Ø  Limitation is an important aspect for initiating proceedings under Section 138 or 141 of Negotiable Instruments Act. The legislature has made the timelines quite strict and Courts in India have also construed the timelines very strictly.

ü  Once a cheque is presented for encashment, and upon such presentation of the cheque gets dishonoured[1] the payee (in whose favour the cheque is drawn) have to send a Legal notice within 30 days from the date of return of the cheque.

ü  The Payee must ask the drawer of the cheque to pay the amount within 15 days.

ü  Upon the expiry of the 15 days from the service of the Legal notice, the payee has to file a complaint case before the concerned magistrate within 30 days of the said expiry.

ü  Once t Complaint case is filed in the Court of Magistrate, the pre-summoning evidence of the Complainant is done, and post which the court process (summons)[2] is issued to the Accused. The accused, upon appearing in Court on the date fixed for hearing, is asked whether he pleads guilty or not and the trial is said to have commenced at this point.

Ø  Note: In case the payee misses any of the stipulated timelines, the Cheque can be presented to the bank any number of time (if the cheque is within the validity period i.e. 3 months) and upon each time of dishonouring of the cheque, fresh cause of action arises.

Ø  Note: Nothing in the Negotiable Instrument Act precludes the payee from filing a separate civil suit for recovery of the amount due for which the limitation period is 3 years from the cause of action.

Recent Amendment to pay compensation pending trial:

Section 143A: Under this Section, the Court trying an offence under Section 138 may order the drawer of the cheque to pay interim compensation to the complainant which shall not exceed 20% of the amount of the cheque.

Section 148- An appeal by the drawer against the conviction under Section 138, the Appellate Court may order the appellant to deposit such sum which shall be minimum of 20% of the fine or compensation awarded by the trial court.

Ø  The interim compensation must be paid within 60 days from the date of the order or within such further period within such period not exceeding 30 days as may be directed by the Court.

ASLAM BABALAL DESAI v. STATE OF MAHARASHTRA

(1992)

In general, grounds for bail cancellation are interference or attempt to interfere with the due course of administration of Justice, or evasion or attempt to evade the course of justice or abuse of the liberty granted to him. When the accused is granted bail under Section 167(2) for the prosecution being at default for not completing the investigation within 60 days after the defect being cured by chargesheet being filed, the bail may be deemed to be cancelled on the ground that reasonable grounds do exist for the accused committing a non-bailable offence. It is necessary for him to be arrested and taken into custody. Strong grounds are necessary to cancel the bail and are to be made out in the charge-sheet. 

DEEPAK KUMAR SAH v. THE STATE OF BIHAR

(2015)

The petitioner was in jail for 9 months. The complainant had became pregnant after having consensual physical relations with him. Hence, the petitioner is liable to maintain the lady and at the time of delivery needed to be with her. Hence, Patna High Court granted bail to him but only on the condition that he had to furnish a bail bond of Rs. 10,000/- with two sureties of the like amount each to the satisfaction of the Learned Additional Chief Judicial Magistrate, Naugachia.

NITYANAND RAI v. STATE OF BIHAR

(2005)

The Bihar High Court has held for the bail to be cancelled, the grounds must be those which arise after the bail is granted. The circumstances of the ground needs to mandatory refer the the conduct of the accused while he is on bail.

ANKIT SHARMA v. STATE OF N.C.T OF DELHI AND ANR

(2014)

In this case, the Delhi High Court has distinguished between the two aspects of bail- cancellation of bail and rejection of bail. The Court has held that the grounds of both i.e., cancellation and rejection of bail are two different things. The circumstances of both are quite different. Hence, the Court's approach has to be distinct while dealing with the two cases.

While dealing with the hearing of bail application, the focus of the Court is on the violation of conditions of bail. On the other hand, while dealing with cancellation of bail, the Court also focuses on whether actual violation has taken place or not.

GURBAKSH SINGH SIBBIA v. STATE OF PUNJAB

1980 AIR 1632

The Apex Court has held that for granting anticipatory bail, the authorities are at a discretion to do so. This power to grant anticipatory bail has to be exercised objectively and open to correction by the higher courts. The power conferred under Section 438 is an extraordinary one. The power to grant anticipatory bail should be exercised with due care and circumspection.

