such comment. In India we may have to take an intermediate view on this issue: while on the one hand we have a written Constitution that guarantees freedom of speech in Article 19(1)(a) — which the unwritten British Constitution does not — the life and liberty of a citizen is a fundamental right guaranteed by Article 21 and should not lightly be jeopardised. Hence, a balanced view has to be taken on this.

Also, often the media publish correct news but place too much emphasis on frivolous news such as those concerning the activities of film stars, models, cricketers and so on, while giving very little prominence to much more important issues that are basically socio-economic in nature.

What do we see on television these days? Some channels show film stars, pop music, disco-dancing and fashion parades (often with scantily clad young women), astrology, or cricket. Is it not a cruel irony and an affront to our poor people that so much time and resources are spent on such things? What have the Indian masses, who are facing terrible economic problems, to do with such things?

Historically, the media have been organs of the people against feudal oppression. In Europe, the media played a major role in transforming a feudal society into a modern one. The print media played a role in preparing for, and during, the British, American and French Revolutions. The print media were used by writers such as Rousseau, Voltaire, Thomas Paine, Junius and John Wilkes in the people's fight against feudalism and despotism. Everyone knows of the great stir created by Thomas Paine's pamphlet ‘Common Sense' during the American Revolution, or of the letters of Junius during the reign of the despotic George III.

The media became powerful tools in the hands of the people then because they could not express themselves through the established organs of power: those organs were in the hands of feudal and despotic rulers. Hence, the people had to create new organs that would serve them. It is for this reason that that the print media became known as the Fourth Estate. In Europe and America, they represented the voice of the future, in contrast to the feudal or despotic organs that wanted to preserve the status quo in society. In the 20th century, other types of media emerged: radio, television and the Internet.

What should be the media's role? This is a matter of great importance to India as it faces massive problems of poverty, unemployment, corruption, price rise and so on.

To my mind, in underdeveloped countries like India the media have a great responsibility to fight backward ideas such as casteism and communalism, and help the people in their struggle against poverty and other social evils. Since a large section of the people is backward and ignorant, it is all the more necessary that modern ideas are brought to them and their backwardness removed so that they become part of enlightened India. The media have a great responsibility in this respect.

Underdeveloped countries like India are passing through a transitional stage, between a feudal-agricultural society and a modern-industrial society. This is a painful, agonising period. A study of the history of England of the 17th and 18th centuries and of France of the 18th and 19th centuries, shows that for them such periods of transition were full of turbulence, turmoil, revolutions, intellectual ferment, and social churning. It was only after going through this fire that modern society emerged in Europe. India is going through this fire. The barbaric ‘honour killings' in parts of the country of young men and women of different castes or religion who get married or wish to get married, among other incidents, show how backward we still are — full of casteism and communalism.

India's national aim must be to get over this transitional period as quickly as possible, reducing the inevitable agony. Our aim must be to make India a modern, powerful, industrial state. Only then will India be able to provide for the welfare of its people and get respect in the world community.

Today, the real world is cruel and harsh. It respects power, not poverty or weakness. When China and Japan were poor nations, their people were derisively labelled ‘yellow' races by Western nations. Today nobody dares use such terms as they are strong industrial nations. Similarly, if we wish India to get respect in the comity of nations, we must make it highly industrialised and prosperous. For this, our patriotic, modern-minded intelligentsia must wage a powerful cultural struggle, that is, a struggle in the realm of ideas. This cultural struggle must be waged by combating feudal and backward ideas, for example, casteism and communalism, replacing them with modern, scientific ideas among the masses.

The media have an extremely important role to play in this cultural struggle. But are they performing this role?

No doubt, the media sometimes refer to farmer suicides in different States, the price rise, and so on, but these form only a small part of their coverage — maybe 5 to 10 per cent. Most of the coverage is given to cricket, film stars, astrology and disco-dancing.

Sadly, India now has a disconnect between the mass media and mass reality. Here are a few facts from a speech delivered by P. Sainath, Rural Affairs Editor of The Hindu and Magsaysay award winner, on September 6, 2007 in Parliament House in the Speaker's Lecture Series.

•The mass reality in India (which has over 70 per cent of its people living in the rural areas), is that rural India is in the midst of the worst agrarian crisis in four decades. Millions of livelihoods in the rural areas have been damaged or destroyed in the last 15 years as a result of this crisis, because of the predatory commercialisation of the countryside and the reduction of all human values to exchange value. As a result, lakhs of farmers have committed suicide and millions of people have migrated, and are migrating, from the rural areas to the cities and towns in search of jobs that are not there. They have moved towards a status that is neither that of a ‘worker' nor that of a ‘farmer.' Many of them end up as domestic labourers, or even criminals. We have been pushed towards corporate farming, a process in which farming is taken out of the hands of the farmers and put in the hands of corporates. This process is not being achieved with guns, tanks, bulldozers or lathis. It is done by making farming unviable for the millions of small family farm-holders, due to the high cost of inputs such as seed, fertilizer and power, and uneconomical prices.

•India was ranked fourth in the list of countries with the most number of dollar billionaires, but 126th in human development. This means it is better to be a poor person in Bolivia (the poorest nation in South America) or Guatemala or Gabon rather than in India. Here, some 83.6 crore people (of a total of 110-120 crore) in India survive on less than Rs.20 a day.

•Eight Indian States in India are economically poorer than African states, said a recent Oxford University study. Life expectancy in India is lower than in Bolivia, Kazakhstan and Mongolia.

•According to the National Sample Survey Organisation, the average monthly per capita expenditure of the Indian farm household is Rs.503. Of that, some 55 per cent is spent on food, 18 per cent on fuel, clothing and footwear, leaving precious little to be spent on education or health.

•A report of the Food and Agriculture Organisation of the United Nations shows that between 1995-97 and 1999-2001, India added more newly hungry millions than the rest of the world taken together. The average rural family is consuming 100 kg less of food than it was consuming earlier. Indebtedness has doubled in the past decade. Cultivation costs have increased exorbitantly and farming incomes have collapsed, leading to wide-scale suicides by farmers.

•While there were 512 accredited journalists covering the Lakme India Fashion Week event, there were only six journalists to cover farmer suicides in Vidharbha. In that Fashion Week programme, the models were displaying cotton garments, while the men and women who grew that cotton were killing themselves at a distance of an hour's flight from Nagpur in the Vidharbha region. Nobody told that story except one or two journalists, locally.

Is this a responsible way for the Indian media to function? Should the media turn a Nelson's eye to the harsh economic realities facing over 75 per cent of our people, and concentrate on some ‘Potemkin villages' where all is glamour and show business? Are not the Indian media behaving much like Queen Marie Antoinette, who famously said that if people had no bread, they should eat cake.

No doubt, sometimes the media mention farmers' suicides, the rise in the price of essential commodities and so on, but such coverage is at most 5 to 10 per cent of the total. The bulk of the coverage goes to showing cricket, the life of film stars, pop music, fashion parades, astrology…

Some TV channels show cricket day in and day out. Some Roman emperor was reputed to have said: if you cannot give the people bread, give them the circus. This is precisely the approach of the Indian establishment. Keep the people involved in cricket so that they forget their economic and social plight. What is important is not price rise or unemployment or poverty or lack of housing or medicines. What is important is whether India has beaten New Zealand (or better still, Pakistan) in a cricket match, or whether Tendulkar or Yuvraj Singh has scored a century. Is this not sheer escapism?

To my mind, the role of the media in our country today must be to help the people in their struggle against poverty, unemployment and other social evils and to make India a modern, powerful, industrial state.

For this, scientific thinking should be promoted. Science alone is the means to solve this country's problems. By science I do not mean physics, chemistry and biology alone. I mean the entire scientific outlook, which must be spread widely among our people. Our people must develop rational, logical and questioning minds, and abandon superstition and escapism. For this purpose the media can, and must, play a powerful role.

The nation is passing through a terrible socio-economic crisis. Artists, writers and mediapersons must start acting responsibly and help the people solve their problems. And this they can do by focussing on the real issues — which are basically economic — and not by trying to divert people's attention to non-issues.

The Urdu poet Faiz wrote: Gulon mein rang bhare bade naubahaar chale/ Chale bhi aao ki gulshan ka kaarobaar chale. Urdu poetry often has an outer, superficial meaning, and an inner real meaning. The real meaning of this sher is that the objective situation in the country is ripe, and patriotic people to come forward to serve the country. (The word ‘gulshan' ostensibly means garden, but in this sher, it really means the country.)

Source:

1. http://www.hindu.com/2011/06/03/stories/2011060350440800.htm

2. http://www.hindu.com/2011/06/04/stories/2011060455071000.htm

An important judgment by Madras HC on section 138 of The Negotiable Instruments Act, 1881

2011-06-03T17:17:00.002+05:30

P.Gnanambigai vs S.Krishnasamy on 23 December, 2010

Cites 6 docs - [View All]

Section 139 in The Code Of Criminal Procedure, 1973

The Code Of Criminal Procedure, 1973

Section 138 in The Code Of Criminal Procedure, 1973

The Negotiable Instruments Act, 1881

K.P.Chinnasamy vs T.B.Kennedy on 14 November, 2006

Madras High Court

Dated: 23.12.2010

Coram

THE HONOURABLE MS. JUSTICE K.B.K.VASUKI

Crl.R.C.No.1307 of 2005

P.Gnanambigai .. Petitioner

Vs.

1.S.Krishnasamy

2.The State of Tamil Nadu

rep. by the Public Prosecutor,

Erode District. .. Respondents

Prayer:- Criminal Revision Petition filed under Section 397 r/w 401 of Cr.P.C. against the order made on 12.05.2005 in C.A.No.176 of 2003 on the file of Additional District Judge-cum-Fast Track Court, Erode confirming the judgment dated 27.10.2003 made in CC.No.541 of 2002 on the file of Judicial Magistrate No.I, Erode.

For Petitioner : M/s.V.S.Kesavan

For Respondents : M/s.C.S.Saravanan for R1

M/s.I.Paul Noble Devakumar

G.A.(Crl. Side) for R2.

ORDER

The accused is the petitioner herein. The revision is filed against the judgment of conviction made in C.A.No.176 of 2003 on the file of Additional District Judge-cum-Fast Track Court, Erode confirming the judgment made in CC.No.541 of 2002 on the file of Judicial Magistrate No.I, Erode.

2. The case of the first respondent against the petitioner in his private complaint is that the petitioner on 14.07.2002 borrowed a sum of Rs.2,50,000/- as loan and paid interest of Rs.5,000/- and for the due repayment of the principle amount issued Ex.P1 cheque dated 12.08.2002, and when the same was presented for encashment on 13.08.2002, the same is returned for want of sufficient funds and the same was intimated to the petitioner by notice dated 23.08.2002 and the petitioner did neither respond to the notice nor pay the amount. The first respondent/complainant has in order to prove his case before the trial court examined himself as PW1 and has also produced Ex.P1 to Ex.P6 documents. The trial court has on the basis of the available records accepted the case of the complainant that Ex.A1 cheque is issued for the due repayment of loan amount of Rs.2,50,000/- and found the accused guilty of the offence under section 138 of the Negotiable Instruments Act (herein after referred to as "N.I. Act") and sentenced him to undergo imprisonment and to pay fine. Aggrieved against the same, the petitioner preferred C.A.176 of 2003 and the lower appellate court has also confirmed the findings and the judgment of conviction based on such finding passed by the trial court. Hence, this criminal revision by the accused before this court.

3. The learned counsel for the revision petitioner has argued that, though the petitioner admits his signature in the cheque and the issuance of cheque, the petitioner stoutly denies the circumstances in which the cheque is issued. According to the petitioner, the cheque is issued in blank for payment of chit arrears due from the petitioner to the respondent/complainant who conducted the chit transaction.

4. It is further argued by the learned counsel for the petitioner, though the petitioner has sufficiently made out before the court below that there was no such money transaction between the petitioner and the respondent and the respondent has no where withal to pay such huge amount as loan, both the courts below have without considering the such plea raised on the side of the accused found the accused guilty, mainly by invoking the presumption under section 139 of the N.I. Act and on the ground that the petitioner failed to rebut the same. It is also argued by the learned counsel for the petitioner, that the standard of proof required to be adduced by the petitioner to discharge the burden cast upon him is not beyond reasonable doubt but only preponderance of probability and it is sufficient discharge if he is able to create reasonable doubt in the mind of the court about the truthfulness of the transaction between the parties and as the petitioner has successfully made out one such case that the nature of the transaction is not the one as claimed by the complainant the courts below ought to have absolved the petitioner from liability to adduce further evidence and ought to have shifted the burden upon the complainant to prove his case and on his failure to do so rejected his case and acquitted the accused and the failure of the court below to adopt such course has resulted in totally erroneous finding.

5. Per contra, the learned counsel for the respondent/complainant would strenuously contend that though the presumption raised under section 139 of the N.I. Act is rebuttable the burden is upon the accused/petitioner to adduce sufficient material to rebut the same and mere raising some vague and bald defence in the course of trial is not sufficient enough to discharge the burden and the failure of the petitioner to issue reply notice and to enter into the witness box are the factors to be viewed against the petitioner and the minor discrepancies in the testimony of PW1 cannot be highlighted to reject the case of the complainant in toto.

6. The learned counsel for the petitioner and respondents have also cited authorities of the Supreme Court and our High Court in support of their respective contentions.

7. I have heard the rival submissions made on both sides and perused the records and authorities cited on both sides.

8. For the purpose of convenience the parties are referred to as per their rank in the trial court.

9. In the instance case, the signature and the issuance of cheque in question to the respondent is not denied. That being so, the trial court has rightly drawn the presumption under section 139 of the N.I. Act, that the same is issued for legally enforceable liability existing on the date of issuance of the cheque and has rightly cast the burden upon the accused to rebut such presumption.

10. The well settled legal position, which is reiterated in the recent larger bench judgment of Supreme Court reported in 2010 (4) CTC 118 in Rangappa V. Sri Mohan is that when an accused has to rebut the presumption under section 139 the standard of proof for doing so, is that of preponderance of probabilities and if the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. It is further observed in the same judgment that the accused can rely on the materials submitted by the complainant in order to raise such a defence. It is also observed by the Supreme Court in the earlier judgment reported in 2008 (1) CTC 433 in Krishna Janardhan Bhat V. Dattatraya G. Hedge that the court must be on guard to see that merely on the application of presumption as contemplated under Section 139 of the N.I. Act, the same may not lead to injustice or mistaken conviction and the accused for discharging the burden of proof placed upon him under the statute need not examine himself and he can discharge his burden on the basis of the materials already brought on records and the accused has a constitutional right to maintain silence and standard of proof on the part of the accused and that of the prosecution in a criminal case is different. It is also observed by the Supreme Court that the presumption of innocence as a human right and the doctrine of Reserve Burden introduced under section 139 should be delicately balanced and such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to the legal principles governing the same. The test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused cannot be expected to dishcarge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden.

11. Only in this legal matrix the facts of the present case is to be necessarily appreciated. It is true that the petitioner raised the defence to the effect that the cheque in question is issued not in the circumstances as alleged in the complaint but under different circumstances only after the proceedings under section 138 is initiated such defence is for the first time raised by way of suggestion to PW1 in the course of his cross examination. The petitioner has neither sent any reply to that effect to the statutory notice issued by the complainant nor he entered into the witness box and deposed so. As far as his failure to reply the statutory notice, the same is sought to be highlighted on the side of the complainant by relying upon the judgment of our Supreme Court reported in 2010 (4) CTC 118 and judgment of our High Court reported in 2006 (1) L.W. (Crl.) 433 in K.P. Chinnasamy V. T.B.Kennedy. It is true that in both the cases, the Supreme Court and our High Court have in the given circumstances attached serious importance to the failure on the part of the accused to reply to the statutory notice and drew adverse inference against the accused. However, whether despite of such failure in the instant case the accused is able to rebut the presumption invoked in this case or not is to be necessarily considered only in the light of the other materials already brought on record as pointed out by the accused in support of his defence.

12. The learned counsel for the petitioner pointed out the following aspects in support of his contention (i) there was no money transactions on earlier occasion between the complainant and the petitioner (ii)different ink and different hand writing are used in the cheque in question (iii) the date on which the cheque is issued by the petitioner presented for clearance and the purpose for which the amount is said to be borrowed and the shorter period within which the amount is allegedly agreed to be repaid (iv) the absence of knowledge of PW1 about the contents of the cheque in question and about the time at and the manner in which the contents are filled (v) financial incapacity of the complainant to pay such a huge amount as loan (vi)non examination of one Munusamy who is according to the complainant fully aware of not only the money transaction but also the contents of the cheque and the manner in which it is filled up.

13. The cursory glance at the cheque in question would leave no doubt that the same is undisputedly filled up in three different hand writing and three inks and in three different ink. The complainant has as PW1 deposed in the witness box that the cheque bearing No.645152 dated 12.08.2002 for Rs.2,50,000/- is drawn on Indian Bank, Main Branch at Erode and the same is signed and issued to the complainant for the repayment of Rs.2,50,000/- borrowed on 14.07.2002 and PW1 has further stated in his cross examination stated that the accused brought the filled up cheque and singed it in his presence and handed over the same to the petitioner. However, he has in the later part of his cross examination denied any knowledge about the different inks and different handwriting used to fill up the contents of the cheque and he would categorically admit that he did not know to whose name the cheque was issued and the quantum of amount mentioned in the same and the person in whose presence it is issued.

14. It is only stated by him one Munusamy was present through out the transaction and it is the said Munusamy who is only aware of all the particulars including the contents of the cheque and he will be able to furnish the particulars in this regard. PW1 has but denied the suggestions put to him that the blank cheque was issued for payment of chit arrears and though the chit arrears was already paid the cheque was not returned but later on filled up to file the present case.

15. As rightly pointed out by the learned counsel for the petitioner the fact that different inks and different pens used to fill up the contents of the cheque is if viewed in the light of the denial of knowledge by the complainant about the contents of the same would lead to a reasonable doubt as to whether the cheque was issued in the circumstances as narrated in the complaint. Further though the specific case raised in the complaint is that the accused borrowed Rs.2,50,000/- on 14.07.2002 agreeing to repay the amount on 12.08.2002 and issued the cheque dated 12.08.2002 it is not stated in the complainant. It is not specifically stated as to whether the cheque bearing post date was issued on the same date of borrowal on 14.07.2002 or the borrowal was on 14.07.2002 and cheque was issued on 12.08.2002. Further neither the statutory notice, nor the complaint would whisper the reason for which the amount is borrowed. The same is for the first time put forth by PW1 as if the amount is borrowed for house construction expenses in the course of cross examination of PW1. As rightly argued on the side of the accused had it been true that huge sum of Rs.2,50,000/- was borrowed for building construction expenses the same would not have been agreed to be repaid within one month by issuing cheque dated 12.08.2002. In my considered view the allegations that the loan transaction was effected on 14.07.2202 for such shorter duration appears to be doubtful.

16. Next aspect to be considered is the financial condition of the complainant. It is his case that he is running travels by renting out mini buses, tourist car and taxis and he is not professional financier. He would further say that the accused was introduced to him through one Munusamy and the accused had money transaction with the complainant on two or three earlier occasions and the complainant had also similar money transaction tut[ bryt[ with two or three more other persons. Curiously enough the so called Munusamy is not at all brought into the witness box. It is also note worthy to mention at this juncture, that PW1 is in the course of his cross examination suggested on behalf of the accused that PW1 has no capacity to pay such huge amount as hand loan. Considering the nature of the business being carried on by the complainant, the contention so raised on the side of the accused deserves some merits and acceptance.

17. In that event, the combined appreciation of the factors discussed above would throw serious doubt about the nature of transaction effected between the parties and the same relieves the accused of burden cast upon him and shifts the burden upon PW1 and PW1 ought to have produced satisfactory materials such as accounts etc., to prove his capacity to pay Rs.2,50,000/- as loan amount to the accused and that he had money transaction with two or three persons. But no such material is produced by PW1, it is also not stated by PW1 as to whether the money was paid by cash or cheque, no such particulars are available to ascertain the financial capacity of the petitioner to lend such huge amount. As rightly argued by the learned counsel for the accused, when PW1 has categorically admitted that it is Munusamy who knows the contents of the cheque in question non examination of the said Munusamy who introduced the accused to PW1 and who was fully aware of the previous money transactions between the complainant and the accused and who was fully aware and was present through out the transaction in question assumes greater significance and importance in this case.

18. Thus the failure of the complainant to give possible explanation for all the material discrepancies found in the evidence and for the non examination of one Munusamy would only compel this court to hold that the prosecution fails to prove the case as pleaded in the complainant. As such the mere failure of the accused to reply the statutory notice and to enter the witness box will in no way affect the merit of the defence raised on the side of the petitioner/accused.

19. However, both the courts below have totally on erroneous approach to the facts of the case arrived at erroneous conclusion that the accused fails to discharge the burden of rebutting the legal presumption raised in favour of the complainant and both the courts below thus passed the order of conviction solely by applying the presumption clause and the same deserves interference on the grounds discussed above.

20. In the result, the criminal revision is allowed by setting aside the judgment dated 12.05.2005 made in C.A.No.176 of 2003 on the file of Additional District Judge-cum-Fast Track Court, Erode and the judgment dated 27.10.2003 made in CC.No.541 of 2002 on the file of Judicial Magistrate No.I, Erode. The fine amount, if any, paid by the petitioner is directed to be refunded to him. The bail bonds executed by the accused stands cancelled. tsh

1.The Additional District Judge-cum-Fast Track Court, Erode.