The Court consequently held that

"The question as regards the interpretation of Section 438 Cr. P.C. did not at all arise in that case, and that the said case was mainly concerned with Rule 184 of the Defence and Internal Security of India Rules, 1971, and whether S. 438 applied in such a situation."

SURESH CHAND v. STATE OF RAJASTHAN 

2001 (2) RLR 757

The Court held that after the first bail application was rejected under Section 438 CrPC by the Delhi High Court, the second such application is not maintainable. The power to grant anticipatory bail does not flow from Article 21 of the Constitution of India. It is merely conferred by the statute. The Court further observed that the Law Commission's intention was to prevent the provisions of anticipatory bail from being abused at the instance of unscrupulous petitioners and this extraordinary remedy has to be restored to only in exceptional cases.

 K.L. VERMA v. STATE AND ANOTHER

(1996) 7 SCALE 20

The Court made observations on the duration of granting anticipatory bail. It held that

" Till the bail application is disposed of one way or the other the court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher court, if they so desire. "

RASIKLAL v. KISHORE KHANCHAND WADHWANI

(2009)

The Court held that in case of bailable offences, the arrested person's right to claim bail is absolute and indefeasible. If the bail papers in name of the accused person are prepared, the police official or Court is bound to release him from their custody or detention. The only choice available to them is demanding security in surety and if the accused is willing to abide by reasonable conditions which may be imposed on him. It held that

Order of granting bail is judicial act and not ministerial act and thus reasons must form the basis for any order on bail application.

BALCHAND JAIN v. STATE OF MADHYA PRADESH

1977 AIR 366

The Court, in this case, decided upon the object of section 438. It held that the underlying object of section 438 is that the moment a person is arrested, if he has already obtained an order from the Sessions Judge or the High Court, he would be released immediately without having to undergo the rigorous of jail even for a few days which would necessarily be taken up if he has to apply for bail after arrest.

SALAUDDIN ABDULSAMAD SHAIKH v. THE STATE OF MAHARASHTRA

(1995)

The Court held that anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be by-passed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular Court for bail. That is the correct procedure to follow because it must be realized that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender.

SANTOSH KUMAR MANDAL v. STATE

(2016)

The Court reiterated on bail under POCSO Act. It held that the offence which is punishable under Section 12 of the Prevention of Children from Sexual offences Act is a non-bailable offence. Thus, it the accused cannot claim bail under that section exercising his right to claim bail.

ASHIM KUMAR VS. STATE OF WEST BENGAL

AIR 1972 SC 2561

Supreme Court laid down that the mere fact that where the concerned person was actually in jail custody at the time when an order of detention was passed against him and was not likely to be released for a fair length of time, it would be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in prejudicial activities.

H.S. PANNU v. GOVT. OF N.C.T. OF DELHI AND ANR

(2007)

The Terrorist and Disruptive Activities (Prevention) Act, 1987 was in question. The designated court did not withstand anything contained to contrary in the CrPC it obliged by following a different procedure to satisfy itself that there existed reasonable grounds of the accused not being guilty of the offence and was unlikely to commit similar offences, if enlarged on bail.

ANIL MAHAJAN v. COMMISSIONER OF CUSTOMS & ANR

2000 CriLJ 2094

The Court observed that if the legislature wanted the Courts to treat economic offences differently from other offences in the matter of granting bail, they could have specified some special provisions which would put limitations on granting bail. But in the absence of such special provisions, the  general principles governing the grant would apply on the cases involving economic offences.

V.S. NORTI AND ORS. v. STATE OF KARNATAKA

ILR 1989 KAR 943

The Karnataka High Court held that "it cannot be said that the principle laid down by the Supreme Court that in a murder case when the investigation is still incomplete anticipatory bail should not be granted to be a principle laid down as applicable to the facts in the case. It cannot also be said that the principle laid down is governed or qualified by the particular facts in the said case. The Supreme Court stated the principle as a rule of law, applied it to the case before it and acted on it. It clearly held that the principle governs a case in which the applicant seeking anticipatory bail is accused of the offence of murder and in which the investigation is incomplete."

यह वीडियो 'हमारा कानून' परियोजना का हिस्सा है, जो सरल भाषा में कुछ मुख्य कानूनों की व्याख्या करता है। इसका उद्देश्य लोगों के लिए कानूनों को सुलभ बनाना और कानूनी जागरूकता पैदा करना है। यह वीडियो भारत में सिविल कानून में अपील पर कानून की जानकारी देता है।

1.Smt. Asha Baldwa v. Ram Gopal

This is one of the landmark judgments in Section 138. The petitioner had filed a petition under Section 482, CrPC to quash the proceedings instituted against him  for committing an offence under section 138. He was alleged to have handed over the dishonored cheque to the respondent . She consented to such giving of the cheque. Hence, she is responsible for the consequences of giving the cheque.