2.The Judicial Magistrate No.I,

Erode

Age of the ink can be traced by expert- Latest judgment. (2002-2-LW-308)

2011-04-13T13:04:00.001+05:30

Madras High Court

DATED: 1-2-2011

CORAM

THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI

CRL.O.P.No.27211 of 2010

and M.P.Nos.1 and 2 of 2010

A. Devaraj ..Petitioner

Rajammal ..Respondent

Criminal Original Petition filed under Section 482 Cr.P.C. for the reliefs as stated therein.

For petitioner : Mr.N. Sudharsan

For respondent : Mr.P. Ananda Kumar

ORDER

The petition is filed seeking a direction to set aside the order dated 10.11.2009 made in Crl.R.C.No.37/2008 by the learned Additional District and Sessions Judge, Gopichettypalayam and confirming the order passed by the learned Judicial Magistrate, Sathyamangalam in CMP No.3579 of 2007 in C.C.No.595 of 2004 dated 2.5.2008.

2. Petitioner is the accused in C.C No.595 of 2004 pending on the file of Judicial Magistrate, Sathyamangalam, Erode. The said proceedings was initiated on a private complaint lodged by the respondent for an offence under Sec.138 r/w 142 of Negotiable Instruments Act (hereinafter referred to as "Act").

3. Pending proceedings, the petitioner has filed CMP No.3579 of 2007 under Sec.45 of the Indian Evidence Act seeking for an order to send the cheque to the expert to determine the "age of the ink" found in the cheque. It was opposed by the complainant. The learned Judicial Magistrate relied on a decision reported in 2008 (1) CTC 496 (S.Gopal vs P. Balachandran), wherein it is held that there is no scientific facility to determine the age of the ink. Consequently, the learned Magistrate dismissed the application.

4. The petitioner has filed a revision petition in Crl.R.C.No.37 of 2008 before the learned Additional District and Sessions Judge, Gopichettipalayam. The learned Additional District and Sessions Judge (Fast Track Court II), after considering the points, concurred with the learned Judicial Magistrate and dismissed the revision. Aggrieved by which, the accused is before this Court under Sec.482 Cr.P.C.

5. Mr.N. Sudharsan, learned counsel for the petitioner drew our attention to an order passed by this court on 2.11.2010 in CRP (PD) No. 1475 of 2010, wherein, His Lordship R.S. Ramanathan J. observed as follows: "6. It is seen from the judgment referred supra, the learned Judge after getting opinion from the Assistant Director, Document Division, Forensic Science Department, Government of Tamil Nadu came to the conclusion that no such facility is available in the Forensic Science Department, Government of Tamil Nadu and also on the basis of the opinion expressed by the Assistant Director held that the age of the ink cannot be found out. Now the revision petitioner has produced a brochure downloaded from the Central Forensic Science Laboratories, Hyderabad Website wherein it has been stated that they are undertaking the work of determining the age of the ink. Further, it is seen from the letter written from the office of Government Examiner of Questioned Documents Directorate of Forensic Science, Hyderabad, the age of the ink can be ascertained by comparing it with the admitted signature of the same period and at the same time it has been stated that there is no foolproof method by which the exact age of the writing/signature can be determined or authenticated. However, with a view to give fair trial to the revision petitioner and having regard to the particulars available from the Website of Central Forensic Science Laboratory, Hyderabad, the prayer for the revision petitioner can be considered and the document can be sent to Central Directorate of Forensic Science in the office of Government Examiner of Questioned Documents. Further, the revision petitioner should also send the admitted signature of the first defendant alleged to have been written during the relevant period during which the disputed document was also signed.

6. He also relied on a decision reported in 2007 (1) Crimes 106 (SC), (Kalyani Baskar vs M.S. Sampornam), wherein the Apex Court has held as follows: "Where accused in a cheque bouncing case prayed to Magistrate to send cheque in question for examination by handwriting expert to ascertain genuineness of signatures, as a fair trial request should have been allowed in exercise of power u/s 243(2) Cr.P.C"

7. On the contrary, Mr.Anandakumar, the learned counsel for the respondent submitted that the alleged transaction took place in the year 2004 and the accused has chosen to file an application only in the year 2007 and therefore, at the belated stage, the application cannot be entertained and it is only a delaying tactics by the accused petitioner.

8. The learned counsel relied on a decision reported in 2010 1 CTC 424 (R. Jagadeesan vs N. Ayyasamy and another) , wherein this Court has held that finding the age of the writing in a document is only futile, since the Head of the Department of Forensic Science at Chennai had stated that there is no scientific method available anywhere in this State to scientifically assess the age of any writing.

9. Heard and perused the materials available on record.

10. The petitioner has invoked Sec.45 of Indian Evidence Act contending that the cheque was not issued to the complainant but had been issued to the brother of the complainant during 1998 and 1999 and to prove that the writings in the cheque do not belong to the year 2004 as dated in the cheque, the age of the ink has to be determined.

11. The learned Judicial Magistrate as well as the revision authority had relied on the decision reported in 2008 (1) CTC 496 (S.Gopal vs P. Balachandran) (cited supra) and has also relied on a decision reported in 2010 1 CTC 424 (R. Jagadeesan vs N. Ayyasamy and another) (cited supra), wherein it is held that there is no facility available to determine the age of the ink. However, another learned Single Judge of this court has now held that the Central Forensic Science Laboratory at Hyderabad has the facility to ascertain the age of the ink.

12. In my considered opinion, the latest judgment of the learned Single Judge of this Court in CRP (PD) NO.1475 of 2010 is not a contradictory judgment to the earlier judgment of the learned Single judge in the case of R. Jagadeesan vs N. Ayyasamy and another, reported in 2010 (1) CTC 424. Hon'ble R.S. Ramanathan J. has differentiated the earlier judgment of Hon'ble S. Nagamuthu J, and has ordered sending the document to be examined by the CFSL, Hyderabad as they claim the facility is available.

13. Since the learned Magistrate has dismissed the application based on the earlier judgment, I am of the considered view that when there is facility available, a fair trial requires that a chance must be given to the accused/petitioner as he has taken a definite stand that the cheque was issued to a different person in the year 1998-1999, which has been used by the complainant in the year 2004. However, as observed in the order dated 2.11.2010 in CRP (PD) No.1475 of 2010, an admitted signature of the petitioner of the same year should also be sent for comparison.

14. Therefore, the criminal original petition is allowed and the order passed by the learned Additional District and Sessions Judge, Gopichettypalayam in Crl.R.C.No.37/2008 dated 10.11.2009 and learned Judicial Magistrate, Sathyamangalam in CMP No.3579 of 2007 in C.C.No.595 of 2004 dated 2.5.2008 are set aside.

15. The revision petitioner is directed to submit his admitted signature as stated above within a period of two weeks from the date of receipt of a copy of this order before the lower court. The lower court is directed to send both the documents to the Central Forensic Science Laboratory, Directorate of Forensic Science as stated above. The lower court is directed to fix the remuneration to the Advocate Commissioner and also for the expenses for comparison. If the revision petitioner fails to produce the admitted signature for comparison as stated above within the stipulated period, the revision petitioner is not entitled to ask for sending the documents for comparison. Consequently, the connected MPs are closed. sr

1. Additional District and Sessions Judge, Gopichettypalayam

2. The Judicial Magistrate,

Sathyamangalam

பொங்குக பொங்கல்…

2011-01-15T07:09:00.001+05:30

பொங்கட்டும்

பொங்கல்

எங்கும்...

தங்கட்டும்

இன்பம்

என்றும்...

2010-11-23T20:59:00.002+05:30

QVJVFE6VUY3V

Guidelines by the Hon’ble Supreme Court to settle out of court in cheque dishonour cases.

2010-11-03T07:05:00.001+05:30

To discourage the dragging on the proceedings endlessly and to avoid multiplicity of proceedings of the cheque dishonour cases under section 138 of the NI Act, the Hon’ble Supreme Court has formulated several important guidelines, like imposing cost of 15% and 20 % of the cheque’s amount while settling at Sessions or High Courts and Supreme Court respectively. Likewise it is suggested to impose costs on complainants who file multiple cases for single transactions.

The complete judgment is given below:

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 963 OF 2010

[Arising out of SLP (Crl.) No. 6369 of 2007] Damodar S. Prabhu ... Appellant (s) Versus

Sayed Babalal H. ... Respondent (s) WITH

CRIMINAL APPEAL NOS. 964-966 OF 2010

[Arising out of SLP (Crl.) Nos. 6370-6372 of 2007] O R D E R

1. Leave granted.

2. The present appeals are in respect of litigation involving the offence enumerated by Section 138 of the Negotiable Instruments Act, 1881 [Hereinafter `Act']. It is not necessary for us to delve into the facts leading up to the institution of proceedings before this Court since the appellant and the respondent have arrived at a settlement and prayed for the compounding of the offence as contemplated by Section 147 of the Act. It would suffice to say that the parties were involved in commercial transactions and that disputes had arisen on account of the dishonour of five cheques issued by the appellant. Thereafter, the parties went through the several stages of litigation before their dispute reached this Court by way of special leave petitions. With regard to the impugned judgments delivered by the High Court of Bombay at Goa, the appellant has prayed for the setting aside of his conviction in these matters by relying on the consent terms that have been arrived at between the parties. The respondent has not opposed this plea and, therefore, we allow the compounding of the offence and set aside the appellant's conviction in each of the impugned judgments.

3. However, there are some larger issues which can be appropriately addressed in the context of the present case. It may be recalled that Chapter XVII comprising sections 138 to 142 was inserted into the Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988). The object of bringing Section 138 into the statute was to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. It was to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficient arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers. If the cheque is dishonoured for insufficiency of funds in the drawer's account or if it exceeds the amount arranged to be paid from that account, the drawer is to be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both. It may be noted that when the offence was inserted in the statute in 1988, it carried the provision for imprisonment up to one year, which was revised to two years following the amendment to the Act in 2002. It is quite evident that the legislative intent was to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. While the possibility of imprisonment up to two years provides a remedy of a punitive nature, the provision for imposing a `fine which may extent to twice the amount of the cheque' serves a compensatory purpose. What must be remembered is that the dishonour of a cheque can be best described as a regulatory offence that has been created to serve the public interest in ensuring the reliability of these instruments. The impact of this offence is usually confined to the private parties involved in commercial transactions.

4. Invariably, the provision of a strong criminal remedy has encouraged the institution of a large number of cases that are relatable to the offence contemplated by Section 138 of the Act. So much so, that at present a disproportionately large number of cases involving the dishonour of cheques is choking our criminal justice system, especially at the level of Magistrates' Courts. As per the 213th Report of the Law Commission of India, more than 38 lakh cheque bouncing cases were pending before various courts in the country as of October 2008. This is putting an unprecedented strain on our judicial system.

5. Mr. Goolam E. Vahanvati, Solicitor General (now Attorney- General for India) had appeared as amicus curiae in the present matter and referred to the facts herein as an illustration of how parties involved in cheque bounce cases usually seek the compounding of the offence at a very late stage. The interests of justice would indeed be better served if parties resorted to compounding as a method to resolve their disputes at an early stage instead of engaging in protracted litigation before several forums, thereby causing undue delay, expenditure and strain on part of the judicial system. This is clearly a situation that is causing some concern, since Section 147 of the Act does not prescribe as to what stage is appropriate for compounding the offence and whether the same can be done at the instance of the complainant or with the leave of the court. The learned Attorney General stressed on the importance of using compounding as an expedient method to hasten the disposal of cases. In this regard, the learned Attorney General has proposed that this Court should frame some guidelines to disincentivise litigants from seeking the compounding of the offence at an unduly late stage of litigation. In other words, judicial directions have been sought to nudge litigants in cheque bounce cases to opt for compounding during the early stages of litigation, thereby bringing down the arrears.

6. Before examining the guidelines proposed by the learned Attorney General, it would be useful to clarify the position relating to the compounding of offences under the Negotiable Instruments Act, 1881. Even before the insertion of Section 147 in the Act (by way of an amendment in 2002) some High Courts had permitted the compounding of the offence contemplated by Section 138 during the later stages of litigation. In fact in O.P. Dholakia v. State of Haryana, (2000) 1 SCC 672, a division bench of this Court had permitted the compounding of the offence even though the petitioner's conviction had been upheld by all the three designated forums. After noting that the petitioner had already entered into a compromise with the complainant, the bench had rejected the State's argument that this Court need not interfere with the conviction and sentence since it was open to the parties to enter into a compromise at an earlier stage and that they had not done so. The bench had observed:- "... Taking into consideration the nature of the offence in question and the fact that the complainant and the accused have already entered into a compromise, we think it appropriate to grant permission in the peculiar facts and circumstances of the present case, to compound."

7. Similar reliefs were granted in orders reported as Sivasankaran v. State of Kerala & Anr., (2002) 8 SCC 164, Kishore Kumar v. J.K. Corporation Ltd., (2004) 12 SCC 494 and Sailesh Shyam Parsekar v. Baban, (2005) 4 SCC 162, among other cases. As mentioned above, the Negotiable Instruments Act, 1881 was amended by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 which inserted a specific provision, i.e. Section 147 `to make the offences under the Act compoundable'. We can refer to the following extract from the Statement of Objects and

Reasons attached to the 2002 amendment which is self- explanatory:-

"Prefatory Note - Statement of Objects and Reasons. - The Negotiable Instruments Act, 1881 was amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 wherein a new Chapter XVII was incorporated for penalties in case of dishonour of cheques due to insufficiency of funds in the account of the drawer of the cheque. These provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the Negotiable Instruments Act, 1881, namely, Sections 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the courts to deal with such matters has been found to be cumbersome. The courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act. ..." (emphasis supplied)

In order to address the deficiencies referred to above, Section 10 of the 2002 amendment inserted Sections 143, 144, 145, 146 and 147 into the Act, which deal with aspects such as the power of the Court to try cases summarily (Section 143), Mode of service of summons (Section 144), Evidence on affidavit (Section 145), Bank's slip to be considered as prima facie evidence of certain facts (Section 146) and Offences under the Act to be compoundable (Section 147). At present, we are of course concerned with Section 147 of the Act, which reads as follows:-

"147. Offences to be compoundable. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable."

8. At this point, it would be apt to clarify that in view of the non-obstante clause, the compounding of offences under the Negotiable Instruments Act, 1881 is controlled by Section 147 and the scheme contemplated by Section 320 of the Code of Criminal Procedure [Hereinafter `CrPC'] will not be applicable in the strict sense since the latter is meant for the specified offences under the Indian Penal Code. So far as the CrPC is concerned, Section 320 deals with offences which are compoundable, either by the parties without the leave of the court or by the parties but only with the leave of the Court. Sub-section (1) of Section 320 enumerates the offences which are compoundable without the leave of the Court, while sub- section (2) of the said section specifies the offences which are compoundable with the leave of the Court. Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 of the CrPC which states that `No offence shall be compounded except as provided by this Section'. A bare reading of this provision would lead us to the inference that offences punishable under laws other than the Indian Penal Code also cannot be compounded. However, since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries a non- obstante clause

9. In Vinay Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd., (2008) 2 SCC 305, this Court had examined `whether an offence punishable under Section 138 of the Act which is a special law can be compounded'. After taking note of a divergence of views in past decisions, this Court took the following position (C.K. Thakker, J. at Para. 17):- " ... This provision is intended to prevent dishonesty on the part of the drawer of negotiable instruments in issuing cheques without sufficient funds or with a view to inducing the payee or holder in due course to act upon it. It thus seeks to promote the efficacy of bank operations and ensures credibility in transacting business through cheques. In such matters, therefore, normally compounding of offences should not be denied. Presumably, Parliament also realised this aspect and inserted Section 147 by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act 55 of 2002). ..."

In the same decision, the court had also noted (Para. 11):- "... Certain offences are very serious in which compromise or settlement is not permissible. Some other offences, on the other hand, are not so serious and the law may allow the parties to settle them by entering into a compromise. The compounding of an offence signifies that the person against whom an offence has been committed has received some gratification to an act as an inducement for his abstaining from proceeding further with the case."

10. It would also be pertinent to refer to this Court's decision in R. Rajeshwari v. H.N. Jagadish,(2008) 4 SCC 82, wherein the following observations were made (S.B. Sinha, J. at Para. 12):-

"Negotiable Instruments Act is a special Act. Section 147 provides for a non obstante clause, stating:

147. Offences to be compoundable. -

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.

Indisputably, the provisions of the Code of Criminal Procedure, 1973 would be applicable to the proceedings pending before the courts for trial of offences under the said Act. Stricto sensu, however, the table appended to Section 320 of the Code of Criminal Procedure is not attracted as the provisions mentioned therein refer only to provisions of the Penal Code and none other."

11. The compounding of the offence at later stages of litigation in cheque bouncing cases has also been held to be permissible in a recent decision of this Court, reported as K.M. Ibrahim v. K.P. Mohammed & Anr., 2009 (14) SCALE 262, wherein Kabir, J. has noted (at Paras. 11, 12):-

"11. As far as the non-obstante clause included in Section 147 of the 1881 Act is concerned, the 1881 Act being a special statute, the provisions of Section 147 will have an overriding effect over the provisions of the Code relating to compounding of offences. ...

12. It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution."

12. It is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the offence and the nature of the remedy provided. On this point we can refer to the following extracts from an academic commentary [Cited from: K.N.C. Pillai, R.V. Kelkar's Criminal Procedure, 5th edn. (Lucknow: Eastern Book Company, 2008) at p. 444]:- "A crime is essentially a wrong against the society and the State. Therefore, any compromise between the accused person and the individual victim of the crime should not absolve the accused from criminal responsibility. However, where the offences are essentially of a private nature and relatively not quite serious, the Code considers it expedient to recognize some of them as compoundable offences and some others as compoundable only with the permission of the court. ..."

In a recently published commentary, the following observations have been made with regard to the offence punishable under Section 138 of the Act [Cited from: Arun Mohan, Some thoughts towards law reforms on the topic of Section 138, Negotiable Instruments Act - Tackling an avalanche of cases (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2009) at p. 5]

"... Unlike that for other forms of crime, the punishment here (in so far as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque. If we were to examine the number of complaints filed which were `compromised' or `settled' before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the bulk was settled and only a miniscule number continued."

13. It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. There is also some support for the apprehensions raised by the learned Attorney General that a majority of cheque bounce cases are indeed being compromised or settled by way of compounding, albeit during the later stages of litigation thereby contributing to undue delay in justice- delivery. The problem herein is with the tendency of litigants to belatedly choose compounding as a means to resolve their dispute. Furthermore, the written submissions filed on behalf of the learned Attorney General have stressed on the fact that unlike Section 320 of the CrPC, Section 147 of the Negotiable Instruments Act provides no explicit guidance as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the court. As mentioned earlier, the learned Attorney General's submission is that in the absence of statutory guidance, parties are choosing compounding as a method of last resort instead of opting for it as soon as the Magistrates take cognizance of the complaints. One explanation for such behaviour could be that the accused persons are willing to take the chance of progressing through the various stages of litigation and then choose the route of settlement only when no other route remains. While such behaviour may be viewed as rational from the viewpoint of litigants, the hard facts are that the undue delay in opting for compounding contributes to the arrears pending before the courts at various levels. If the accused is willing to settle or compromise by way of compounding of the offence at a later stage of litigation, it is generally indicative of some merit in the complainant's case. In such cases it would be desirable if parties choose compounding during the earlier stages of litigation. If however, the accused has a valid defence such as a mistake, forgery or coercion among other grounds, then the matter can be litigated through the specified forums.

14. It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a Judicial Magistrate First Class (JMFC). After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal.

7 In the case of conviction, an appeal would lie to the Court of Sessions under Section 374(3)(a) of the CrPC; thereafter a Revision to the High Court under Section 397/401 of the CrPC and finally a petition before the Supreme Court, seeking special leave to appeal under 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation. 7 In the case of acquittal by the JMFC, the complainant could appeal to the High Court under Section 378(4) of the CrPC, and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings.

15. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed:-

THE GUIDELINES

(i) In the circumstances, it is proposed as follows: (a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.

(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit.

(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.

(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.

Let it also be clarified that any costs imposed in accordance with these guidelines should be deposited with the Legal Services Authority operating at the level of the Court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before a Magistrate's Court or a Court of Sessions, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority.

16. We are also in agreement with the Learned Attorney General's suggestions for controlling the filing of multiple complaints that are relatable to the same transaction. It was submitted that complaints are being increasingly filed in multiple jurisdictions in a vexatious manner which causes tremendous harassment and prejudice to the drawers of the cheque. For instance, in the same transaction pertaining to a loan taken on an installment basis to be repaid in equated monthly installments, several cheques are taken which are dated for each monthly installment and upon the dishonor of each of such cheques, different complaints are being filed in different courts which may also have jurisdiction in relation to the complaint. In light of this submission, we direct that it should be mandatory for the complainant to disclose that no other complaint has been filed in any other court in respect of the same transaction. Such a disclosure should be made on a sworn affidavit which should accompany the complaint filed under Section 200 of the CrPC. If it is found that such multiple complaints have been filed, orders for transfer of the complaint to the first court should be given, generally speaking, by the High Court after imposing heavy costs on the complainant for resorting to such a practice. These directions should be given effect prospectively.