The contention of the petitioner was that in accordance with Section 141(2) of the Negotiable Instruments Act, 1881, the allegations can be made against the Company only or its Partners or Directors only when the offence was committed with the consent or connivance or, is attributable to, any neglect on the part of, any director, manager, secretary or partners.

The Court held that the aim is that the person who promises to pay abides by his promise. Section 139 provides that it shall be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of NI Act for the discharge, in whole or in part, of any debt or other liability.

Canara Bank vs Canara Sales Corporation & Ors.

The Supreme Court looked into the matter of cheque being presented for encashment and containing forged signatures.

It held that in cases where a cheque is presented for encashment but has forged signatures on it, the bank is freed from is legal liability of making any sort of payment against such cheque. If the bank made any payments in favor of such cheques, it would be concluded that the bank has acted anti-law by debiting the customer with amounts of the cheque.

Dalmia Cement Ltd. V. Galaxy Traders & Agencies Ltd.

Criminal Appeal No.957 of 2000

In this case the Hon’ble Supreme Court of India referred to the object of section 138 of Negotiable Instrument Act. The court observed that when the act was enacted, section 138 was incorporated with a specified object of making a special provision by incorporating a strict liability so far as the cheque as negotiable instrument was concerned.

Kishan Rao v. Shankargouda

The Supreme Court has reiterated on the scope of revisional jurisdiction of a High Court.

The Court held that the High Court is not to interfere with any of the Magistrate's order unless it seems to be completely unreasonable or there is no consideration of relevant material. Also, the Magistrate's order cannot be set aside on the mere ground that no other view on the issue is possible.

Jayalakshmi Nataraj v. Jeena & Co. (1996)

In this case, the Court adjudicated upon a Managing Director's liability under Section 138 of the Negotiable Instrument Act of 1881. It held that even though the Managing Director does not administer the day to day activities of the company, he/she can still be held guilty irrespective of the fact that he/she was unaware of the affairs.

Modi Cements Limited v. Kuchil Kumar Nandi (1998) 3 SCC 249

A three Judge bench of the Supreme Court held that even if a notice is issued to stop the payment of money before the payee has deposited the cheque with his bank, the act of crime is committed. Once the cheque is issued by the drawer, it must be presumed that just because a notice is issued by the drawer to the drawee or to the Bank, it will not stop action under section 138 by the holder of the cheque in due course. Thus, defense under strict interpretation of “insufficiency of funds” stands weak to some extent.

M/s Meters and Instruments Private Limited & Anr. v. Kanchan Mehta

A bench of Supreme Court comprising of two Judges made some points clear regarding dishonor of cheque. Directions were also issued  for speedy trial of such cases under Section 138 of the Act of 1881.

Modern technologies were opined to be adopted to enable speedy disposal of the Section 138 cases. The Court noted that:

"Use of modern technology needs to be considered not only for paperless Courts but also to reduce overcrowding of Courts. There appears to be need to consider categories of cases which can be partly or entirely concluded “online” without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated. Traffic challans may perhaps be one such category.

Atleast some number of Section 138 cases can be decided online. If complaint with affidavits and documents can be filed online, process issued online and accused pays the specified amount online, it may obviate the need for personal appearance of the complainant or the accused. Only if the accused contests, need for appearance of parties may arise which may be through Counsel and wherever viable, video conferencing can be used. Personal appearances can be dispensed with on suitable self-operating conditions."

 Geekay Exim (India) Ltd. v. State of Gujarat (1998)

The Gujarat High Court held that though the element of mens rea is not important under Section 138, such element must be presumed to exist at the instance of every case. This means that the question whether mens rea should be considered or not while adjudicating, varies from case to case depending on their circumstances.

 Jayawati v. Yogesh Kumar Gosain (Delhi High Court)

Another landmark judgment was passed by the Delhi High Court. In this case, the Court drew a distinction between traditional criminal cases and offence under Section 138. The purpose of such distinction was to validate that it is very much within the laws to refer a case of Section 138 for mediation.