17. We are also conscious of the view that the judicial endorsement of the above quoted guidelines could be seen as an act of judicial law-making and therefore an intrusion into the legislative domain. It must be kept in mind that Section 147 of the Act does not carry any guidance on how to proceed with the compounding of offences under the Act. We have already explained that the scheme contemplated under Section 320 of the CrPC cannot be followed in the strict sense. In view of the legislative vacuum, we see no hurdle to the endorsement of some suggestions which have been designed to discourage litigants from unduly delaying the composition of the offence in cases involving Section 138 of the Act. The graded scheme for imposing costs is a means to encourage compounding at an early stage of litigation. In the status quo, valuable time of the Court is spent on the trial of these cases and the parties are not liable to pay any Court fee since the proceedings are governed by the Code of Criminal Procedure, even though the impact of the offence is largely confined to the private parties. Even though the imposition of costs by the competent court is a matter of discretion, the scale of costs has been suggested in the interest of uniformity. The competent Court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to their logical end. Even in the past, this Court has used its power to do complete justice under Article 142 of the Constitution to frame guidelines in relation to subject-matter where there was a legislative vacuum.

18. The present set of appeals are disposed of accordingly. .............................. CJI

(K.G. BALAKRISHNAN)

............................... J.

(P. SATHASIVAM)

............................... J.

(J.M. PANCHAL)

New Delhi

May 03, 2010

Legal aid to poor obligatory for lawyers: Hon’ble Mr.Justice.P.Sathasivam

2010-11-01T07:35:00.001+05:30

Advocates have an obligation to provide legal aid to poor, said Justice P. Sathasivam, Judge, Supreme Court of India, here on Sunday.

Speaking on the Role of Lawyers in the 21st Century at the centenary celebrations of Andikadu R. Balasubramanian Iyer, an advocate of Thanjavur, Justice Sathasivam said that law stipulated as the duty of the lawyer to provide legal aid. Right to Legal Aid is provided by the Legal Services Authority Act of 1979.

He also called upon the lawyers and courts to endeavour for conciliation, arbitration to arrive at a settlement. He also appealed to lawyers to know the amendments brought out by Parliament to various laws and follow them strictly. Amendment brought to CPC in 2002 by Parliament called for reducing delay experienced by litigants in cases. “Lawyers should respect the mandate of the Parliament by sticking on to time while filing replies,” the Judge said.

Earlier the Judge declared open the Library section of books provided by K. Subramanian, former Advocate General of Tamil Nadu at Thanjavur Bar Council building. The Judge described Andikadu Balasubramanian Iyer as a person who acquired high reputation and name at Thanjavur Bar.

Ram Jethmalani, MP and President of Bar Association, Supreme Court, said that legal profession is not for money making. Money is only a by-product. Service is the main duty of a lawyer. He owed his duty not only to his client, or his opponent but also to the court, society and finally to administration of Justice. He called upon young lawyers to have the courage to speak and argue for truth. Regretting that the standard of Bar has come down, he appealed to young lawyers to bring back the glory of the bar as was in the sixties.

Justices K. Suguna, S. Rajeswaran, S. Nagamuthu, C.T. Selvam and G.M. Akbar Ali, Judges, Madras High Court, and K. Subramanian, Former Advocate General of Tamil Nadu, spoke. R. Sivasubramanian, President, Bar Association, Thanjavur presided.

CANDIDATES SHORT LISTED FOR VIVA VOCE

2010-10-27T17:02:00.001+05:30

DIRECT RECRUITMENT TO THE POST OF DISTRICT JUDGE
(ENTRY LEVEL) - CANDIDATES SHORT LISTED FOR
VIVA VOCE

to see the list of candidates click the link below:

http://www.hcmadras.tn.nic.in/dj-shortlisted.pdf

Note : The information regarding the date, time, venue and other
instructions for the viva voce would be individually intimated to the
above short listed candidates.

The results

2010-10-27T16:49:00.001+05:30

DIRECT RECRUITMENT TO THE POST OF DISTRICT JUDGE
(ENTRY LEVEL) IN TAMILNADU JUDICIARY.

MARKS OBTAINED BY THE CANDIDATES
IN THE WRITTEN EXAMINATION HELD ON 03.10.2010.

to see the results click the link below:

http://www.hcmadras.tn.nic.in/dj-markslist.pdf

All India Bar Examination-Details.

2010-10-22T07:26:00.001+05:30

The notification bringing the All India Bar Examination into force was passed by the Legal Education Committee and the members of the Bar Council of India at duly constituted meetings on April 10, 2010 and April 30, 2010.

Click here to see the presentation on the All India Bar Examination.

Click here to browse Frequently Asked Questions about the All India Bar Examination. [Click here to view FAQs in Hindi]

Click here to view instructions on how to fill up the OMR Application Form for the All India Bar Examination.

You can view instructions on how to fill up the application form in the video below

http://www.youtube.com/watch?v=ubnkl3Q7uXg&feature=player_embedded

Please write to barexam@barcouncilofindia.org if you have any questions.

Any person who is deprived of peaceful life on account of the nuisance created by a liquor shop can challenge it. The Madras HC held.

2010-10-21T15:57:00.001+05:30

THE MADRAS HIGH COURT.

DATED: 19 - 7 - 2010

CORAM

THE HONBLE MR.JUSTICE ELIPE DHARMA RAO

AND

THE HONBLE MR. JUSTICE K.K.SASIDHARAN

W.A.No. 1353 of 2010

The Tamil Nadu State Marketing Corporation Ltd.,

Rep.by its Managing Director

CMDA Tower II, Chennai. .. Appellant.

Versus

1. R.M. Shah

2. J. Sandeep

3. Commander O.A. Nair (Retd.)

BO, 13-B Orms Road

Kilpauk, Chennai.

4. Praful.C. Pargel

5. The Deputy Commissioner of Excise

& District Revenue Officer

6. The Collector of Chennai

Singaravelan Maligai

Rajaji Salai, Chennai. .. Respondents For Appellant : Mr.J. Ravindran

For RR 5 & 6 : Mr. G. Desingu, Spl. GP

Writ Appeal is preferred under Clause 15 of the Letters Patent against the order of the learned single judge in W.P.No. 38494 of 2005 dated 08.6.2010. ORDER

( made by ELIPE DHARMA RAO, J. )

The appellant challenges the order dated 08.6.2010 in W.P. No. 38494 of 2005 whereby and whereunder the learned Judge directed the closure of the liquor shop-cum-Bar run by the Tamil Nadu State Marketing Corporation Ltd., (for short,TASMAC) at Door No. 12/4 Ormes Road, Kilpauk.

2. The residents of Ormes Road preferred the Writ Petition in W.P.No.38494/05 for shifting the liquor shop- cum Bar at Door No.12/4 at Ormes Road, Kilpauk. The main grievance of the respondents 1 to 4 before the learned single Judge was that the location of the shop was highly objectionable as it was situated in a residential area, very near to a Girls School and a temple. The customers coming to the shop, after consuming liquor, used to threw the bottles indiscriminately all over the road and very often misbehaved with the local residents thereby creating lot of nuisance to the public. Though several representations were sent, there was no followup action, which made them to file the writ petition.

3. The TASMAC filed a counter affidavit contending that there was a private wine shop in the very same premises earlier for which there was no objection and that the area is not a pure residential area in view of the presence of commercial establishments in the street. It was further stated that the complaint sent by the writ petitioners were duly answered by the Corporation.

4. The learned single Judge, after hearing the learned counsel for the parties and the materials placed for consideration including the report of the Joint Commissioner of Police and the Topo sketch showing the location of the shop vis-`-vis the school and the temple, allowed the writ petition, and directed closure of the liquor shop within a period of four weeks from the date of receipt of the order. Challenging the same, the writ appeal has been filed by the TASMAC.

5. Heard the learned counsel for the appellant.

6. Learned Standing Counsel for the Appellant would submit that the TASMAC shop is not located within the prohibitory distance as contemplated in the Rules. According to him previously a private wine shop was located in the very same place, which is a commercial area, and nobody objected to the functioning of the liquor shop. It was only when TASMAC opened the Bar, the so-called residents have raised their objections. The learned counsel would further submit that the business of TASMAC would be reduced considerably in case of such shifting. Therefore he seeks to set aside the order passed by the learned Judge.

7. It is a matter of record that pursuant to the direction of the learned single Judge, the Joint Commissioner of Police filed a report which shows that there has been several nuisance cases filed against various persons by the G.3 Kilpauk Police Station (L & O) and between 2005 and 2006, 10 cases have been registered under Section 75(1)(b) of the Madras City Police Act. It is also clear from the report that the accused in the said cases have been fined by the respective Magistrates. The learned Judge, taking note of the safety of the school going children, ordered the closure of the liquor shop.

8. The principal contention of the learned Counsel for the appellant pertains to the distance rule. According to the learned Standing Counsel the liquor shop was located beyond the prohibited zone prescribed under the Tamil Nadu Liquor (Retail Vending) Rules and therefore the learned single Judge was not justified in directing the appellant to shift the shop on the alleged ground of Public nuisance.

9. It is true that the retail vending rules provide that no shops shall be established within a distance of 50 metres in Municipal Corporations and Municipalities and 100 metres in other areas, from any place of worship or educational institutions. However, that does not mean that the liquor shops so established would get a licence automatically to cause nuisance to the local people. The prescription of distance for opening the Bar is a matter between the state and the excise licensees. Merely because the shop is situated beyond the distance stipulated in the rules it cannot be said that there would be no nuisance to the people of the area. The distance rule takes care of only the place of worship or educational institutions. It does not say that the liquor shops should be away from residential houses. The nuisance created by the drunkards would extend even beyond the safety area prescribed under the rules. Therefore it all depends upon the facts and circumstances of each case. The factum of location of the shop beyond the prohibited distance would not come to the rescue of the licensee of liquor shops in the event of there being perennial nuisance to the residents of the area.

10. The appellant is right in their contention that there is nothing in the statute which prohibits conduct of liquor bar in residential zone. But such absence of restriction would not stand in the way of challenging the location of liquor bars which causes nuisance to the residents of the area.

11. It is a fact that some of the liquor shops are functioning from early morning till midnight without adhering to the time schedule. Therefore the fact that the liquor shop has been functioning in the area for a considerable period cannot be put against the public when they approach the authorities with complaints of nuisance accompanied by a request to shift the liquor outlet. It is not as if the liquor shop would earn business only if it is located in a commercial or residential area.

12. However, there is a word caution. The attempt of the public should not be to shift the liquor shop in a selective manner. There should be public interest behind any such move. The request for such closure should not be with a hidden agenda and the allegations of nuisance should not be at the instance of rival traders in liquor.

13. There is nothing on record to suspect the bonafides of the respondents 1 to 4 in their request to shift the liquor Bar. 14 Therefore we reject the contention of the appellant that no direction could be issued to shift the liquor shop in case the shop is located beyond the prohibited distance.

15. The right to life guaranteed under Art. 21 would include every aspect of life so as to make the life real and meaningful. The right to lead a peaceful life without any kind of nuisance has to be considered as one among the many facets of Article 21. India is a welfare state. The state is expected to promote the well being of its people. It is true that the State have to generate funds for undertaking welfare measures. The trade in liquor otherwise known as Res-extra-commercium is a major source of revenue to the state. But the generation of revenue should not be at the expense of the peaceful life of the people.

16. The Code of Criminal Procedure 1973 contains provisions for abatement of nuisance. Section 133 of the Code of Criminal Procedure 1973 reads thus:

133. Conditional order for removal of nuisance.(1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers (a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or (b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or (c ) ..

(d) ..

(e) .

(f) ..

Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance , tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order (i) to remove such obstruction or nuisance; or

(ii) to desist from carrying on, or to remove or regulate in such

manner as may be directed, such trade or occupation, or to

remove such goods or merchandise, or to regulate the

keeping thereof in such manner as may be directed; or

16. Therefore in the event of there being a public nuisance in a particular area the people are not without a remedy. The nuisance caused to the public on account of the functioning of liquor shops would give a cause of action to the affected people to approach the Magistrate under Sec.133 of Cr.P.C. or to take other legal measures to abate such nuisance.

17. The Supreme Court had an occasion to consider the scope of section 133 of Cr.P.C. in Ratlam Municipal Council case (1980(4) SCC 162). The Supreme Court held that Section 133 is categoric, although reads discretionary; and judicial discretion when facts for its exercise are present, has a mandatory import. It was also held that discretion becomes a duty when the beneficiary brings home the circumstances for its benign exercise. The Supreme Court further observed thus: 9. So the guns of Section 133 go into action wherever there is

Public nuisance. The public power of the magistrate under the

Code is public duty to the members of the public who are victims

of the nuisance, and so he shall exercise it when the jurisdictional

facts are present as here.

18. The learned Judge was armed with a report of the Joint Commissioner of Police which contains the details of nuisance cases registered in the locality. Therefore it cannot be said that the direction to shift the liquor shop was issued without basic materials.

19. There is no static measure of nuisance which can be applied to all situations alike. It is for the court to decide on the basis of materials as to whether the extent of nuisance was sufficient to direct the closure of liquor shop located in a particular area.

20. Therefore we are of the considered view that any person who is deprived of peaceful life on account of the nuisance created by a liquor shop could challenge the action in locating the shop in a residential or semi-residential locality as offending the right to life guaranteed under Article 21 of the Constitution of India notwithstanding the fact that the liquor shop satisfies the distance criteria.

21. In case the statutory authorities consider these local issues with a sense of responsibility there would be no occasion for the common man to approach the courts with Public Interest Litigation adding numbers to the Himalayan arrears in courts. The authorities should be sensitive to such issues of public importance. They should also realize that the people of this great nation are the political custodian of power and the Government is accountable to the people.

22. The Supreme Court in Ratlam Municipal Council case cited supra observed thus:

The pressure of the judicial process,expensive and dilatory, is neither necessary nor desirable if responsible bodies are responsive to duties.

23. When we have expressed our view that the respondents 1 to 4 clearly made out a case for shifting the liquor shop from the subject location on account of nuisance, the learned standing counsel for the appellant took time to file an affidavit agreeing to shift the shop. Subsequently the Chief General Manager of TASMAC as per his affidavit dt. 19th July,2010 agreed to shift the Liquor Shop No. 717 functioning at Door No.12/4 Ormes Road, Kilpauk, Chennai-10 to another place and made a request for granting reasonable time for such shifting. In view of the said submission we grant six weeks time to the appellant to comply with the order passed by the learned single judge.

24. The Writ Appeal is dismissed with the above observation. No costs.

Complete Judgments on Ayodhya site cases.

2010-10-01T06:05:00.001+05:30

To read the complete judgment on the Ayothi site cases click the following link.

http://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do

---------------------------------------------------------------------------------------------------------------------

1
ISSUES FOR BRIEFING
1. Whether the disputed site is the birth place of Bhagwan
Ram?
The disputed site is the birth place of Lord Ram. Place of
birth is a juristic person and is a deity. It is personified as the
spirit of divine worshipped as birth place of Lord Rama as a
child.
Spirit of divine ever remains present every where at all
times for any one to invoke at any shape or form in accordance
with his own aspirations and it can be shapeless and formless
also.
2. Whether the disputed building was a mosque? When
was it built? By whom?
The disputed building was constructed by Babar, the year
is not certain but it was built against the tenets of Islam. Thus, it
cannot have the character of a mosque.
3. Whether the mosque was built after demolishing a
Hindu temple?
The disputed structure was constructed on the site of old
structure after demolition of the same. The Archaeological
Survey of India has proved that the structure was a massive
Hindu religious structure.
4. Whether the idols were placed in the building on the
night of December 22/23rd, 1949?
The idols were placed in the middle dome of the disputed
structure in the intervening night of 22/23.12.1949.
2
5. Whether any of the claims for title is time barred?
O.O.S. No. 4 of 1989, the Sunni Central Board of Waqfs
U.P., Lucknow and others Vs. Gopal Singh Visharad and others
and O.O.S. No.3 of 1989, Nirmohi Akhara and Another Vs. Sri
Jamuna Prasad Singh and others are barred by time.
6. What will be the status of the disputed site e.g. inner
and outer courtyard?
It is established that the property in suit is the site of
Janm Bhumi of Ram Chandra Ji and Hindus in general had the
right to worship Charan, Sita Rasoi, other idols and other object
of worship existed upon the property in suit. It is also
established that Hindus have been worshipping the place in
dispute as Janm Sthan i.e. a birth place as deity and visiting it as
a sacred place of pilgrimage as of right since time immemorial.
After the construction of the disputed structure it is proved the
deities were installed inside the disputed structure on
22/23.12.1949. It is also proved that the outer courtyard was in
exclusive possession of Hindus and they were worshipping
throughout and in the inner courtyard (in the disputed
structure) they were also worshipping. It is also established that
the disputed structure cannot be treated as a mosque as it
came into existence against the tenets of Islam.
*********

Decision of Hon'ble Special Full Bench hearing Ayodhya Matters

Date of Judgment :- 30.9.2010

Coram :-

Hon'ble Sibghat Ullah Khan ,J.
Hon'ble Sudhir Agarwal, J.
Hon'ble Dharam Veer Sharma, J.

Gist of Judgments Per

Hon'ble Sibghat Ullah Khan ,J.
Hon'ble Sudhir Agarwal, J.
Hon'ble Dharam Veer Sharma, J.

Gist of Judgment
Gist of Judgment
Issues for Briefing
Brief Summary

Case Details

1.
Other Original Suit No. 1 of 1989
Gopal Singh Visharad (Now Dead) & Others
Vs.
Zahoor Ahmad & Others

2.
Other Original Suit No. 3 of 1989
Nirmohi Akhara & Others
Vs.
Baboo Priya Dutt Ram and Others

3.
Other Original Suit No. 4 of 1989
The Sunni Central Board of Waqfs U.P.& Others
Vs.
Gopal Singh Visharad (Now Dead) & Others.

4.
Other Original Suit No. 5 of 1989
Bhagwan Sri Ram Virajman and Others
Vs.
Rajendra Singh and Others

Judgments Per

Hon'ble Sibghat Ullah Khan ,J.
Hon'ble Sudhir Agarwal, J.
Hon'ble Dharam Veer Sharma, J.

Consolidated Judgment in
OOS No. 1 of 1989,
OOS No. 3 of 1989,
OOS No. 4 of 1989 &
OOS No. 5 of 1989
Consolidated Judgment in
OOS No. 1 of 1989,
OOS No. 3 of 1989,
OOS No. 4 of 1989 &
OOS No. 5 of 1989
: Vol 1
Judgment in OOS No. 1 of 1989

- do -
: Vol 2
Judgment in OOS No. 3 of 1989

- do -
: Vol 3
Judgment in
OOS No. 4 of 1989
: Vol 1

- do -
: Vol 4
Judgment in
OOS No. 4 of 1989
: Vol 2

- do -
: Vol 5
Judgment in
OOS No. 4 of 1989
: Vol 3

- do -
: Vol 6
Judgment in
OOS No. 4 of 1989
: Vol 4

- do -
: Vol 7
Judgment in OOS No. 5 of 1989

- do -
: Vol 8
Index of Annexure - I to III

- do -
: Vol 9
Annexure - I

- do -
: Vol 10
Annexure - II

- do -
: Vol 11
Annexure - III

- do -
: Vol 12
Page wise Index of Annexure IV

- do -
: Vol 13
Annexure IV - Page 1 to 125

- do -
: Vol 14
Annexure IV - Page 126 to 128

- do -
: Vol 15
Annexure IV - Page 129 to 162

- do -
: Vol 16
Page wise Index of Annexure V

- do -
: Vol 17
Annexure V - Page 1 to 14

- do -
: Vol 18
Annexure V - Page 15 to 59

- do -
: Vol 19
Annexure V - Page 60 to 117

- do -
: Vol 20
Annexure V - Page 112A

- do -
: Vol 21*
Annexure V - Page 118 to 189

Annexure V - Page 190 to 220

Annexure V - Page 221 to 281

*Vol 21 Per Hon'ble Sudhir Agarwal J. includes :

1.
Appendix 8 : General Index

2.
Appendix 9 : Citation Index

3.
Appendix 10 : Reference Book Index

Writ petitions challenging the notification called for the posts of District Judges in Tamil Nadu were dismissed by the Madras High Court.

2010-09-07T19:04:00.001+05:30

Madras High Court

DATED: 26..08..2010

CORAM

THE HONBLE Mr.M.Y.EQBAL, CHIEF JUSTICE

and

THE HONBLE Mr.JUSTICE T.S.SIVAGNANAM

W.P.Nos. 16383, 15566 & 18451 of 2010

W.P.(MD) Nos.9090 & 9119 of 2010

M.P.Nos.1 & 2 of 2010 in W.P.No.16383 of 2010, 1 of 2010 in W.P.No.15566 of 2010, 1+1 of 2010 in W.P.(MD)No.9090/2010, 1 to 4 of 2010 in W.P.No.9119 of 2010

& 1 of 2010 in W.P.18451 of 2010

-------------

W.P.No.16383 of 2010

K.Appadurai,

S/o.P.Kandavel,

Bathrakaliamman Koil Street,

Vadugapatti (PO),

Periyakulam Taluk,

Theni District. ..Petitioner.

Vs.

1. The Secretary to Government,

Public (Special.A) Department,

Government of Tamil Nadu,

Secretariat, Chennai 600 009.

2. The Principal Secretary to Government,

Social Welfare & Noon Meal Project (SW4) Department,

Government of Tamil Nadu,

Secretariat,

Chennai 600 009. ..Respondents.

PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus calling for the records relating to the impugned notification issued by the 1st respondent in the Internet and published in the Hindu dated 1.7.2010, inviting application for Direct Recruitment and Appointment for the post of District Judges (Entry Level) and quash the same and consequently direct the 1st respondent herein to publish afresh notification in a transparent manner indicating the number of vacancies ear-marked for disabled applicants in accordance with Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and pass such further or other orders. ------------

For Petitioner :: Mr.M.Venkadesan

For Respondents :: Mr.J.Raja Kalifulla, Govt. Pleader

-------------

W.P.No.15566 of 2010

Manikandan Vathan Chettiar,

Advocate,

28, Sait Colony, 1st Street,

Chennai 8. ..Petitioner.

Vs.

1. The Secretary to Government,

Public (Special.A) Department,

Secretariat, Chennai.

2. The Registrar General,

High Court,

Madras. ..Respondents.

PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of declaration declaring that propounding the impugned notification dated 24.06.2010 issued by the 1st respondent as ultra vires Articles 14 and 141 of the Constitution of India, and direct the respondents to issue a de novo notification in consonance with all constitutional diktats and render justice. -----------

For Petitioner :: V.Manikandan Vathan Chettiar

(Petitioner in Person)

For Respondent-1 :: Mr.J.Raja Kalifulla, Govt. Pleader

For Respondent-2 :: Mr.R.Muthukumaraswamy,

Senior Counsel

For Mr.K.Ravichandrababu

W.P.No.18451 of 2010

M.Selvaraj, M.Sc., L.L.M.,

S/o.Sri. S.V. Munuswamy,

Hindu, aged about 47 years,

No.26, A, IAF Road,

Srinivasan Nagar,

Selaiyur,

Chennai 73. ..Petitioner.

Vs.

The State of Tamil Nadu,

Rep. by Secretary to Government,

Public (Special.A) Department,

Secretariat,

Chennai 600 009. ..Respondent.

PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ in the nature of declaration declaring the rule of Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 as unconstitutional and consequently, the notification dated 24.06.2010 issued by the respondent also be declared unconstitutional and thus render justice. -------------

For Petitioner :: Mr.G.Justin

For Respondent :: Mr.J.Raja Kalifulla, Govt. Pleader

-------------

W.P.(MD)No.9090 of 2010

R.Vidhya,

No.5-7/28-3,

Anupallavi Nagar,

Kalai Nagar Extension,

Madurai 17. ..Petitioner.

Vs.

1. The Secretary to Government,

Public (Special.A) Department,

Secretariat, Chennai.

2. The Registrar General,

Madras High Court,

Chennai.

3. The Bar Council of India,

New Delhi.

4. The Bar Council of Tamil Nadu,

High Court Campus,

Chennai 104. ..Respondents.

(R3 and R4 are impleaded as party respondents as per order of the

Court dated 16.07.2010 in W.P.(MD) No.9090/10)

PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorari to call for the records of the 1st respondent in Ref.No.DIPR/841/display/2010 dated 24.06.2010 and to quash the notification issued by the Secretary to Government (Special.A) Department in Ref. No.DIPR/841/display/2010 dated 24.06.2010 in so far inviting application from Assistant Public Prosecutor Grade I and II and pass any appropriate orders and thus render justice. ------------

For Petitioner :: Mr.N.Sundareshan

For Respondent-1 :: Mr.P.Kumaresan, Public Prosecutor

For Respondent-2 :: Mr.R.Muthukumaraswamy, Senior Counsel

For Mr.K.Ravichandrababu

For Respondents3&4 :: Mr.P.S.Raman, Advocate General

For Petitioner in M.P.1/10 :: Mr.K.Doraiswamy, Senior Counsel

(Impleading Petition) For Muthumani Doraisamy

-------------

W.P.No.9119 of 2010

B.Ramesh Babu,

S/o.Balaguru,

Flat No.2956,

TNHB Colony,

Villapuram,

Madurai 1. ..Petitioner.

Vs.

1. The Registrar General,

High Court of Madras,

Chennai.

2. The State of Tamil Nadu,

Rep. by its Secretary,

Public (Special.A) Department,

Secretariat,

Chennai.

3. The Chairman,

Co-ordination Committee for

The Persons with Disabilities

(Equal Opportunity, Protection of Rights and

Full Participation) Committee,

Department of Social Welfare,

State of Tamil Nadu,

Secretariat,

Chennai. ..Respondents.

PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamusto call for the records of the 2nd respondent pursuance to his proceeding Nil dated 24.06.2010 which was published on 1.7.2010 and quash the same in so far as the petitioner is concerned and direct the respondents to include the physically disabled persons to be appointed as District Judge direct selection and reserve a post by giving effect to Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and pass such other or further orders. --------------

For Petitioner :: Mr.K.P.S.Palanivel Rajan

For Respondent-1 :: Mr.R.Muthukumaraswamy, Senior Counsel

For Mr.K.Ravichandrababu

For Respondent-2 :: Mr.P.Kumaresan, Public Prosecutor

---------------

C O M M O N O R D E R

The Honble The Chief Justice

Since, in all these writ petitions the petitioners have attacked and assailed the notification calling for application for appointment to the post of District Judges (Entry Level) on various grounds, they have been heard together and disposed of by this common order.

2. For better appreciation, the notification published in the daily newspaper The Hindu on 01.07.2010 issued by the Government of Tamil Nadu, Public (Special.A) Department is reproduced herein under.

GOVERNMENT OF TAMIL NADU

Public (Special.A) Department,

Secretariat, Chennai 600009.

NOTIFICATION CALLING FOR APPLICATIONS FOR THE POST OF DISTRICT JUDGES (ENTRY LEVEL)

Applications are invited by the Government of Tamil Nadu for appointment of seventeen (17) posts of District Judges (Entry Level) in the Tamil Nadu State Judicial Service to be made by direct recruitment under the amended provisions of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 from Advocates or Pleaders in India who have not less than seven years practice and Practising as on the date of this notification. The distribution of the above said 17 vacancies is as follows:

General Turn - 4 (1 Woman)

Scheduled Caste - 1 (1 Woman)

(Arunthathiyars on preferential basis)

Most Backward Classes & - 4 (1 Woman)

Denotified Communities

Backward Classes - 4 (1 Woman)

(Other than Backward Class Muslims)

Scheduled Caste - 3 (1 Woman)

Backward Class Muslims - 1

-----

Total - 17

-----

The reservation in recruitment in respect of differently abled persons is governed by the orders issued in G.O.Ms.NO.87, SW&NMP (SW-4_ Department, Dated:17.7.2008.

2. An Applicant should be of sound health and active habits and free from any bodily defect or infirmity making him/her unfit for appointment. The 17 posts of District Judges (Entry Level) shall be filled by direct recruitment from among the eligible advocates on the basis of the written and viva-voce test prescribed and to be conducted by the High Court of Madras in accordance with the rules.

3. A candidate shall along with his application:

(i) If he/she is an Advocate or Pleader, produce from the Presiding Officer of the Court in which he/she is actually Practising, a certificate indicating the length of his/her practice;

(ii) If he/she is an Assistant Public Prosecutor, Grade-I or an Assistant Public Prosecutor, Grade II, produce from the Collector of the District concerned, a certificate indicating the length of his/her service. (iii) Produce a certificate of good character, from a Senior Advocate/Counsel and another from a responsible person, not being a relative but who is well acquainted with him/her in private life.

4. The selection shall be made based on the results of written examination and viva voce i.e., the selection will be made on the basis of the total marks obtained by the candidates in the written examination and viva voce taken together subject to the rule of reservation of appointment. The maximum marks allotted for the written examination and viva voce shall be 75% and 25% respectively.

5. The notification, enlisting the successful candidates prepared under these rules shall be published in the Tamil Nadu Government Official Gazette and it shall cease to be operative as from the date of Publication of the next list of successful candidates prepared under these rules, in the Tamil Nadu Government Official Gazette.

6. (i) The applicant must possess a Degree in Law of a University in India established or incorporated by or under a Central Act or a State Act or an institution recognized by the University Grants Commission, or any other equivalent qualification and got enrolled in the Bar Council of Tamil Nadu; and in the case of candidates enrolled in the Bar Councils of other States, they should submit proof of transfer of their enrollment to the Bar Council of Tamil Nadu. (ii) The applicant must be Practising on the date of Notification as an advocate and must have so practiced for a period of not less than seven years as on such date.

(iii) The applicant must not have attained the age of 48 years in the case of SC/ST and 45 years in the case of others as on 1st July of the year 2010.

(iv) The scale of pay for the post of District Judges is Rs.16750-400-19150-450-20500/- (Pre-revised Scale)

7. The written examination will be of 3 hours duration involving Law Paper Part I (Civil), Law Paper Part II (Criminal) and Law Paper Part III (General) carrying 25 marks each (75 marks total) and 25 marks is ear-marked for viva-voce. The Question Papers on Law Paper Part I, II & III will be set in English as well as in Tamil. The candidates shall answer either in English or in Tamil/ but not in both.

The written examination will precede the viva-voce examination. As to short listing the candidates, their length of practice at the bar and the marks obtained by them in the written examination will be considered and such short listed candidates alone will be called for viva-voce examination.

8. The application in the prescribed format shown below along with the attested copes of certificates as required should be sent by Registered Post with acknowledgement due to the Secretary to Government of Tamil Nadu, Public (Special.A) Department, Secretariat, Chennai 600 009 so as to reach the office on or before 5.45 pm on 16.07.2010. Candidates should check up the correctness of the particulars furnished in the application. Candidates should submit only one application for the post. The written examination will be held at Chennai on 01.08.2010 and the venue of examination will be intimated later by the High Court of Madras. Candidates shall enclose a Demand Draft for Rs.250/- (Rs.100/- in case of SC candidates) towards examination fee payable by way of Demand Draft in favour of the Registrar General, High Court of Madras along with the application form. Two passport size photographs of the candidate (one to be affixed in the application from) and a copy of latest community certificate shall be enclosed.

9. No traveling allowance will be paid to the applicant for attending written examination/interview and for joining the post if he/she is selected.

10. Every person appointed to the post of District Judge by direct recruitment shall,

(a) from the date on which he/she joins duty, be on probation for a total period of two years on duty within a continuous period of three years;

(b) undergo training as prescribed by the High Court of Madras.

Only after satisfactory completion of the training, the direct recruit will be posted as District Judge.

3. W.P.(MD)No.9090 of 2010 was filed in Madurai Bench of the Madras High Court. The petitioner therein sought issuance of a writ of certiorari for quashing the notification as contrary to Article 14 of the Constitution of India as the service personnel and the non-service personnel form a different class. It is stated that a person not already in service of the Union or of the State shall only be eligible to be appointed, if he had been for not less than 7 years of service as Advocate or Pleader. The main contention of the petitioner therein is that the Assistant Public Prosecutors Grade I and Grade II, who were employees under the State Government, drawing salary from the exchequer, are not entitled to and eligible for appearing in the examination.

4. In W.P.No.16383 of 2010 and W.P.(MD)No.9119 of 2010 the aforesaid notification was challenged on the ground that the said notification does not indicate the number of vacancies earmarked for disabled candidates in accordance with Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. It is stated that while distributing the 17 vacancies against each category, it does not show the category of disabled persons and reservation in the distribution of vacancies to disabled persons. According to the petitioner, the rule of 3% reservation for disabled persons is applicable for mass appointment in every establishment. The said minimum of 3% has been adopted as per Section-33 read with Section 2(k) of the aforesaid Act of 1995. The petitioners case is that the disabled persons constitute a special category, and reservation by government for them is a special drive to ensure and guarantee equal opportunities to them in the society.

5. In W.P.No.15566 of 2010 the above referred to notification was challenged on the ground that apart from 100% marks, the length of bar experience is stated as a criteria for short listing the candidates to appear in the viva-voce, without any explanation as to the manner in which it is proposed to be done. The petitioners case is that as per the decisions of the Supreme Court the marks allotted to the viva-voce shall not exceed 12.50% of the total marks, whereas the impugned notification prescribes as much as 25% of the marks to the viva-voce, which is unconstitutional. The impugned notification also suffers from serious illegality in as much as apart from 100% marks the length of bar experience is stated as a criteria for short listing the candidates for viva-voce without giving any explanation as to the manner in which it is proposed to be done. The petitioner also challenged the notification on the ground that no syllabi has been prescribed for the examination, which is contrary to all canons of reasonableness.

6. In W.P.No.18451 of 2010 the petitioner sought for a declaration to declare that the Rules of Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 as unconstitutional, and consequently the impugned notification issued by the respondent for appointment to the post of District Judges (Entry Level) as also ultra vires and unconstitutional. It is stated that the candidates in the subordinate judicial service as Magistrates, Sub Judges and District Munsifs, who have put in 7 years of practice before their appointment in such service, can also be made eligible to appear for the examination for the recruitment of District Judges as in the case of Assistant Public Prosecutors Grade-I and Grade-II. According to the petitioner therein, the Assistant Public Prosecutors Grade I and Grade II are employees of the State and they are not pleaders. The respondents having made eligible the Assistant Public Prosecutors Grade I and Grade II, it is wholly unjustifiable to exclude the Magistrates, District Munsifs and Sub Judges to appear for the examination, as they are also government servants, and they must also be given a chance for their career advancement based on merit.

7. In W.P.(MD)No.9090 of 2010 a counter affidavit has been filed by the second respondent therein viz., the Registrar General, High Court, Madras. It is stated that as per the order of the Supreme Court in W.P.(C) No.1022 of 1989 dated 21.03.2002, the Full Court of the Madras High Court re-drafted the Tamil Nadu State Judicial Service (Cadre & Recruitment) Rules, 2007 and the Draft Rules were approved by the Government of Tamil Nadu, which came into effect from 19.01.2007. It is stated that pursuant to the order passed by a Division Bench of this Court in W.P.Nos.14499 of 2009 & Batch on 01.12.2009 and 26.02.2010 the Government was directed to forward the Draft Notification calling for applications containing the application proforma to fill up 17 posts of District Judges (Entry Level) by direct recruitment from the Bar for approval of the High Court as per the Rules. The Draft Notification forwarded by the Government was considered and approved by the High Court, and accordingly, the Government published the notification impugned in the writ petition. It is stated that as per Serial No.3(iii) of the Schedule to Rule 5 of the Tamil Nadu State Judicial Service (Cadre & Recruitment) Rules, 2007 applications were invited for appointment of 17 posts of District Judges (Entry Level), and it was mentioned that the candidates, along with their application, shall furnish the certificates mentioned therein. The second respondent justified the notification by referring to Article 233 (2) of the Constitution, which would include Law Officers practising before a Court of Law. Hence, according to the second respondent the notification inviting applications from Advocates/Pleaders, Assistant Public Prosecutors Grade I and II for appointment to the post of District Judge (Entry Level) is perfectly justified.

8. In the separate counter affidavits filed by the first respondents in W.P.(MD)No.9119 of 2010 the common stand taken are that the Government of Tamil Nadu in G.O.Ms.No.87 dated 17.07.2008, issued orders to adhere to the system of 200 point roster, dividing into six classifications granting an equal ratio of 1:1:1 to the disabled category i.e., Blind, Deaf and Orthopaedically challenged as far as possible and to select differently abled persons among the 33 vacant posts in each division. It is stated that though the nature of duties and responsibilities attributed to the post of District Judge (Entry Level) requires persons free from certain disabilities like blindness, total deafness, etc. so as to discharge his official duties, every possible steps have been taken to give equal opportunities to the eligible disabled persons, and hence, the operation of the relevant G.O. in respect of differently abled persons in the present selection process was not notified in the notification calling for applications.

9. In W.P.No.15566 of 2010 the main defense taken by both the respondents are that as per the recruitment rules the selection shall have to be made based on the result in the written examination and the viva-voce i.e., the selection will be made on the basis of the total marks obtained by the candidates in their written examination and viva-voce taken together, subject to the rule of reservation for appointments. The maximum marks allotted to the written examination and the viva-voce shall be 75% and 25%. It is stated that the marks fixed for the viva-voce i.e., 25% is neither violative of any rules nor against the decisions of the Supreme Court.

10. First, we will take up the writ petition being W.P.No.9090 of 2010 wherein the notification inviting applications for appointment for the post of District Judge (Entry Level) was challenged on the ground that inviting the applications from the Assistant Public Prosecutors Grade - I and II for appointment to the said post is illegal and unconstitutional, and against the provisions of Article 223 of the Constitution of India.

11. Before coming to this issue, it would be useful to state here the brief history about the procedure for appointment for the post of District Judges (Entry Level). Before independence, originally, the post of District and Sessions Judges and Additional Sub Judges were filled by persons from Indian Civil Service. In 1922, the Governor General in Council issued notification empowering the local government to make appointment to the said service from the Members of Provincial Civil Service (Judicial Branch) or from the Members of the Bar. In exercise of the power conferred by Section 246 and 250 of the Government of India Act, 1935, the Secretary of State for India framed Rules called Reserved Post (Indian Civil Service) Rules, 1938. Under those Rules the Governor was given power to appoint a District Judge from among the Members of the Judicial Service of the Province or from Members of the Bar. Till India attained independence the position was that the District Judges were appointed by the Governor from these sources i.e., Indian Civil Service, Provincial Judicial Service and the Bar. But, after independence in 1947 recruitment to the Indian Civil Service was discontinued and the Government of India decided that the Members of the newly created Indian Administrative Service would not be given judicial post. Thereafter, District Judges had been recruited only either from the Judicial Service or from the Bar.

12. Article 233 deals with the appointments, postings and promotion of District Judges in any State. Article 234 deals with the recruitment of persons other than District Judges to the judicial service. Article 233, which is relevant here, is quoted herein below: 233. Appointment of District Judges (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. (2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.

13. From a bare reading of Art. 233, it is manifest that it is a self-contained provision regarding the appointment of District Judges. A qualification has been laid down in clause (2) of Art. 233 as to who will be eligible for the said post. The provision in Art. 233 (2) has been discussed in series of decisions rendered by the Supreme Court and various High Courts. The expression service used in clause (2) of Art. 233 means the judicial service.

14. In Satya Narain Singh Vs. High Court of Judicature, Allahabad reported in AIR 1985 SC 308 the facts of the case were that pursuant to the notification for appointment of District Judges by direct recruitment, members of the Uttar Pradesh Subordinate Judicial Service applied to the Uttar Pradesh Higher Judicial Service by direct recruitment. They claimed that each of them have completed 7 years of practice at the Bar even before their appointment to the judicial service and they are eligible to be appointed by direct recruitment to the higher judicial service. The said writ petition was dismissed by the High Court holding that the members of the Uttar Pradesh Judicial Service were not eligible to be appointed by direct recruitment. The matter ultimately went up to the Supreme Court. Dismissing the writ petitions their Lordships, after quoting Art. 233 of the Constitution, observed :- Para-3: The first clause deals with appointments of persons to be, and the posting and promotion of, District Judges in any State while the second clause is confined in its application to persons not already in the service of the Union or of the State. We may mention here that Service of the Union or of the State has been interpreted by this Court to mean judicial service. Again while the first clause makes consultation by the Governor of the State with the High Court necessary, the second clause requires that the High Court must recommend a person for appointment as a District Judge. It is only in respect of the persons covered by the second clause that there is a requirement that a person shall be eligible for appointment as District Judge if he has been an Advocate or a Pleader for not less than 7 years. In other words, in the case of candidates who are not members of a Judicial Service they must have been advocates or pleaders for not less than 7 years and they have to be recommended by the High Court before they may be appointed as District Judges, while in the case of candidates who are members of a Judicial Service the 7 years rule has no application but there has to be consultation with the High Court. A clear distinction is made between the two sources of recruitment and the dichotomy is maintained. The two streams are separate until they come together by appointment. Obviously the same ship can not sail both the streams simultaneously. The dichotomy is clearly brought out by S.K.Das, J. in Rameshwar Dayal Vs. State Punjab (AIR 1961 SC 816)(supra) where he observes (at P.822): Article 233 is a self contained provision regarding the appointment of District Judges. As to a person who is already in the service of the Union or of the State, no special qualifications are laid down and under Cl.(1) the Governor can appoint such a person as a District Judge in consultation with the relevant High Court. As to a person not already in service, a qualification is laid down in Cl.(2) and all that is required is that he should be an advocate or pleader of seven years standing. Again dealing with the cases of Harbans Singh and Sawhney it was observed.

We consider that even if we proceed on the footing that both those persons were recruited from the Bar and their appointment has to be tested by the requirements of Clause (2), we must hold that they fulfilled those requirements. Clearly the Court was expressing the view that it was in the case of recruitment from the Bar, as distinguished from Judicial Service that the requirements of Cl.(2) had to be fulfilled. We may also add here earlier the Court also expressed the view, .we do not think that Cl.(2) of Art.233 can be interpreted in the light of the Explanation added to Articles 124 and 217. .

Para-5: Posing the question whether the expression the service of the Union or of the State meant any service of the Union or of the State or whether it meant the judicial service of the Union or of the State, the learned Chief Justice emphatically held that the expression the service in Art.233(2) could only mean the judicial service. But he did not mean by the above statement that persons who are already in the service, on the recommendation by the High Court can be appointed as District Judges, overlooking the claims of all other Seniors in the Subordinate Judiciary contrary to Art.14 and Art.16 of the Constitution.

15. In Chandra Mohan Vs. State of Uttar Pradesh reported in AIR 1966 SC 1987 a similar question came up for consideration before the Supreme Court. In that case the appointment of judicial officers to the post of Superior Judicial Service was challenged. The Supreme Court dismissed the appeals holding that the Uttar Pradesh Higher Judicial Service Rules providing for the recruitment of the District Judges from the persons in judicial service are constitutionally void. Their Lordships observed in paragraph 16 as follows:- 16. So far there is no dispute. But the real conflict rests on the question whether the Governor can appoint as District Judges persons from services other than the judicial service; that is to say, can he appoint a person who is in the police, excise, revenue or such other service as a District Judge? The acceptance of this position would take us back to the pre-independece days and that too to the conditions prevailing in the Princely States. In the Princely States one used to come across appointments to the judicial service from police and other departments. This would also cut across the well-knit scheme of the Constitution and the principle underlying it, namely., the judiciary shall be an independent service. Doubtless if Art.233(1) stood alone, it may be argued that the Governor may appoint any person as a District Judge, whether legally qualified or not, if be belongs to any service under the State. But Art.233(1) is nothing more than a declaration of the general power of the governor in the matter of appointment of District Judges. It does not lay down the qualifications of the candidates to be appointed or denote the sources from which the recruitment has to be made. But the sources of recruitment are indicated in Cl.(2) thereof. Under Cl.(2) of Art.233 two sources are given, namely, (i) persons in the service of the Union or of the State and (ii) advocate or pleader. Can it be said that in the context of Ch.VI of Part VI of the Constitution the service of the Union or the State means any service of the Union or of the State or does it mean the judicial service of the Union or of the State? The setting, viz., the chapter dealing with subordinate courts, in which the expression the service appears indicates that the service mentioned therein is the service pertaining to Courts. That apart, Article 236(2) defines the expression judicial service to mean a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge. If this definition, instead of appearing in Art.236, there cannot be any dispute that the service in Art.233(2) can only mean the judicial service. The circumstances that the definition of judicial service finds a place in a subsequent Article does not necessary lead to a contrary conclusion. The fact that in Article 233(2) the expression the service is used whereas in Arts.234 and 235 the expression judicial service is found is not decisive of the question whether the expression the service in Art.233(2) must be something other than the judicial service, for, the entire chapter is dealing with the judicial service. The definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with District Judges. The expressions, exclusively and intended emphasise the fact that the judicial service consists only of persons intended to fill up the posts of District Judges and other civil judicial posts and that is the exclusive service of judicial officers. Having defined judicial service in exclusive terms, having provided for appointments top that service and having entrusted the control of the said service to the care of the High Court, the makers of the Constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a District Judge.

16. Rule 49 of the Bar Council of India Rules as it stood prior to 2001 reads as under:-

Rule-49: An advocate shall not be a full-time salaried employee of any person, Government, firm, corporation or concern, so long as he continues to practice and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practice as an advocate so long as he continues in such employment. Nothing in this Rule shall apply to a law officer of the Central Government or of a State or of any public corporation or body constituted by statute who is entitled to be enrolled under the rules of his State Bar Council made under Section 28(2)(d) read with Section 24(1)(e) of the Act despite his being a full-time salaried employee. Law officer for the purpose of this Rule means a person who is so designated by the term of his appointment and who, by the said term, is required to act and/or plead in courts on behalf of his employer.

17. In the case of Sushma Suri Vs. Government of National Capital Territory of Delhi reported in (1999) 1 SCC 330, the aforesaid Rule 49, as it stood prior to its deletion in 2001, was considered by the Supreme Court. In that case, in response to an advertisement issued by the Delhi High Court for appointment in Delhi Higher Judicial Service, the appellant working as an Additional Government Advocate in Government of India and also advocate on record of the Supreme Court, applied for the said post. But, she was not called for the interview on the ground that she was not eligible. The appellant moved the Delhi High Court in a writ petition and the same was dismissed on the ground that a Law Officer of the government, though entitled to enroll as an advocate for the purpose of Advocates Act, 1961, ceased to be a member of the Bar. The matter has been finally considered by the Supreme Court. The Supreme Court, taking into consideration Rule 49 of the Bar Council of India Rules, held that an advocate employed with the Government or a Body Corporate as its Law Officer even on terms of payment of salary would not cease to be an advocate. Their Lordships observed in paragraphs 8, 9 and 10 as follows:- 8. For purposes of the Advocates Act and the Rules framed thereunder the law officer (Public Prosecutor or Government Counsel) will continue to be an advocate. The intention of the relevant Rules is that a candidate eligible for appointment to the Higher Judicial Service should be a person who regularly practises before the court or tribunal appearing for a client.

9. In Oma Shanker Sharma case, CWP No.1961 of 1987 the Delhi High Court approached the matter in too pedantic a manner losing sight of the object of recruitment under Article 233(2) of the Constitution. Whenever any recruitment is conducted to fill up any post, the area of recruitment must be as broad-based as the Rules permit. To restrict it to advocates who are not engaged in the manner stated by us earlier in this order is too narrow a view, for the object of recruitment is to get persons of necessary qualification, experience and knowledge of life. A Government Counsel may be a Public Prosecutor or Government Advocate or a Government Pleader. He too gets experience in handling various types of cases apart from dealing with the officers of the Government. Experience gained by such persons who fall in this description cannot be stated to be irrelevant nor detrimental to selection to the posts of the Higher Judicial Service. The expression members of the Bar in the relevant Rule would only mean that particular class of persons who are actually practising in courts of law as pleaders or advocates. In a very general sense an advocate is a person who acts or pleads for another in a court and if a Public Prosecutor or a Government Counsel is on the rolls of the Bar Council and is entitled to practise under the Act, he answers the description of an advocate.

10. Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a full-time employee of any person, Government, firm, corporation or concern and on taking up such employment, shall intimate such fact to the Bar Council concerned and shall cease to practise as long as he is in such employment. However, an exception is made in such cases of law officers of the Government and corporate bodies despite his being a full-time salaried employee if such law officer is required to act or plead in court on behalf of others. It is only to those who fall into other categories of employment that the bar under Rule 49 would apply. An advocate employed by the Government or a body corporate as its law officer even on terms of payment of salary would not cease to be an advocate in terms of Rule 49 if the condition is that such advocate is required to act or plead in courts on behalf of the employer. The test, therefore, is not whether such person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a court of law as an advocate. In that event the terms of engagement will not matter at all. What is of essence is as to what such law officer engaged by the Government does whether he acts or pleads in court on behalf of his employer or otherwise. If he is not acting or pleading on behalf of his employer, then he ceases to be an advocate. If the terms of engagement are such that he does not have to act or plead, but does other kinds of work, then he becomes a mere employee of the Government or the body corporate. Therefore, the Bar Council of India has understood the expression advocate as one who is actually practising before courts which expression would include even those who are law officers appointed as such by the Government or body corporate.

18. In the case of State of U.P. Vs. Johri Mal, reported in (2004) 4 SCC 714, while discussing the rights and duties of the Public Prosecutors appointed in terms of Section 24 of the Code of Criminal Procedure, their Lordships held (Paras 39 & 50 at pp.734 &737) : 39. The appointment of Public Prosecutors, on the other hand, is governed by the Code of Criminal Procedure and/or the executive instructions framed by the State governing the terms of their appointment. Proviso appended to Article 309 of the Constitution of India is not applicable in their case. Their appointment is a tenure appointment. Public Prosecutors, furthermore, retain the character of legal practitioners for all intent and purport. They, of course, discharge public functions and certain statutory powers are also conferred upon them. Their duties and functions are onerous but the same would not mean that their conditions of appointment are governed by any statute or statutory rule. .

50. The very premise whereupon the High Court has based its decisions, therefore, was incorrect. The impugned judgment, thus, cannot be sustained as it suffers from misdirection in law.

19. Section 2(1)(a) of the Advocates Act, 1961 (in short Act) defines the word Advocate which means an advocate entered in any roll under the provisions of this Act. Section 16 of the Act lays down the provisions for admission and enrollment of advocates. According to Section 17 every State Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names and addresses of all persons who were entered as advocates on the roll of any High Court under the Indian Bar Councils Act, 1926 and shall be enrolled as advocates under the said Act in any area to his intention of practice within the jurisdiction of the Bar Council. Section 24 of the Act prescribes the qualification for appointment as an advocate on the State Roll. According to this provision, a person shall be qualified to be admitted as an advocate on a State Roll if he fulfils certain conditions prescribed therein. Section 28 of the Act confers powers to the State Bar Councils to make rules to carry out the purposes of the Act. Section 29 categorically provides that the advocates are the only recognized class of persons entitled to practice law. Similarly, Section 33 provides that it is the advocates alone whose names have been enrolled as advocates are entitled to practice law. For better appreciation, Sections 30 and 33 of the Act are quoted herein below: 30.Right of advocates to practice Subject to provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practice throughout the territories to which this Act extends, - (i)in all Courts including the Supreme Court;

(ii)before any tribunal or person legally authorized to take evidence; and

(iii)before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.

33.Advocates Alone entitled to practice Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any Court or before any authority or person unless he is enrolled as an advocate under this Act.

20. Considering the aforesaid provisions it is manifest that all persons who have been enrolled as advocates are entitled to practice in a Court of Law except persons who ceased to be advocates and whose names have been de-listed or cancelled from the roll of the advocates maintained by the Bar Council.

21. In the case of Satish Kumar Sharma Vs. Bar Council of H.P. reported in (2001) 2 SCC 365, the aforesaid provisions of the Advocates Act were considered by the Supreme Court. In that case the appellant, having obtained LL.B degree, was appointed to the post of Assistant(Legal) by the H.P.State Electricity Board. The post was later redesignated as Law Officer Grade II. The Electricity Board thereafter issued permission to the appellant to act as an advocate on its behalf and also undertook to bear his enrollment expenses. After the filing of the enrollment application, the designation of the appellant was changed to Law Officer. The Bar Council thereafter issued a certificate of enrollment to the appellant and the appellant started functioning as an advocate. Subsequently, the Bar Council issued show cause notice to the appellant directing him to explain why his enrollment ought not to be cancelled. The Bar Council then passed a resolution withdrawing the enrollment of the appellant on the ground that under Rule 49 of the Bar Council of India Rules he was no longer entitled to enrollment after his promotion. The said resolution was challenged by the appellant in a writ petition, which was dismissed. The matter then went up to the Supreme Court where the appellant contended that paragraph 2 of Rule 49 of the Bar Council of India Rules had created an exception to the bar against full time salaried employees from being enrolled as advocates. It was contended that the exception was in respect of Law Officers of Central or State or Public Corporation or statutory bodies who are entitled to enrollment under the Rules of their respective State Bar Councils. Dismissing the appeal the Supreme Court held that -

19. It is an admitted position that no rules were framed by the respondent entitling a Law Officer appointed as a full-time salaried employee coming within the meaning of para 3 of Rule 49 to enroll as an advocate. Such an enrolment has to come from the rules made under Section 28(2)(d) read with Section 24(1)(e) of the Act. Hence it necessarily follows that if there is no rule in this regard, there is no entitlement. In the absence of express or positive rule, the appellant could not fit in the exception and the bar contained in the first paragraph of Rule 49, was clearly attracted as rightly held by the High Court. Added to this, in the light of terms of appointment/promotion orders issued by the Board to the appellant, it is clear that the first appointment of the appellant was as Assistant (Legal). Subsequent promotions as Under-Secretary (Legal)-cum-Law Officer, Deputy Secretary (Legal)-cum-Law Officer and Additional Secretary (Law) show that the appellant was not designated as Law Officer. Similarly, there is no indication in any of the appointment/promotion orders issued to the appellant that he was to act or plead in the courts of law on behalf of the Board except in the order dated 5-7-1984. At any rate from these orders it cannot be said that he was/is required to act or plead in courts on behalf of the employer mainly or exclusively so as to come within the meaning of Law Officer for the purpose of Rule 49. It appears the modified orders dated 11-6-1984 and 5-7-1984 were issued by the Board in order to get enrolment of the appellant as an advocate on the roll of the respondent. None of the appointment/promotion orders issued to the appellant indicate that his duties were exclusively to act or plead in courts on behalf of the Board as Law Officer. These orders clearly show that the appellant was required to work in the Legal Cell of the Secretariat of the Board; was given different pay scales; rules of seniority were applicable; promotions were given to him on the basis of the recommendations of the Departmental Promotion Committee; was amenable to disciplinary proceedings, etc. Further looking to the nature of duties of Legal Cell as stated in the regulation of business of the Board extracted above, the appellant being a full-time salaried employee had/has to attend to so many duties which appear to be substantial and predominant. In short and substance we find that the appellant was/is a full-time salaried employee and his work was not mainly or exclusively to act or plead in court. Further, there may be various challenges in courts of law assailing or relating to the decisions/actions taken by the appellant himself such as challenge to issue of statutory regulation, notification or order; construction of statutory regulation, statutory orders and notifications, the institution/withdrawal of any prosecution or other legal/quasi-legal proceedings etc. In a given situation the appellant may be amenable to disciplinary jurisdiction of his employer and/or to the disciplinary jurisdiction of the Bar Council. There could be conflict of duties and interests. In such an event, the appellant would be in an embarrassing position to plead and conduct a case in a court of law. Moreover, mere occasional appearances in some courts on behalf of the Board even if they be, in our opinion, could not bring the appellant within the meaning of Law Officer in terms of para 3 of Rule 49. The decision inSushma Suri v. Govt. of National Capital Territory of Delhi2 in our view, does not advance the case of the appellant. That was a case where meaning of expression from the Bar in relation to appointment as District Judge requiring not less than seven years standing as an advocate or a pleader came up for consideration. The word advocate in Article 233(2) was held to include a Law Officer of the Central or State Government, public corporation or a body corporate who is enrolled as an advocate under exception to Rule 49 of Bar Council of India Rules and is practising before courts for his employee. Para 10 of the said judgment reads: (SCC pp. 336-37) 10. Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a full-time employee of any person, Government, firm, corporation or concern and on taking up such employment, shall intimate such fact to the Bar Council concerned and shall cease to practise as long as he is in such employment. However, an exception is made in such cases of Law Officers of the Government and corporate bodies despite his being a full-time salaried employee if such Law Officer is required to act or plead in court on behalf of others. It is only to those who fall into other categories of employment that the bar under Rule 49 would apply. An advocate employed by the Government or a body corporate as its Law Officer even on terms of payment of salary would not cease to be an advocate in terms of Rule 49 if the condition is that such advocate is required to act or plead in courts on behalf of the employer. The test, therefore, is not whether such person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a court of law as an advocate. In that event the terms of engagement will not matter at all. What is of essence is as to what such Law Officer engaged by the Government does whether he acts or pleads in court on behalf of his employer or otherwise? If he is not acting or pleading on behalf of his employer, then he ceases to be an advocate. If the terms of engagement are such that he does not have to act or plead, but does other kinds of work, then he becomes a mere employee of the Government or the body corporate. Therefore, the Bar Council of India has understood the expression advocate as one who is actually practising before courts which expression would include even those who are Law Officers appointed as such by the Government or body corporate.(emphasis supplied)

20. As stated in the above para the test indicated is whether a person is engaged to act or plead in a court of law as an advocate and not whether such person is engaged on terms of salary or payment by remuneration. The essence is as to what such Law Officer engaged by the Government does.

22. In the light of the ratio laid down by the Supreme Court in the decisions quoted herein before, it can safely be concluded that the nature of duties of the Assistant Public Prosecutors is to act and plead in Courts of Law on behalf of the State as Advocates. Even after becoming Assistant Public Prosecutors they continue to practice as advocates and plead the cases on behalf of the Government and their names remained in the roll of advocates maintained by the Bar Council. As Public Prosecutors they acquired much experience in dealing criminal cases.

23. It was argued on behalf of the petitioners that the note appended to Rule 49 of the Bar Council of India Rules having been deleted by a resolution dated 22nd June, 2001 of the Bar Council of India, the ratio decided by the Supreme Court in Sushma Suri Case (supra) will not apply, and therefore, an advocate who is employed as a full time salaried employee of the government, ceases to practice as an advocate so long as he continues in such employment. The submission made by the counsel has no substance.

24. As noticed above, Rule 49 of the Bar Council of India Rules provides an exception where in case of Law Officers of the government and corporate bodies, despite they being employed by the government as Law Officers, they cannot cease to be advocates so long as they are required to plead in the courts. For example, Assistant Public Prosecutors so appointed by the government on payment of salary their only nature of work is to act, plead and defend on behalf of the State as an advocate. Hence, an advocate employed by the government as Law Officer namely, an Assistant Public Prosecutor on terms of payment of salary would not cease to be an advocate in terms of Rule 49 of the Bar Council of India Rules for the purpose of appointment, as such advocate is required to act or plead in courts on behalf of the State. If, in terms of the appointment, an advocate is made a Law Officer on payment of salary to discharge his duties at the Secretariat and handle the legal files, he ceased to be an advocate. In our considered opinion, therefore, the deletion of the note appended to under Rule 49 of the Bar Council of India Rules will not in any way affect the legal proposition of law. We are also of the view that in the light of the relevant clauses of the Advocates Act, 1961 it will not debar the Assistant Public Prosecutors to continue and plead in courts as an advocate.

25. A similar question arose before the Madhya Pradesh High Court in the case of Smt.Jyoti Gupta Vs. Registrar General, High Court of M.P. (2008(3)MPHT 13 = MANU/MP/0151/2008) as to whether the Assistant Public Prosecutors are eligible to apply for appointment for the post of District Judges, their Lordships held - Para-16. A careful reading of the note provided in the exception states that nothing in Rule 49 of the Bar Council of India Rules shall apply to a Law Officer of the Central Government, State Government or a body corporate who is entitled to be enrolled under the rules of the State Bar Council under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 despite his being a full-time salaried employee. Hence, the exception to Rule 49 has been provided because of the provisions in the Rules of State Bar Council made under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 for a Law Officer of the Central Government or the State Government or a body corporate to be admitted into the roll of the State Bar Council if he is required by the terms of his appointment to act and/or plead in Courts on behalf of his employer. In other words, if the rules made by the State Bar Council under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 provide for admission as an Advocate, enrolment in the State Bar Council as an Advocate or a Law Officer of the Central Government or the State Government or a body corporate, who, by the terms of his employment, is required to act and/or plead in Courts on behalf of his employer, he can be admitted as an Advocate and enrolled in the State Bar Council by virtue of the provisions of Sections 24(1)(e) and 28(2)(d) of the Advocates Act, 1961 and the rules made thereunder by the State Bar Council and he does not cease to be an Advocate on his becoming such Law Officer of the Central Government, State Government or a body corporate. As we have seen, the State Bar Council of M.P. has provided under Proviso(i) of Rule 143 that a Law Officer of the Central Government or a Government of State or a public corporation or a body constituted by a statute, who by the terms of his appointment, is required to act and/or plead in Courts on behalf of his employer, is qualified to be admitted as an Advocate even though he may be in full or part-time service or employment of such Central Government, State Government, public corporation or a body corporate. The position of law, therefore, has not materially altered after the deletion of the note contained in the exception under Rule 49 of the Bar Council of India Rules by the resolution of the Bar council of India, dated 22nd June, 2001. ..

Para-21. In the result, we hold that if a person has been enrolled as an Advocate under the Advocates Act, 1961 and has thereafter been appointed as Public Prosecutor/Assistant Public Prosecutor or Assistant District Public Prosecutor and by the terms of his appointment continues to conduct cases on behalf of the State Government before the Criminal Courts, he does not cease to be an Advocate within the meaning of Article 233(2) of the Constitution and Rule7(1)(c) of M.P.Uchchatar Nyayik Sewa (Bharti Tatha Sewa Shartein) Niyam, 1994 for the purpose of recruitment to the post of District Judge (Entry Level) in the M.P.Higher Judicial Service.

26. Having gone through the relevant provisions of the Constitution, the Advocates Act and the Bar Council Rules and considering the ratio laid down by the Supreme Court as discussed hereinabove, we do not find any merit in the writ petition, W.P. No.9090 of 2010. W.P.Nos.16383 of 2010 & W.P.(MD)No.9119 of 2010:

27. As stated above in these two writ petitions, the impugned notification has been challenged by the petitioners on the ground that the said notification does not indicate the number of vacancies earmarked for disabled candidates as per the provisions of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Learned counsel appearing for the petitioners in these two writ petitions contended that while distributing 17 vacancies against each category, the notification does not show the category of disabled persons and reservation in the distribution of vacancies to disabled persons. Learned counsel submitted that rule of 3% reservation for disabled persons is applicable inasmuch as the disabled persons constitute a special category.

28. As against that the respondent Government, in its counter affidavit filed in W.P.No.16383 of 2010, stated that the reservation in recruitments in respect of disabled persons is governed by the G.O.Ms.No.87 dated 17.07.2008. As per the said G.O., orders were issued to adhere to the system of 200 point roster dividing into 6 classifications granting an equal ratio of 1:1:1 to the disabled category viz., blind, deaf and orthopaedically challenged. It is stated in the impugned notification that the reservation roster applicable to 17 vacancies are earmarked, and in the notification itself there is a mention that the reservation in respect of differently abled persons is governed by G.O.Ms.No.87 dated 17.7.2008. It is further stated that the 3% reservation will be ensured by each Appointing Authority by appointing one individual belonging to differently abled category in each of the 6 blocks of 200 point communal roster. It is further stated in the counter that the entire notification is given for the Vertical Reservation i.e., for communities, whereas the differently abled persons comes under Horizontal Reservation, hence, the petitioner will be accommodated if he comes on merit and will be absorbed under his respective communal quota. It is further stated that the State Government is giving utmost importance for providing employment opportunities to the differently abled persons. It is also submitted that the impugned notification is crystal clear about the reservation meant for differently abled persons and facilitates them to apply for the same as per the existing rules, and there is no arbitrariness on the part of the State Government, and hence, the impugned notification does not violate the fundamental rights guaranteed under Articles 14, 15 and 21 of the Constitution of India. The obligation of filling up of the vacancies as per 3% reservation will be carried out by the Appointing Authority at the time of appointment by appointing one individual belonging to differently abled category in each of the 6 blocks of 200 point Communal Roaster.