Premchand Vijay Kumar v. Yashpal Singh

In this case of Premchand it was held by the Apex Court that upon a notice under section 138 of Negotiable Instrument Act being issued, a subsequent presentation of a cheque and its dishonour would not create another ‘cause of action’ which could set the section 138 machinery in motion. Only 4 Bhaskaran concomitants were spelt out in this judgement instead of 5.

Chandrabolu Bhaskararao’s case

In the case of Chandrabolu, it was held by the High Court of Andhra Pradesh that it is not mandatory for promissory note to be an attestable document even if the signatures of the attesters are taken and after its execution it does not amount the material alteration. So it does not get quashed. So therefore, whether there were attesters or not at the time of its execution is immaterial, more so when its execution is admitted.

Bhutoria trading co. v. Allahabad Bank

It was pointed out by the Hon’ble court that where there are no circumstances that afforded any reasonable ground for believing that the payee was not entitled to receive payment of the cheques, the bank is deemed to have payment in due course.

Bhaskaran v. Shankaran Vaidhyan Balan

In this case, the Two-Judge Bench of the Supreme Court had held that the offence under Section 138 of NI Act can be completed only with the concatenation of a number of acts. However, this ruling was overruled by Supreme Court’s judgment in Dashrath Roop Singh case.

Dashrath Roopsingh Rathod v. State of Maharashtra

A strict approach was applied by the Apex Court in its new judgement which sought to discourage the payer for misusing or carelessly issuing cheques. Thus, due sympathy was shown or given to the drawer.

Infact in this case it was observed by the Supreme Court of India that courts have been enjoined to interpret the law to eradicate ambiguity, and to ensure that legal proceedings have not been used as a device for harassment even of apparent transgressor of law. 

M.M.T.C. Ltd. and Anr. Vs Medchl Chemicals and Pharma (P) Ltd. and Anr. ( AIR 2002 SC182)

The Apex Court held that even though the cheque stands dishonored, the drawer of the cheque is to be held guilty as a complaint under Section 138 is maintainable. The burden of proof lies on the accused to show that he had issued an instruction to stop the payment because of valid reasons. In other words, the presumption as to existence of legally enforceable debt is rebut table as per Section 139. It further held that even a payee or the holder in due course of the cheque can file a complaint under Section 142 of NI Act and it need not necessarily be by a Director or  duly authorized officer as the defect can be cured later. Complaint cannot be quashed.

Case Summary and Outcome

A bench of 9 judges of the Supreme Court of India held with majority ratio of 6:1 that the right to privacy was a constitutionally protected right in India, as well as somewhat similar to other freedoms guaranteed by the Indian Constitution. Retired High Court Judge Puttaswamy brought this case to the Supreme Court and challenged the Government’s proposal for a uniform biometrics-based identity card which would be compulsory for access to government services and benefits. The Government argued that the Constitution of India did not provide precise protection for the right to privacy. The Court presented their case relying on the argument that that privacy is an incident of fundamental freedom or liberty which is provided to every Indian under Article 21 which says that: “No person shall be deprived of his life or personal liberty except according to procedure established by law” Justice.  K.S.Puttaswamy (Retd) vs Union Of India is a landmark case which will challenge some constitutional provisions to a wide range of Indian legislation. Observers are also expecting from Indian Government to establish a data protection regime to protect the privacy of the individual. This case has a very wider significance as it is used by privacy campaigners as a tool to pursue the constitutional debate over privacy in other countries.

Facts of the case

This case was brought before the Supreme Court of India by a 91-year old retired High Court Judge Puttaswamy against the Union of India (the Government of India) before a nine-judge bench of the Supreme Court and this bench had been set up on reference from the Constitution Bench to find out whether the right to privacy was guaranteed as an independent fundamental right following many conflicting judgements from other Supreme Court benches.

In this case government’s Aadhaar scheme (a form of uniform biometrics-based identity card) was challenged, and government made this proposal for making it compulsory for access to government services and benefits. The challenge was brought before a bench of three judges of the Supreme Court by relying their argument on the point that this scheme violated the right to privacy. However, the Attorney General of India stated on behalf of the Union of India that Constitution of India does not provide specific protection for the right to privacy. He based this on observations made in the case of M.P. Sharma v. Satish Chandra (an eight-judge bench) and Kharak Singh v. Uttar Pradesh (a five-judge bench). However following this hearing an eleven-judge bench found that fundamental rights were not to be considered as different, unrelated rights, thereby upholding the dissenting view in Kharak Singh. This also made the base of later decisions by smaller benches of the Supreme Court which expressly recognized the right to privacy.