29. The Registrar General, High Court, Madras, in her counter affidavit filed in W.P.(MD)No.9119 of 2010 reiterated the stand taken by the State Government. It is stated that the Government of Tamil Nadu in G.O.Ms.No.87 dated 17.07.2008 issued orders to adhere to the system of 200 point roaster dividing into 6 classifications granting an equal ratio of 1:1:1 to the disabled category i.e., Blind, Deaf and Orthopaedically challenged as far as possible, and to select differently abled persons among the 33 vacant posts in each division, and follow the method of making selection against their respective community in the communal roaster. It is further stated that inner rotation for all eligible categories including the differently abled persons are provided in the 200 point roaster, which is going to be adopted for the present selection on the basis of G.O.Ms.No.87 dated 17.07.2008. It is further stated that though the nature of duties and responsibilities attributed to the post of District Judge (Entry Level) required persons free from certain disabilities like blindness, total deafness, etc., so as to discharge his official duties, every possible steps have been taken to give equal opportunities to the eligible disabled persons, and hence, the operation of the relevant Governmental Order viz., G.O.Ms.No.87 dated 17.07.2008 in respect of differently abled persons in the present selection process was notified in the impugned notification itself. Therefore, it is submitted that the impugned notification is transparent and strictly adhering to the rules of reservation in force.

30. After hearing the learned counsel appearing for the parties, we are of the view that the stand taken by the respondents in their respective counter affidavit is fully justified inasmuch as the system of 200 point roaster dividing into 6 classifications granting an equal ratio of 1:1:1 to the disabled category has been followed. It has been categorically stated that the obligation of filling up of vacancies as per 3% reservation would be carried out by the Appointing Authority at the time of appointment as per the roaster. In that view of the matter, we find that the impugned notification is transparent and is strictly adhering to the rules of reservation in force. Hence, the contention made by the petitioners in these two writ petitions are misconceived and devoid of any substance. We, therefore, do not find any merit in this writ petition also. W.P.No.15566 of 2010

31. In this case the impugned notification has been challenged only on the ground that the maximum marks allotted to the written examination and the viva voce shall not be 75% and 25% respectively. Learned counsel for the petitioner contended that apart from 100% marks, the length of Bar experience is fixed as a criteria for short listing candidates for viva voce without any explanation as to the manner in which it is proposed to be done, which is illegal and unconstitutional. According to the learned counsel, the marks to be allotted to the viva voce shall not in any case exceed 12.5% of the total marks. In this connection, the learned counsel for the petitioner relied upon a decision of the Supreme Court in Mohinder Sen Garg Vs. State of Punjab reported in (1991) 1 SCC 662. In this context, first we would like to refer to Annexure I under Rule 5 of the Tamil Nadu State Judicial (Cadre and Recruitment) Rules, 2007, which reads as follows:- The selection shall be made based on the results of written examination and viva voce i.e., the selection will be made on the basis of the total marks obtained by the candidates in the written examination and viva voce taken together subject to the rule of reservation of appointment. The maximum marks allotted for the written examination and viva voce shall be 75% and 25% respectively.

32. The contention of the learned counsel for the petitioner that the marks fixed for the viva voce shall not exceed 12.5% cannot be accepted in view of the recent decision of the Supreme Court rendered in the case of Manish Kumar Shahi Vs. State of Bihar reported in 2010(6) SCALE 166. In that case, an advertisement was issued by the Bihar Public Service Commission for appointment of Civil Judges (Junior Division). As against the 850 marks prescribed for the written test 200 marks was allotted for viva voce. The said allotment of 200 marks for the viva voce was challenged by a candidate and ultimately the matter went up to the Supreme Court. The question that fell for the consideration of the Supreme Court was whether the marks prescribed for viva voce test/interview are excessive. The Supreme Court, after considering the various decisions including the decision rendered in Mohinder Sen Garg Vs. State of Punjab, (1991) 1 SCC 662 observed that 6. Shri. Jayant Bhushan, learned Senior Counsel argued that the High Court committed a serious error in denying relief to the petitioner by invoking the principle of estoppel/waiver ignoring that he had challenged the constitutionality of the rule by which excessive marks have been prescribed for viva voce test and also questioned the selection made by the Commission on the ground of violation of his fundamental right to equality guaranteed under Articles 14 and 16 of the Constitution. Learned counsel emphasized that the rule of estoppel, waiver and acquiescence cannot be applied in the cases involving violation of the rights guaranteed under Part III of the Constitution. He then submitted that the marks prescribed for viva voce test are highly excessive and contrary to the law laid down by this Court in Ashok Kumar Yadav Vs. State of Haryana, (1985) 4 SCC 417.

33. Their Lordships further observed that

9. The question whether the marks prescribed for viva voce test/interview are excessive and selection made in accordance with the criteria like the one specified in Rule 14 read with Appendix C and para (vi) of the advertisement issued by the Commission has been considered by this Court in several cases including those upon which reliance has been placed by learned counsel for the petitioner. Although, no straightjacket formula has been judicially evolved for determining whether the prescription of particular percentage of marks for viva voce test/interview introduces an element of arbitrariness in the process of selection or gives unbridled power to the recruiting authority/agency to select less meritorious candidates, by and large, the courts have not found any Constitutional infirmity in prescribing of higher percentage of marks for viva voce test/interview for recruitment to judicial services, administrative services and the like.

34. The next ground of challenge to the notification is that no syllabi has been prescribed for the said examination, which is contrary to all canons of reasonableness. It appears from paragraph 7 of the impugned notification that the subjects and the marks had been categorically mentioned therein. For better appreciation paragraph 7 of the impugned notification is quoted herein below:- 7. The written examination will be of 3 hours duration involving Law Paper Part I (Civil), Law Paper Part II (Criminal) and Law Paper Part III (General) carrying 25 marks each (75 marks total) and 25 marks is ear-marked for viva-voce. The Question Papers on Law Paper Part I, II & III will be set in English as well as in Tamil. The candidates shall answer either in English or in Tamil/ but not in both.

35. Besides the above, all persons, who aspire to become a District Judge, are supposed to have knowledge of civil, criminal and other laws and must have put in 7 years standing in the Bar as an advocate. It has rightly been contended by the respondents that the post of District Judge is a coveted one having multiple responsibilities both on the judicial side and on the administrative side, and therefore, the candidates must have a good knowledge in civil, criminal and other laws and also basic knowledge in general law. In our considered opinion the impugned notification does not suffer from any error on account of non-furnishing of the syllabi. Hence, the challenge made by the petitioner on this ground cannot be sustained. W.P.No.18451 of 2010

36. In this writ petition, the petitioner seeks a declaration that the Rules of Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 as unconstitutional, and consequently the impugned notification issued by the respondent for appointment to the post of District Judges (Entry Level) as also ultra vires and unconstitutional. It is stated that the candidates in the subordinate judicial service as Magistrates, Sub Judges and District Munsifs, who have put in 7 years of practice before their appointment in such service, can also be made eligible to appear for the examination for the recruitment of District Judges as in the case of Assistant Public Prosecutors Grade-I and Grade-II. According to the petitioner therein, the Assistant Public Prosecutors Grade I and Grade II are employees of the State and they are not pleaders. The respondents having made eligible the Assistant Public Prosecutors Grade I and Grade II, it is wholly unjustifiable to exclude the Magistrates, District Munsifs and Sub Judges to appear for the examination, as they are also government servants, and they must also be given a chance for their career advancement based on merit.

37. While discussion the point raised by other writ petitioners with regard to eligibility of Addl. Public Prosecutors to appear in the examination, we have discussed at length the provision of Art. 233 of the Constitution of India and referring to various decisions of the Supreme Court held that the candidates holding the post in the Subordinate Judicial Service are not eligible to appear in examination and not eligible for appointment to the post of District Judge (Entry Level). In that view of the matter, the rule of the Tamil Nadu State Judicial Service (Cadre & Recruitment) Rules, 2007, cannot be held to be unconstitutional. Hence, this writ petition has also no merit and is devoid of any substance.

38. In the result, all these writ petitions are dismissed. Consequently, connected miscellaneous petitions are closed. However, there shall be no order as to costs.

39. Since the post of District Judges are lying vacant and there are urgent need of District Judges to be posted in different places, we direct the concerned respondents to notify the date and venue of the written examination within a period of six weeks from today.

NATIONAL ANTI-CORRUPTION STRATEGY - Help eradicate corruption…please.

2010-09-06T06:36:00.001+05:30

The central vigilance commission invites public response on the draft strategy to curb the corruption in all possible ways. Based on our feed back, the commission would recommend the final strategy to the government.

Hence, please download the draft strategy from the commission website: www.cvc.nic.in

AND AFTER READING IT SEND YOUR RESPONSE TO THE COMMISSION ON OR BEFORE 20.9.10.

“Justice inaccessible to many”

2010-09-03T19:16:00.001+05:30

The legal profession is fastly changing to income oriented business and no longer it is service oriented noble profession.

‘A plain reading of Rule 46 of Bar Council of India Rules in part-VI relating to standards of professional conduct and etiquette made clear that an advocate was under an obligation to provide them legal assistance even when someone was not in a position to adequately pay him for his services, he said, urging the lawyers community to argue a few cases without any fee for the disadvantaged masses.’

-vsk.

“Justice inaccessible to many”

Special Correspondent

Illiteracy, ignorance and economic conditions major contributors, says judge

— Photo: M. Vedhan

(From left) V. Bharathidasan, Secretary, Madras Bar Association; K. Alagiriswami, president, Madras Bar Association; Justice Elipe Dharma Rao of the Madras High Court; Justice P. Sathasivam of the Supreme Court; and M.Y. Eqbal, Chief Justice, Madras High Court, at an endowment lecture in Chennai on Thursday.

Chennai: In the absence of access to justice, people are unable to exercise rights, challenge discrimination and deprivation or hold decision-makers accountable, said Justice P. Sathasivam, Judge, Supreme Court of India.

Delivering the XIII Endowment Lecture of ‘S. Viswanathan and B.R. Dolia Lecture Endowment Trust' at the Madras High Court on Thursday, Justice Sathasivam said access to justice was made a universal right by UN agencies and guaranteed by the Indian Constitution without any discrimination. However, in reality, because of various factors, it had become unreachable to many.

Illiteracy, ignorance and economic conditions were the major contributors to inaccessibility for justice. On account of socially and economically disadvantages, many legally injured people were not in a position to approach appropriate forum for redressal of their grievances, without even the knowledge that their rights were being violated.

Even if they had the knowledge, they lacked the finance to pay court fees and to meet other expenses, he noted.

PIL was one platform to justice to the disadvantaged sections of society. Various other legal systems and procedures had to work simultaneously to ensure justice for all.

As the three major challenges faced by the disadvantaged groups were availability, affordability and adequacy of legal aid, the governments and non-governmental actors had the duty to ensure access to legal aid and awareness, he said.

Appeal to lawyers

A plain reading of Rule 46 of Bar Council of India Rules in part-VI relating to standards of professional conduct and etiquette made clear that an advocate was under an obligation to provide them legal assistance even when someone was not in a position to adequately pay him for his services, he said, urging the lawyers community to argue a few cases without any fee for the disadvantaged masses.

Justice M.Y. Eqbal, Chief Justice, Madras High Court, said the court of law was the last resort of the people and for effective access to justice, it required the elements of legal awareness, legal access to courts and effective decision making by judges and proper implementation of those decisions.

Justice Elipe Dharma Rao, Judge, Madras High Court, presided. M. Ravindran, Additional Solicitor General of India, introduced the speaker. Senior advocate A.L. Somayaji briefed about the trust. Madras Bar Association president K. Alagiriswami welcomed the gathering and secretary V. Bharathidasan proposed a vote of thanks.

-A report from The Hindu, dt.4.9.10.

See the last para - “the Bar Councils are enjoined with the duty to ensure the dignity and purity of the noble profession”

2010-08-25T06:48:00.001+05:30

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 18.3.2009

CORAM:

THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO

AND

THE HONOURABLE MR.JUSTICE R.SUBBIAH

Habeas Corpus Petition No.142 of 2008

S.Sengkodi ... Petitioner

Vs.

1.State of Tamil Nadu,

rep.by its Chief Secretary to Government,

Fort St.George,

Chennai-600009.

2.The Superintendent of Police,

'Q' Branch,

No.73, Natesan Salai,

Chennai-600004.

3.The Director General of Prisons,

Chennai-600008.

4.The Superintendent of Central Prison,

Trichy

5.State of Orissa,

Rep.by the Superintendent of Police,

Korapet,

Orissa State ... Respondents

* * *

Habeas Corpus Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, directing the respondents to produce the body and person of the petitioner's client Sundaramoorthy S/o.Vediyappan, who is under the illegal custody of the respondents before this Honourable Court and set him at liberty forthwith. * * *

For petitioner : Mr.R.Sankarasubbu

For respondents : Mr.N.R.Elango, Addl.P.P.

* * *

O R D E R

ELIPE DHARMA RAO, J.

The petitioner is the practising advocate and she has filed this petition seeking the release of her client Sundaramoorthy, S/o.Vediyappan, who is alleged to have been illegally detained by the respondents.

2. On behalf of the respondents, a strong objection regarding the maintainability of this petition has been raised on the ground that the Advocate engaged by the detenu, since cannot be called as a 'friend or relative' of the detenu and that the Advocate being the Officer of the Court, the petitioner, a practising Advocate, cannot enter into the shoes of her client and she cannot be a substitute for her client. It has further been submitted on the part of the respondents that the detenu is an under trial prisoner and he is in judicial custody in the cases, wherein he is an accused and there is no illegal detention, as has been submitted on the part of the petitioner and would pray to dismiss this petition.

3. Prior to entering into discussion of other aspects of the case, the legal question put forth on the part of the respondents, regarding the very maintainability of this petition, filed by the petitioner, a practising advocate, on behalf of her client, needs to be discussed.

4. The learned counsel for the petitioner would argue that the powers of the Court in matters of detention are very wide and anybody, who has a concern for the detenu, can file a Habeas Corpus Petition. Much has been argued and emphasised on the part of the petitioner that in the matters of Habeas Corpus, strict rules of pleading should not be followed and that such Habeas Corpus petition can be filed by anybody and therefore, this Habeas Corpus Petition filed by the petitioner, a practising advocate, for the release of her client, is very well maintainable. In support of his arguments, the learned counsel for the petitioner would rely on a judgment of the Honourable Supreme Court in SMT.ICCHU DEVI CHORARIA vs. UNION OF INDIA AND OTHERS [AIR 1980 SC 1983], wherein it has been held as follows: "In case of an application for a writ of habeas corpus, the practice evolved by Supreme Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a detenu from jail has been sufficient to activise the Court into examining the legality of detention. The Supreme Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. Whenever a petition for a writ of habeas corpus has come up before the Supreme Court it has almost invariably issued a rule calling upon the detaining authority to justify the detention. Once the rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law. Where large masses of people are poor, illiterate and ignorant and access to the courts is not easy on account of lack of financial resources, it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention and make out a prima facie case in support of those grounds before a rule is issued or to hold that the detaining authority should not be liable to do anything more than just meet the specific grounds of challenge put forward by the petitioner in the petition. The burden of showing that the detention is in accordance with the procedure established by law has always been placed by the Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law."

5. There cannot be any doubt regarding the above proposition laid down by the Honourable Apex Court. It is no doubt a legal principle that not only the detenu but any friend or relative of the detenu can knock the doors of the Court under Article 226 of the Constitution, challenging his detention. In these circumstances, a question would arise as to 'whether an Advocate engaged by a client for some legal redressal, can enter into the shoes of the client substituting himself for the client and file a petition for the release of the client'.

6. In PRAVIN C.SHAH vs. K.A.MOHD.ALI [(2001) 8 SCC 650], the Honourable Apex Court has held:

"The right to practise, is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a mater on which the court must have the major supervisory power. Hence the court cannot be divested of the control or supervision of the court merely because it may involve the right of an advocate."

7. In LINGAPPA POCHANNA APPELWAR vs. STATE OF MAHARASHTRA [(1985) 1 SCC 479], a Three Judge Bench of the Honourable Apex Court has held as follows:

"The only fundamental right recognised by the Constitution is that under Art.22(1) by which an accused who is arrested and detained in custody is entitled to consult and be defended by a legal practitioner of his choice. In all other matters i.e. in suits or other proceedings in which the accused is not arrested and detained on a criminal charge, the litigant has no fundamental right to be represented by a legal practitioner. The Legislature in this case feels for good reasons that for the implementation of the legislation, it would not subserve the public interest if lawyers were allowed to appear, plead or act on behalf of the non-tribal transferees...." Thus, a conjoint reading of the above judgments of the Honourable Supreme Court would make it clear that the machinery for dispensation of justice, according to law, is operated by the court. Proceedings inside the courts are always expected to be held in a dignified and orderly manner. The advocate, indeed, is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. Every legal practitioner is an officer of the court and aids in the cause of justice.

8. At this juncture, we feel it apt to extract the observations of the Honourable Apex Court in its Three Judge Bench judgment in INDIAN COUNCIL OF LEGAL AID & ADVICE vs. BAR COUNCIL OF INDIA [(1995) 1 SCC 732], regarding the duties of the Bar Councils, which read as follows: "The Bar Councils are enjoined with the duty to act as sentinels of professional conduct and must ensure that the dignity and purity of the profession are in no way undermined. Its job is to uphold the standards of professional conduct and etiquette. Thus every State Bar Council and the Bar Council of India has a public duty to perform, namely, to ensure that the monopoly of practice granted under the Act is not misused or abused by a person who is enrolled as an advocate. Since the duty of a lawyer is to assist the court in the administration of justice, the practice of law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the Code of Conduct behoving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society."

9. Thus, the Bar Councils are enjoined with the duty to ensure the dignity and purity of the noble profession. The Advocates Act, 1961 has been enacted to amend and consolidate the law relating to legal practioners and to provide for the constitution of Bar Councils and an All India Bar. Under Section 7 of the Advocates Act, the functions of the Bar Council of India are mandated, which includes to lay down standards of professional conduct and etiquette for advocates. With the power flowing from the Advocates Act, the Bar Council of India has framed the Bar Council of India Rules. Part-VI of the Bar Council of India Rules deal with 'Rules Governing Advocates'. Chapter-II of Part-VI prescribes 'standards of professional conduct and etiquette', wherein Rule 6 mandates: "An Advocate shall not enter appearance, act, plead or practise in any way before a court, tribunal or Authority mentioned in Section 30 of the Act, if the sole of any member thereof is related to the Advocate as father, grandfather, son, grand son, uncle, brother, nephew, first cousin, husband, wife, mother, daguther, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law or sister-in-law."

10. Rule 9 mandates that 'an Advocate should not act or plead in any manner in which he is himself peculiarly interested'. Rule 18 mandates that 'an advocate shall not, at any time, be a party to fomenting litigation'.

11. Therefore, according to the above provisions of law, an Advocate is barred from entering into appearance, act, plead or practise if the sole of any member thereof is related to him and wherein he is peculiarly interested. When, to maintain the decorum of the noble profession of advocacy, such a bar is created on an Advocate, by operation of law, to appear, plead and act on behalf of the blood relatives of the Advocate, we are unable to accept the contention of the petitioner that she can file this petition for the release of her client, thus acting herself as the client. In the absence of any provision of law, permitting the Advocates to enter into the shoes of their clients as a 'party interested' and further in the absence of any pleading made on the part of the petitioner as to what necessitated her to enter into the shoes of her client, when, admittedly, the detenu is having blood relatives, like wife, to champaign his cause, we are not in a position to accept the plea of the petitioner that she can very well maintain this petition. Further more, Section 30 of the Advocates Act, 1961 permits the Advocates only to practise the noble profession of law and not to substitute themselves for their clients. When the Bar Council of India Rules, prescribing the standards of professional conduct and etiquette do not permit such an action on the part of a legal practitioner and in the absence of any reason leave alone a justifiable reason for the petitioner to file this petition on behalf of her client, it is to be held in no uncertain terms that this petition, filed by the petitioner, a practising advocate, for the release of her client, is not maintainable.

12. Even by assuming, without accepting, that a practising Advocate can be permitted to enter into the shoes of his client, we have to keep in mind the consequences that will follow the suit if such acts are permitted to be performed by a practising Advocate. If such a situation is permitted, then, there may not be any client-Advocate relation but only a client and defacto client relationship between the party and his counsel, resulting in adversely affecting the dignity and decorum of the noble profession and further running contrary to the Standards of Professional conduct and etiquette, prescribed under the Bar Council of India Rules, wherein Rule 9 contemplated that 'an Advocate should not act or plead in any manner in which he is himself peculiarly interested' and Rule 18 mandated that 'an advocate shall not, at any time, be a party to fomenting litigation'. If an Advocate is permitted to enter into the shoes of his client, definitely, he would become a person of 'peculiarly interested' and there is every possibility of his fomenting the litigation, which is against Rules 9 and 18 of the Bar Council of India Rules. Thus, viewing this legal aspect from this angle also, we are not in a position to accept the plea urged on the part of the petitioner that she can enter into the shoes of her client.

13. In arriving at this decision, we garner support from a judgment of the Honourable Apex Court inVINOY KUMAR vs. STATE OF U.P. AND OTHERS [2001 SCC (Cri) 806]. In the said case, aggrieved by the orders passed by the District and Sessions Judge, Varanasi, dated 13.2.2001, transferring a number of criminal cases for disposal to the Additional District and Sessions Judge/Special Judge, the petitioner, Advocate, representing the accused persons in three of such transferred cases, filed a writ petition in the High Court praying for quashing of the said order. It was contended that by the transfer of the cases, the speedy trial of the accused has been hampered and that the order has been passed in a casual manner. The said writ petition was dismissed by the High Court, holding that the petitioner being an Advocate had no locus standi to challenge the legality of the order by way of a writ petition. Aggrieved, the said petitioner/Advocate approached the Supreme Court and the Supreme Court has held as follows: "Generally speaking, a person shall have no locus standi to file a writ petition if he is not personally affected by the impugned order or his fundamental rights have neither been directly or substantially invaded nor is there any imminent danger of such rights being invaded or his acquired interests have been violated ignoring the applicable rules. The relief under Article 226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction. The exception to the general rule is only in cases where the writ applied for is a writ of habeas corpus or quo warranto or filed in public interest. It is a matter of prudence, that the court confines the exercise of writ jurisdiction to cases where legal wrong or legal injuries are caused to a particular person or his fundamental rights are violated, and not to entertain cases of individual wrong or injury at the instance of third party where there is an effective legal aid organisation which can take care of such cases. Even in cases filed in public interest, the court can exercise the writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened and such person or determined class of persons is, by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief. In the instant case the petitioner had not filed the petition in public interest and did not disclose the circumstances which prevented the affected persons from approaching the court. In the discharge of his professional obligations, the petitioner Advocate is not obliged to file the writ petition on behalf of his clients. No circumstance was mentioned in the petition which allegedly incapacitated the affected persons from filing the writ petition. Section 30 of the Advocates Act only entitles an advocate to practise the profession of law and not to substitute himself for his client. The filing of the writ petition in his own name, being not a part of the professional obligation of the advocate, the High Court was justified in dismissing the writ petition holding that the petitioner had no locus standi."

14. Similar is the position with regard to the case on hand also. It is not a case filed in the interest of the public and no circumstances which prevented the affected party or his friend or relative from filing this petition have been explained by the petitioner. At this juncture, it is also to be pointed out that in the petition filed by the petitioner, no reason whatsoever has been offered on the part of the petitioner to justify her action in filing this petition for the release of her client. When we pointed out the same, she has come out with a written statement stating that she is a public spirited lawyer and duty counsel to the detenu Sundaramurthy and therefore, she has filed this petition. The detenu himself has also filed a supportive affidavit. When such is the position that the detenu is in a position to file an affidavit before this Court, what prevented either himself or his blood relatives or even his friends from invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, has not at all been explained, throughout, on the part of the petitioner. Therefore, for all the above reasons and discussions, we have no hesitation to hold that the petitioner, a practising Advocate, has no locus standi to file this petition, substituting herself for her client and entering into the shoes of her client. Thus deciding this issue of maintainability in favour of the respondents and holding that this petition filed by a practising Advocate for the release of her client is not maintainable, we shall now proceed to discuss and decide the other aspects of the case urged and argued on either side, so as to give a quietus to the entire issue on hand.

15. It has been argued on the part of the petitioner that the procedure contemplated under the Criminal Procedure Code has not been followed, rather violated, by the respondents and thus, this petition is entitled to be allowed.

16. From the materials placed on record it is seen that the detenu Sundaramurthy was admitted into the Central Prison, Puzhal, Chennai on 11.7.2007, on the orders passed by the Judicial Magistrate No.1, Dharmapuri, in P.R.C.No.17/2001 for the offences punishable under Section 25(1-b)(a) r/w.Section 3 of the Arms Act. The detenu was also remanded in eleven more cases under various Sections of law, including two cases under Section 302 IPC and two cases of 307 IPC. While this being the position, a Prisoners Production Warrant in G.R.No.117-A/2004, dated 19.12.2007 was issued by the Sub Divisional Magistrate, Korapet, Orissa State in connection with Korapet Town P.S.Crime No.117-A/2004 for offences under Sections 147,148,302, 342, 396, 450, 427, 120(B), 109 and 149 IPC r/w.Section 25(a) of the Arms Act based on which, the detenu was taken to Korapet, Orissa and was also produced him before the concerned Court and thereafter, he was again handed over to the Central Prison No.1, Puzhal, Chennai on 27.7.2008. Thereafter, heeding to his request to permit him to visit his mother, who is not in a position to come over to Chennai from the native place to call on him, the learned Special Judge, TADA Court, Chennai, by his order in Crl.M.P.No.32/2008 in C.C.No.6/1993 has permitted him to visit his native place on any one of the days between 17.10.2008 and 24.10.2008. Accordingly, the detenu was taken to his village namely Ramiyampatti village, Palakode Taluk, Dharmapuri District on 18.10.2008 and was admitted at Central Prison, Vellore for night halt on 18.10.2008 and on 19.10.2008, he was taken to his native village and he met his mother and again on the night of 19.10.2008, he was halted at Central Prison, Vellore and later, he was re-admitted at Central Prison No.1, Puzhal, Chennai on 20.10.2008.

17. In this entire process, we are unable to find any legal flaw committed on the part of the respondents, so as to brand his arrest and production before the concerned Court as an illegal one. Further, all the procedures contemplated under Sections 78, 79, 80 and 81 of the Code of Criminal Procedure, 1973, have been scrupulously followed by the respondents. The detenu being a notorious criminal, having been involved in many cases, including two murder cases, is being produced before various courts under warrants issued by such courts, which is quite in conformity with the legal provisions of law, provided under the Criminal Procedure Code. On a scrupulous scrutiny of the entire materials placed on record, we are not able to find any material to affix our seal of approval to the contention of the petitioner that the detenu was illegally taken into custody. Therefore, even on merits, this petition fails and the same deserves only to be dismissed.

18. Before parting with, we feel it apt to quote Rule 36 of the Chapter-II of Part-VI of the Bar Council of India Rules, which reads as follows:

"36. An advocate shall not solicit work or advertise, either directly or indirectly whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photograph to be published in connection with cases in which he has been engaged or concerned. His sign-board or name plate should be reasonable size. The sign-board or name plate or stationery should not indicate that he is or has been associated with any person or organisation or with any particular cause or matter or that he specialises in any particular type of work or that he has been a Judge or an Advocate General."

19. But, practically day in and day out we are able to see that the said Rule is being given a simple go-bye by some legal practitioners. When Rule 36 mandates that the sign-board or nameplate or stationery of the Advocate should not indicate that he is or has been associated with any person or organisation or with any particular cause or matter etc., it is rather paining to note that some members of the noble profession are printing their photographs in the huge hoardings of the political leaders, virtually at the feet of such political leaders, thus indicating that they are associated with such political leaders, further more amounting to publicity, which is prohibited under Rule 36. This violation of the mandatory provisions of the Bar Council of India Rules should be viewed seriously and the State Bar Councils should not allow such practices to be carried and should come out with strict action against such advocates, so as to maintain the dignity and decorum of the noble profession. Therefore, the Chairman, Bar Council of Tamil Nadu, is directed to take all steps to implement the Bar Council of India Rules strictly, in their true letter and spirit, so as to uphold the dignity and decorum of the noble profession of advocacy. For all the above reasons, this Habeas Corpus petition is dismissed.

Rao

1.The Chief Secretary to the Government of Tamil Nadu,

Fort St.George,

Chennai-600009.

2.The Superintendent of Police,

'Q' Branch,

No.73, Natesan Salai,

Chennai-600004.

3.The Director General of Prisons,

Chennai-600008.

4.The Superintendent of Central Prison,

Trichy

5.The Superintendent of Police,

Korapet, Orissa State

6.The Chairman,

Bar Council of Tamil Nadu,

Chennai 104

Hon’ble Mrs.Justice. Prabha Sridevan, Judge of the High Court of Madras attains superannuation today.

2010-08-08T12:16:00.003+05:30

Hon’ble Mrs.Justice. Prabha Sridevan, Judge of the High Court of Madras…

I could recall her majestic image in stiff cotton saris in late 80’s when she was a practising lawyer in our next door chamber number 120. I didn’t find any slight change in her attire when I saw her last Friday in the farewell meeting also. Such a dynamic personality and very straight forward judge who have given many revolutionary judgments including calculating the value of the ‘house wives’, which was recently applauded by the Hon’ble Apex court also.

At the eve of her superannuation it will be proper to rewind our memories on her.

Justice Prabha Sridevan, Judge of the High Court of Madras was elevated to the High Court Bench in March, 2000.

Is a member of the International Association of Women Judges. Is a Member of the Management Team of the Asia-Pacific Forum on Judicial Education on Equality Issues. The Forum is a body of 26 Superior Court Judges from the Asia-Pacific Region and from Canada along with 12 non-judges (activists). The Forum has a mandate to deliver gender equality education to the judiciary as community leaders and change-makers. Conducted a Workshop “Balancing the Balance” at Chennai in October,2003.

Attended the First South Asian Regional Judicial Colloquium on Access to Justice held at New Delhi in November, 2002 facilitated by the Commonwealth Human Rights Initiative (CHRI), International Centre for the Protection of Human Rights (INTERIGHTS) and the Office of the United Nations High Commissioner for Human Rights (UNHCHR). Also presented a Paper on “Access to Justice in the context of Poverty – Country Perspective”.

Presented a Paper “Women’s Access to Justice in the World” at the International Convention of Elected Women and Equal Opportunities organized at Turin, Italy organized in collaboration with the International Association of Women Judges and the European Women Judges, Lawyers and Jurists in March, 2004.

Attended the International Policy Dialogue on “Strengthening Human and Women’s Rights – Key to Realizing the Millennium Development Goals” conducted by the Development Policy Forum of Inwent (Internationale Weiterbildung and Entwicklung gGmbH), Capacity Building International, Germany as part of their International Policy Workshop held at Berlin in April, 2005 and presented a Paper on “Access to Equity and Justice”.

Participated in the IAWJ conference as a panelist held at Sydney on 3rd – 7th May 2006 and presented a paper on “Cultural and Lingual Diversity”.

Attended the Inter-Regional Conference held on 18th – 20th September 2006 at Brazil’s federal Capital, Brasilia. The theme of the Protocol Meeting is “Justice Systems and Human Rights”.

Also attended the Protocol Meeting for judicial Officers held on 8th- 15th January 2007 at Karachi conducted by the Asia Pacific Forum on Judicial Education on Equality Issues, SAKSHI.

Hon’ble Mr.Justice.S.Sivasubramaniyam, not with us now…

2010-07-31T18:11:00.001+05:30

Our beloved senior SSJ passed away on 24th July, 2010. He participated in the felicitation function for Hon’ble Mr.Justice.M.M.Sundresh on his elevation to the Madras High Court. Few pictures, taken in that function are published here, in fond memories of Hon’ble.Mr.Justice.S.Sivasubramaniyam, Formerly Judge, High Court, Madras. (in all the pictures he is sitting at right side)

'No incident of corruption should be tolerated' - A WARNING by Hon'ble The Chief Justice M.Y. Eqbal, Madras High Court.

2010-06-13T07:12:00.000+05:30

Justice M.Y. Eqbal was on Friday sworn in Chief Justice of the Madras High Court. At a brief ceremony at Raj Bhavan, Governor Surjit Singh Barnala administered the oath of office.

Justice P. Sadasivam, Supreme Court Judge, Judges of the Madras High Court, Chief Minister M. Karunanidhi, Deputy Chief Minister M.K. Stalin, State Ministers, office-bearers of various advocates' associations, family members of the new Chief Justice, including Mrs. I. Eqbal, and four Judges of the Jharkhand High Court — Justices Amerswar Sahay, Patel, Tiwari and Marathia — were among those present.

Earlier, Chief Secretary K.S. Sripathi read out the warrant of appointment of the new Chief Justice.

Mr. Justice Eqbal succeeds Justice H.L. Gokhale, who has been elevated as a Judge of the Supreme Court.

With the swearing-in of Mr. Justice Eqbal, the strength of the High Court has gone up to 52 against the sanctioned strength of 60.

Later, at a function at the High Court where he was accorded a formal welcome by the Bench and the Bar, Mr. Justice Eqbal said: “When people come to courts, they have gleaming hopes in their eyes that justice will be meted out to them in all cases. Therefore, judges and advocates should make all possible attempts to perform their pious obligation of delivering justice. They owe not just a legal responsibility but also a moral and ethical responsibility to ensure that no corrupt hands shall pollute the pure fountain of justice.”

Spelling out a few core areas of priorities for the Bench and the Bar, he said, “First, to be incorruptible and maintain the moral integrity of the institution.”

He made it clear that no incident of corruption should be tolerated and anyone prone to corruption will have no place in the system. The next area was to ensure access to justice for the weaker sections by giving equal opportunities to everyone to perform.

Development of justice delivery system by introducing alternative dispute resolution methods and their widespread use would make a great difference in the system of justice. The Bench and the Bar should do what was right for the legal system in the long term, not what was popular and politically expedient. He said, “Understand the aspirations of the people in the judiciary and paint a vision of the future they can share.”

Advocate-General P.S. Raman delivered the welcome address.

All India Bar Examination to practice law, 2009-2010 -Details

2010-06-03T08:18:00.000+05:30

The first All India Bar Examination, to be conducted on December 5, 2010 is intended to test an advocate’s ability to practice the profession of law in India. As this is the first time that this examination will be conducted, it will assess capabilities at a basic level, and is intended to set a minimum standard for admission to the practice of law; it addresses a candidate’s analytical abilities and basic knowledge of law.

Click here to see the presentation on the All India Bar Examination.

http://staging.barcouncilofindia.com/wp-content/uploads/2010/06/AIBE-Presentation.pdf

Please write to barexam@barcouncilofindia.org if you have any questions.

Law graduates, from 2009-2010 onwards, must take all-India Bar exam to practice as a lawyer.

2010-06-03T07:57:00.000+05:30

Fresh law graduates must take all-India Bar exam

Law graduates passing out from this year and intending to take up legal practice will have to pass an all-India Bar examination to be conducted by the Bar Council of India on December 5.

Every graduate after enrolment as lawyer in the respective State Bar Council will have to clear this examination, which will test skills and basic knowledge critical for a new entrant to the profession.

Eligibility check'

It is intended to check for eligibility, rather than expertise,? BCI Chairman and Solicitor-General Gopal Subramaniam said here on Wednesday, after launching the BCI's Vision Statement 2010-2012, which addresses the challenges before the legal profession and creating solutions.

The examination would be held once in six months and anyone failing in the first test could re-appear.

A legal consultancy firm, Rainmaker, will assist the BCI in conducting and managing the test in nine languages and in preparing the material for the test, for which it would collect Rs. 1,300 from each candidate.?

Mr. Subramaniam said: ?The Indian legal profession consists of approximately 11 lakh registered advocates, around 1,000 law schools and approximately 5 lakh law students. Every year, approximately 60,000 law graduates join the legal profession.?

Asked whether the BCI had taken permission from the Human Resource Development Ministry for conducting the test, Mr. Subramaniam said the council, as a statutory body, was not dependent on its approval.

On entry of foreign lawyers, Mr. Subramaniam said the BCI was opposed to it. Unlike in other countries, in India there was a standard of practice maintained by lawyers and they were not governed by earning money alone. ?The stage of allowing foreign lawyers has not yet come.? The BCI was open to a debate on this issue.

Bill on legal education

Talking to journalists, Law Minister Veerappa Moily said the Bill proposed by the HRD Ministry, touching on certain aspects of legal education, would be taken up at an inter-ministerial meeting and differences sorted out.

He said the legal profession was governed by the Advocates Act and no Bill would be possible without amending the Act.

BCI Vice-Chairman R. Dhanapal Raj and members of various State Bar Councils were present at the launch of the Vision Statement.

The Bar Council of India Chairman's Vision Statement 2010-2012

2010-06-03T07:51:00.002+05:30

BCI Chairman's Vision Statement 2010-2012

“Ensuring equality before the law and the supremacy of the rule of law in the Indian democracy.”

I am proud to present to you and to connect you to the legal profession in India. In the largest democracy in the world, the role of the legal profession cannot be underestimated as it is the law and the delivery of justice that serve as the conscience of a nation and the foundation of the society that India is, and will become, in the years to come.

In spite of the wear and tear and the erosion suffered during the passage of time, the legal fraternity in India continues to be an influential seat of society and the legal profession carries with it the identity of a noble and learned profession, which has produced great leaders for India (including during our freedom struggle). However, our profession finds itself at the crossroads today and it is the path that we choose that will surely influence the future of India as a true democracy.

On the one hand we face a prosperous future as a country with a growing economy and the aspirations of a billion Indians unleashed upon the world. On the other we see massive inequities, shortfalls in education/health/infrastructure, delivery of justice and various other ills moving at a similar pace. In such a scenario, the need for a stronger, more robust and ethically driven legal profession in India cannot be overemphasised.

The Indian legal profession today consists of approximately 11 lakh (1.1 million) registered advocates, around 1,000 law schools and approximately 5 lakh (0.5 million) law students across the country. Every year, approximately 60,000 law graduates join the legal profession in India. These broad estimates also contain within them a rapidly growing (and international quality) corporate legal sector and a nascent outsourced legal process services sector. One need only understand the size of the Indian legal profession to appreciate the important and immense nature of the task at hand.

In order for us to strengthen every single member and area of the profession, it is necessary for us to realistically introspect to identify the various challenges that we collectively face today. The issues that plague the profession today are not unique or specific to only one part but are systemic issues that need to be dealt with keeping in mind the connect between the different parts of the profession.

These issues broadly are:

Inadequate quality of legal education and infrastructure
Lack of relevant skills training to meet with the ever-changing demands of the modern world
Lack of clear data on the profession for assessment and efficient distribution of resources
Low absorption of technology and lack of connect with different parts of a modern economy
Lack of entry point and continuous assessment mechanisms to ensure the continuous growth and improvement of the legal profession
Lack of awareness and ideation about the heritage, tradition, and culture of the legal profession, and levels of excellence within the legal profession, and a consequent lack of motivation to fulfil the highest aspirations within the profession
Lack of the ability to ensure access to basic human rights to the poor and marginalised sections of society, and the realisation of the vision of the Indian lawyer as an effective social engineer
While each of the above problems can be seen in isolation, it is their cumulative effect that has a negative bearing on the identity of the entire Indian legal profession. Irrespective of the success any part of the profession may achieve, it will always carry along with it the positives and negatives of our collective identity and hence every part of the profession is a stakeholder in this identity.

It is in this light that the Bar Council of India is seeking to connect, create and implement large-scale solutions to strengthen the Indian lawyer and the Indian legal profession by March 31, 2012.

These solutions will be aimed at all aspects of the profession, but the highest priority would be on the following areas:

Raising the quality of the bar through entry-level assessment and continuous education and training
Providing access to knowledge and information resources (embracing a multi-disciplinary approach) to all parts of the legal profession
Creating a database of lawyers, law schools, academia and law students across the country so that resources can be efficiently deployed and common platforms can be created
Creating clear quality standards for legal education and a common entry level standard for entering law schools across the country
Creating a system of access to hardware and software resources, as well as training on the use of technology across the profession
Establishing a strong system of connect between the legal profession and the weakest sections of society, so as to provide effective legal aid, and the fulfilment of the profession’s role as an agent of social justice and equity
Improving interaction between the bar and the judiciary so as to establish a common platform to collectively address problems facing justice delivery in India
Identifying clear values and standards so that the legal profession is fearlessly independent and of robust character
Through a combination of the above, raising the confidence and skills of the constituents of the legal profession, thereby improving the identity of the profession as a whole
As a statutory body having access to the entire legal profession (including the senior leadership of law officers in India) the Bar Council of India will reach out to all parts of the legal profession and create long-term solutions in each of these areas. The Bar Council of India also undertakes to conduct itself in a transparent and approachable manner so as to reflect the thoughts and aspirations of the Indian legal profession.

We look forward to the support of the entire legal profession in our collective endeavour to create a modern legal profession that does justice to its heritage, aspirations, obligations and competence.

Gopal Subramanium, Bar Council of India

Chairman

TN +2 Exam Results 2010-Tamilnadu 12th Result-Tamil Nadu XII Result 2010-TamilNadu 12th result 2010- +2 Result 2010-TN HSC results 2010,

2010-05-14T08:17:00.001+05:30

Government of Tamil Nadu
Directorate of Government Examinations

Examination Results

|| Plus 2 Examination Results Expected on 14th May 2010 at 9.30 A.M. ||

The much awaited plus 2 results of Tamilnadu board exams are going to be announced today, i.e. 14th, May, 2010 at 9.30am. The results can be seen from the following websites from 9.30 am onwards. All the best to the students and parents:

Websites on which Plus Two results 2010 of TamilNadu Board Exam will be available:

* http://www.tnresults.nic.in/
* http://www.pallikalvi.in/
* http://www.squarebrothers.com/
* http://results.sify.com/
* http://indiaresults.com/
* http://www.dge1.tn.nic.in/
* http://www.dge2.tn.nic.in/
* http://www.dge3.tn.nic.in/
* http://www.tngdc.in/
* http://www.collegesintamilnadu.com/
* http://www.classontheweb.com/
* http://www.schools9.com/
* http://www.chennaivision.com/
* http://www.mygaruda.com/
* http://www.tnagar.com/
* http://www.indiacollegefinder.com/
* http://www.chennaionline.com/
* http://www.nakkeeran.com/
* http://www.getyourscore.in/
* http://www.examresults.net/
* http://results.webdunia.com/
* http://www.jayanews.in/
* http://www.findchennai.com/

(copy and paste the above urls in your browser)

TN +2 Exam Results 2010-Tamilnadu 12th Result-Tamil Nadu XII Result 2010-TamilNadu 12th result 2010- 2 Result 2010-TN HSC results 2010

2010-05-13T06:11:00.000+05:30

The much awaited plus 2 results of Tamilnadu board exams are going to be announced tomorrow, i.e. 14th, May, 2010. The results can be seen from the following websites from 9.30 am onwards. All the best to the students and parents:

1. http://www.pallikalvi.in

2. http://tnresults.nic.in

3. http://dge2.tn.nic.in

(copy and paste the above urls in your browser)

TN +2 Exam Results 2010-Tamilnadu 12th Result-Tamil Nadu XII Result 2010-TamilNadu 12th result 2010- 2 Result 2010-TN HSC results 2010

2010-05-12T06:27:00.000+05:30

Tamil Nadu School Education Department will be announced the examination result of 12th class on this week.image thumb39 TN +2 Exam Results 2010 Tamilnadu 12th Result Tamil Nadu XII Result 2010 TamilNadu 12th result 2010 2 Result 2010 TN HSC results 2010

The Directorate Government of Tamilnadu conducting the Examination of XII Plus Two High Secondary and SSLC (State Board Level). Most of the students are awaiting for the results of 12th class, But It currently not to be declared.

Here Government of Tamil Nadu, Directorate of Government Examinations publishing official websites List:

1. http://www.pallikalvi.in

2. http://tnresults.nic.in

3. http://dge2.tn.nic.in

TamilNadu 12th result 2010 to be declared soon at official site of the education department. The results are for the 12th class or also called Higher Secondary class (HSC). The results may be announced any time soon. Also in the waiting are results for the 10th class.
TamilNadu 12th exams are published on the site of Directorate of Government Examinations for the students studying in the schools affiliated to it. The results in this exams are critical for higher studies. Hence the department is trying to publish the results ASAP. Last year the results were announced on May 14.

High Court of Madras, Summer Vacation Sittings - 2010.

2010-04-30T06:08:00.000+05:30

NOTIFICATION NO.102 / 2010

~~~~~~~~~~~~~~~~~~~~~~~~~~~

SUMMER VACATION 2010

---------------------

ARRANGEMENTS FOR THE PRINCIPAL SEAT AT MADRAS

<><><><><><><><><><><><><><><><><><><><><><><>

Sub: High Court, Madras � Summer Vacation 2010 -

Arrangements for the Principal Seat at Madras � Notified.

******
It is hereby notified that the Summer Vacation for the year 2010, for

the High Court, Madras will be from Saturday, the 1st May 2010 to

Sunday, the 6th June 2010 (both days inclusive).

The period of Summer Vacation for this year is split into three parts

for the purpose of vacation Court sitting arrangements, as follows :-

<><><><><><><><><><><><><><><><><><><><><><><><><><><>

I PART : Saturday, the 1st May 2010 to

Sunday, the 16th May 2010

<><><><><><><><><><><><><><><><><><><><><><><><><><><>

II PART : Monday, the 17th May 2010 to

Sunday, the 30th May 2010

<><><><><><><><><><><><><><><><><><><><><><><><><><><>

III PART : Monday, the 31st May 2010 to

Sunday, the 6th June 2010
<><><><><><><><><><><><><><><><><><><><><><><><><><><>
I � PART (May 1st to May 16th)

==============================

The Hon'ble The Acting Chief Justice, Hon'ble Thiru Justice

K.Venkataraman, Hon'ble Thiru Justice T.S. Sivagnanam and Hon'ble

Thiru Justice C.S. Karnan, will be the Vacation Judges for the I part of the

Vacation. The Hon'ble The Acting Chief Justice, and Hon'ble

Thiru Justice T.S. Sivagnanam, will first sit in a Division Bench at

10.30 A.M on the dates mentioned below unless & otherwise notified for

other days also, for the disposal of very urgent Bench matters.

After Division Bench work, Hon'ble Thiru Justice T.S. Sivagnanam will sit

single on the said days and if necessary,for other days also, to hear &

dispose of urgent matters. Hon'ble Thiru Justice K.Venkataraman and

Hon'ble Thiru Justice C.S.Karnan, will sit single at 10.30 A.M on the dates

mentioned below unless & otherwise notified for other days also, for the

disposal of very urgent matters. The details of work allotment are as

follows:-

---------------------------------------------------------------------------

Hon'ble Thiru Justice : Writ Petitions - General Misc.,

K. Venkataraman Tax, Motor Vehicles, Motor Vehicles

Tax, Education, Mines & Minerals,

Industries, EB, Land Acquisition and

Local Authority.

----------------------------------------------------------------------------

Hon'ble Thiru Justice : After Division Bench Work -

T.S. Sivagnanam Writ Petitions - Labour,

Service,

Customs & Central Excise, Cinema,

Prohibition & Excise, Forest, ULC,

Land Reforms, Land Tenancy, APM,

Co-operative Society and Appellate

Side & Original Side matters.

----------------------------------------------------------------------------

Hon'ble Thiru Justice : All Single Bench Crl. matters

C.S. Karnan (Bail, Anticipatory Bail, Crl.O.P

(u/s. 482 of Cr.P.C.), Crl. Appeal and

Crl. R.C. Admission).

----------------------------------------------------------------------------

II PART (May 17th to May 30th)

==============================

Hon'ble Thiru Justice V. Dhanapalan and Hon'ble Thiru Justice

D. Hariparanthaman and Hon'ble Thiru Justice N. Kirubakaran will be the

Vacation Judges for the II part of the Vacation. Hon'ble Thiru Justice

V. Dhanapalan and Hon'ble Thiru Justice D. Hariparanthaman will first sit

in a Division Bench at 10.30 A.M on the dates mentioned below unless

and otherwise notified for other days also, for the disposal of very urgent

Bench matters. After Division Bench work, Their Lordships will sit single

on the said days and if necessary, for other days also, to hear and

dispose of urgent matters. Hon'ble Thiru Justice N. Kirubakaran, will sit

single at 10.30 A.M on the dates mentioned below unless and otherwise

notified for other days also, for the disposal of very urgent matters. The

details of work allotment are as follows:-

----------------------------------------------------------------------------

Hon'ble Thiru Justice : After Division Bench Work -

V. Dhanapalan Writ Petitions - General Misc.,

Tax, Motor Vehicles, Motor Vehicles

Tax, Education, Mines & Minerals,

Industries, EB, Land Acquisition and

Local Authority.

----------------------------------------------------------------------------

Hon'ble Thiru Justice : After Division Bench Work -

D. Hariparanthaman Writ Petitions - Labour, Service,

Customs & Central Excise, Cinema,

Prohibition & Excise, Forest, ULC, Land

Reforms, Land Tenancy, APM,

Co-operative Society and Appellate Side

& Original Side matters.

----------------------------------------------------------------------------

Hon'ble Thiru Justice : All Single Bench Crl. matters

N. Kirubakaran (Bail, Anticipatory Bail, Crl.O.P

(u/s. 482 of Cr.P.C.), Crl. Appeal and

Crl. R.C. Admission).

----------------------------------------------------------------------------

III -_PART (May 31st to June 06th)

==================================

Hon'ble Thiru Justice N. Paul Vasanthakumar and Hon'ble Thiru

Justice C.T. Selvam and Hon'ble Thiru Justice M.M. Sundresh, will be the

Vacation Judges for the III part of the Vacation. Hon'ble Thiru

Justice N. Paul Vasanthakumar and Hon'ble Thiru Justice M.M. Sundresh,

will first sit in a Division Bench at 10.30 A.M on the date mentioned

below unless and otherwise notified for other days also, for the disposal of

very urgent Bench matters. After Division Bench work, Their Lordships

will sit single on the said day and if necessary, for other days also, to

hear and dispose of urgent matters. Hon'ble Thiru Justice C.T. Selvam,

will sit single at 10.30 A.M on the dates mentioned below unless and

otherwise notified for other days also, for the disposal of very urgent

matters. The details of work allotment are as follows:-

----------------------------------------------------------------------------

Hon'ble Thiru Justice : After Division Bench Work -

N. Paul Vasanthakumar Writ Petitions - General Misc.,

Tax, Motor Vehicles, Motor Vehicles

Tax, Education, Mines & Minerals,

Industries, EB, Land Acquisition and

Local Authority.

----------------------------------------------------------------------------

Hon'ble Thiru Justice : All Single Bench Crl. matters

C.T. Selvam (Bail, Anticipatory Bail, Crl.O.P

(u/s. 482 of Cr.P.C.), Crl. Appeal and

Crl. R.C. Admission).

----------------------------------------------------------------------------

Hon'ble Thiru Justice : After Division Bench Work -

M.M. Sundresh Writ Petitions - Labour, Service,

Customs & Central Excise, Cinema,

Prohibition & Excise, Forest, ULC,

Land Reforms, Land Tenancy, APM,

Co-operative Society and Appellate

Side & Original Side matters.

----------------------------------------------------------------------------

(1) Tmt. M.Santhanam, Deputy Registrar (Accounts), Thiru

K. Govindaraj, Assistant Registrar (C.S. V) and Tmt. A.Kumutha,

Assistant Registrar (Crl. Side); (2) Thiru S.Mahesh Babu, Deputy Registrar

(Judicial), Tmt. N. Saraswathi, Assistant Registrar (C.S. III) and Thiru

M.G. Pachaiyapphen, Assistant Registrar (O.S. II); and (3) Tmt.

K.Indumathi, Deputy Registrar, (A.S.), Thiru S.Kalyanasundaram,

Assistant Registrar (A.S.) and Tmt. M.Jayashree, Assistant Registrar

(Admn.I), will be the Vacation Officers for the corresponding sitting days

of the Hon'ble Judges during I Part, II Part and III Part of the vacation,

respectively.

No plaint or appeal or other proceedings will be received during the

said period unless it is accompanied by an application showing the

urgency for an order to receive.

In any case of great urgency, applications may be made by

delivering to the Vacation Officers with a request to transmit the

necessary papers to the Hon'ble Vacation Judge concerned and the

Vacation Officers shall, if they consider the case as one of the sufficient

urgency, arrange for the transmission of the necessary papers and the

case will be heard according to the directions of the Hon'ble Vacation

Judge concerned either at the Court or at the Hon'ble Judge's residence

on the next day at 10.30 A.M. unless it is a holiday for the High Court, or

such other convenient time which will be communicated to the

practitioners.

No application should be presented at the residence of the Hon'ble

Vacation Judges under any circumstances and no lunch motion should be

entertained during the Summer Vacation and that in Bail Petitions, lower

court bail order should be enclosed along with the petitions and that this is

subject to the permission, if granted, by the concerned Judge, who should

be contacted only through the Vacation Officer.

The Hon'ble Vacation Judges will sit in the Vacation Court from

10.30 A.M to 4.45 P.M.

The application for the issue of certified or carbon copies of the

orders and the Process fees for the issue of Notice etc., should be

presented to the Vacation Officer concerned and after obtaining the orders

of the Vacation Officer, may be filed in the Office.

Notice of any application of urgent matters will have to be given

along with papers to the Vacation Officers before 1.30 P.M on the

following dates:

FILING DAYS SITTING DAYS

----------- ------------

---------------------------------------------------------------------------

03.05.2010 (Monday) 05.05.2010 (Wednesday)

04.05.2010 (Tuesday) 06.05.2010 (Thursday)

----------------------------------------------------------------------------

10.05.2010 (Monday) 12.05.2010 (Wednesday)

11.05.2010 (Tuesday) 13.05.2010 (Thursday)

----------------------------------------------------------------------------

17.05.2010 (Monday) 19.05.2010 (Wednesday)

18.05.2010 (Tuesday) 20.05.2010 (Thursday)

----------------------------------------------------------------------------

24.05.2010 (Monday) 26.05.2010 (Wednesday)

25.05.2010 (Tuesday) 27.05.2010 (Thursday)

----------------------------------------------------------------------------

31.05.2010 (Monday) 02.06.2010 (Wednesday)

01.06.2010 (Tuesday) 03.06.2010 (Thursday)
----------------------------------------------------------------------------
The Registry will work from 10.00 A.M to 4.45 P.M on all days

during Summer Vacation 2010, except on the Court sitting days on which

days the working hours will be from 10.00 A.M to 5.45 P.M or till the

Court work is over, whichever is later.

Notification regarding the Summer Vacation 2010 for the

Madurai Bench of Madras High Court will be issued separately by the

Registrar (Admn.) of Madurai Bench.

/ By Order /

HIGH COURT, MADRAS G.CHOCKALINGAM

DATED : 29.04.2010 REGISTRAR GENERAL (I/C)

........L.......T.......T.....T....T.....T.......T...............T...J

An Invitation.

2010-03-30T18:50:00.000+05:30

The President and Members of the Bar Association, Erode

Cordially invite you to the function to

felicitate

Thiru E.V. VISWANATHAN,

Advocate, Erode

Thiru Ma. SUBRAMANIYAN,

Advocate, Erode

Thiru K. VALLABHDAS,

Advocate, Erode

Thiru V.K. MUTHUSAMY,

Advocate, Erode

On the occasion of the Golden Jubilee year of their Legal Practice

On

10. 04.2010 at 10.30 am

At

Kongu Kalai Arangam

Sampath Nagar,

Erode

Hon’ble Thiru Justice P. SATHASIVAM,

Judge, Supreme Court of India

has consented to be the

CHIEF GUEST

Hon’ble Thiru Justice H.L. GOKHALE,

Chief Justice, High Court, Madras

has consented to preside over the function

In the presence of

Hon’ble Thiru Justice K.N. BASHA,

Judge, High Court, Madras,

Hon’ble Thiru Justice M.M. SUNDRESH,

Judge, High Court, Madras,

and

Hon’ble Selvi. Justice K.B.K. VASUKI,

Judge, High Court, Madras

Thiru L.S. Murugesan
President

Thiru S.Guruswamy
Secretary

Bar Association,

Erode

Programme

Prayer

Welcome Address : Thiru. L.S. MURUGESAN,

President,

Bar Association, Erode

Felicitations : Members, Bar Association, Erode

Felicitation by

Chief Guest: Hon’ble Thiru Justice P. SATHASIVAM,

Judge, Supreme Court of India

Presidential address: Hon’ble Thiru Justice H.L. GOKHALE,

Chief Justice, High Court, Madras

Special address: Hon’ble Thiru Justice K.N. BASHA,

Judge, High Court, Madras

Hon’ble Thiru Justice M.M. SUNDRESH,

Judge, High Court, Madras

Hon’ble Selvi Justice K.B.K. VASUKI,

Judge, High Court, Madras

Felicitation : Thiru K. JAYASANKARAN,

Principal District Judge, Erode

Acceptance speech : Thiru E.V. VISWANATHAN

Thiru Ma. SUBRAMANIAM

Thiru K. VALLABHDAS

Thiru V.K. MUTHUSAMY

Golden Jubilee Advocates

Vote of Thanks: Thiru S. GURUSAMY,

Secretary,

Bar Association, Erode

National Anthem

A new notification by Madras HC on Law Firms.

2010-03-25T06:20:00.000+05:30

NOTIFICATION NO. 68/2010
~~~~~~~~~~~~~~~~~~~~~~~~

All the advocates are required to strictly adhere with
Rule 5, 6 and Rule 10 of the Rules (1969) as given below,
framed under Section 34(1) of the Advocates Act, 1961,
relating to Law Firms, while filling up vakalats and are
requested to make necessary changes in the name of their
partnerships.

Rule 5 : The acceptance of an appointment on behalf
of a firm or partnership of advocates shall be
indicated by a partner affixing his own signature as a
partner on behalf of the firm or partnership of
advocates.

Rule 6 : An advocate at the time of acceptance of his
appointment shall also endorse on it his address which
address shall be regarded as one for service within
the meaning of Rule 5 of Order 3, the Code of Civil
Procedure, 1908.

Provided that where more than one advocate accepts the
appointment, it shall be sufficient for one of them to endorse
his address, which address shall be regarded as one for
service within the meaning of Rule 5 of Order 3, Code of Civil
Procedure, 1908.

.....

Rule 10 : (a) The appointment of a firm or partnership of
advocates may be accepted by any partner on behalf of the
firm.

(b) No such firm or partnership shall be entitled to appear,
act or plead in any Court unless all the partners thereof are
entitled to appear, act or plead in such Court.

(c) The name of the firm or partnership may contain the names
of the persons who were or are members of the partnership but
of no others.

(d) The words "and company" shall not be affixed to the name
of any such partnership or firm.

(e) The names of all the members of the firm shall be recorded
with the Registrar of High Court and/or the District Judge, as
the case may be, and the State Bar Council, and the names of
all the partners shall also be set out in all professional
communications issued by the partners or the firm.

(f) the firm of advocates shall notify to the Registrar of the
High Court and/or the District Judge, as the case may be, and
the State Bar Council, any change in the composition of the
firm or the fact of its dissolution as soon as may be from the
date on which such change occurs or its dissolution takes
place.

(g) Every partner of the firm of advocates shall be bound to
disclose the names of all the partners of the firm whenever
called upon to do so by the Registrar of the High Court, the
District Judge, the State Bar Council, any Court or any party
for or against whom the firm or any partner thereof has filed
the appointment or memorandum of appearance.

(h) In every case where a partner of a firm of advocates signs
any document of writing on behalf of the firm he shall do so
in the name of the partnership and shall authenticate the same
by affixing his own signature as partners.

(i) Neither the firm of advocates nor any partner thereof
shall advise a party or appear, act or plead on behalf of a
party in any matter or proceedings where the opposite party is
represented by any other partner of the firm or by the firm
itself.

// By Order //

HIGH COURT, MADRAS : S.VIMALA
DATED : 24.03.2010 : REGISTRAR GENERAL

Spouse’s silence may amount to cruelty - SC

2010-02-13T09:05:00.000+05:30

Spouse’s silence may amount to cruelty, says apex court Silence is golden. But married couples shouldn’t take it literally. For, the Supreme Court has said silence of a partner could amount to cruelty, which, under the Hindu Marriage Act, is a ground for divorce.
Section 13 of the Act says a person can move a divorce petition if he or she has been treated with cruelty by the spouse or has been deserted for a continuous period of not less than two years.
Delivering its judgement in a matrimonial case, a bench comprising Justices P Sathasivam and Ashok Kumar Ganguly said: “At times, it (cruelty) may be just an attitude or an approach. Silence in some situations may amount to cruelty. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed.”
That is why, the court said, the Act deliberately did not define ‘cruelty’. “In a matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed cruel,” it said.
Violence may be a predominant form of cruelty in the Indian context, but it could be as bad in other forms, even the indignant silence of a partner, said Justice Ganguly writing the judgment for the bench. This judgment came in a case where the husband after forcing the wife to live separately because of his illtreatment moved the court for divorce saying she had treated him with cruelty by deserting him. Strangely, the Mandi district magistrate granted divorce terming the desertion as cruelty on her part.
But the Himachal Pradesh High Court saw through the design by noticing that the couple’s daughter was unambiguous in her statement that her father used to beat her mother and that was the reason she left her matrimonial home. Dismissing husband Ravi Kumar’s appeal against the HC judgment, the bench said: “The child has clearly stated the cruelty of husband towards his wife. Therefore, there is sufficient reason for the wife to stay apart. Under such circumstances, one cannot say the wife is guilty of either cruelty or desertion.”
It said whether a husband or wife was cruel to the other partner had always to be ascertained and judged taking into account the facts and circumstances of a given case and not by any pre-determined formula.

Offence under section 138 of the NI Act is compoundable under sec.147 of the said Act.

2010-01-19T17:43:00.002+05:30

whether an offence of cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881, could be compounded under Section 147 of the said Act read with Section 320 Cr.P.C?

The Hon'ble Supreme Court held, it is compoundable.

To read full judgment use the following link:

http://docs.google.com/Doc?docid=0AVD7MZ_yKj7ZZGM4czQya3BfNDFnZDd3cnpmcg&hl=en

Cheque dishonour case - power agent can depose on behalf of complainant - SC.

2010-01-02T12:50:00.000+05:30

The Hon'ble Supreme Court held that in a private complaint filed by a power of attorney of the complainant, the power agent can be examined if he knows the facts of the transactions between the parties.

To read the complete judgment go to:-

https://docs.google.com/Doc?docid=0AVD7MZ_yKj7ZZGM4czQya3BfMzlnN3NtbjVmcg&hl=en

An important judgment by SC on Sec.138 of the Negotiable Instruments Act.

2010-01-02T12:40:00.000+05:30

The Hon'ble Supreme Court rules,

"Where an incorporeal body is the payee and the employee who represents such incorporeal body in the complaint is a public servant, he being the de facto complainant, clause (a) of the proviso to section 200 of the Code will be attracted and consequently, the Magistrate need not examine the complainant and the witnesses".

To read the complete judgment go to:-

https://docs.google.com/Doc?docid=0AVD7MZ_yKj7ZZGM4czQya3BfMzhnMmZoN2Zncg&hl=en