Due to these cases a Constitution Bench was again construed and held that a bench of 9 judges are required to determine whether there was a fundamental right to privacy within the Constitution.

It was argued by Judge Puttaswamy before the bench of 9 judgesthat this right was an independent right, guaranteed by the right to life with dignity under Article 21 of the Constitution. The Respondent submitted that the Constitution only recognized personal liberties which may incorporate the right to privacy to a limited extent. The Court considered detailed arguments on the nature of fundamental rights, constitutional interpretation and the theoretical and philosophical bases for the right to privacy as well as the nature of this right.

Ratio of the Case

 The Puttaswamy judgment is a landmark judgment. The main holding of the case is that right to privacy is being protected under Articles 14, 19 and 21 of the Constitution of India.

The judgment contains 6 concurring opinions which affirm to the right top privacy. The previous judgments in Kharak Singh vs. State of UP and M.P Sharma v Union of India have been overruled by the constitution bench of Supreme Court.

The decision of the Supreme Court bench was unanimous in guaranteeing right to privacy as an intrinsic part of the right to life and personal liberty under Article 21.

It was a 9 Judge bench of the Hon’ble Supreme Court which recognized such right to privacy.

The bench reinforced the right to privacy. The bench held that right to privacy includes

1.      Autonomy over personal decisions.

2.      Bodily integrity

3.      The protection of personal information

The examples given by the bench were consumption of beef, reproductive rights and privacy of health records.

 The implications of the much discussed right were also discussed as below:

Justic Chandrachud:

In his opinion, privacy is not surrendered fully when an individual is at public places. Moreover, right to privacy is dual faced. It is a negative one because such right is against the State. The positivity of such right is that State protects some instances like homosexuality. Thus, there is a dire need for introduction of a regime which would protect data.

Justice Chelameswar:

Right to privacy implies right of refusing medical treatment, against forced feeding, of consuming beef and to display symbols of religion in one’s personal appearance etc.

Justice Bobde:

In his opinion, it is of utmost importance to obtain consent for the purposes of distributing personal data, especially which is inherent in nature. For example, health records of an individual are completely directional as to whether he/she wants his/her medical history or disease be made known to the public or not.

Justice Nariman:

Justice concurred the opinion and he clarified that the facets of privacy into non-interference with the individual body, protection of personal information and autonomy over personal choices.

Justice Sapre:

In his view, right to privacy also includes an individual person’s right to freedom of expression and movement. Such right is essential as they ensured dignity of a person by satisfying the constitutional aims of liberty and fraternity.

Justice Kaul:

 Justice related right to privacy with the need for protection of informational privacy and the right to preserve personal reputation. He opined that there has to be some law which would provide for data protection and regulation of national security exceptions that allow for interception of data by the State.

Apart from the above specific opinions, the Court also gave recognition to the fact that right to privacy along with being absolute, also allowed for restrictions legally imposed. This adheres to the aim of the State.

Implications of the Case

The implication of the Puttaswamy case is that ‘freedom of expression’ is expanded. Privacy is now recognized as a right which is independently enforceable by the Courts of Law.

Certain rights now protected by the Indian law, such as

1.      right against arbitrary, unregulated State surveillance;

2.      the right to express one’s sexual orientation, religious expression and data protection.

Conclusion

The historic 9 Judge Bench has given the judgment in the present case. Therefore, the judgment becomes a binding one on all the Courts of law. The judgment can be overruled only by a judgment which is given by a bench larger than 9 Judges.

Another point to be noted is that the scope of right to privacy has been widened by the Bench. This would definitely provide assistance to the people who come up and speak on privacy.

The overall holding of the judgment is that right to privacy emerges from Article 21. It should meet the threefold requirement

1.      Legality;

2.      Need for a legitimate aim;

3.      Proportionality

Informational privacy is a part of right to privacy. The Government will have to act upon a regime for data protection.

Jammu and Kashmir (J&K) has always been the most talked about state of India and due to article 370 of the constitution of India it has always enjoyed a special autonomy. Article 370 of the constitution came into the limelight again after state of Jammu and Kashmir agreed for the implementation of GST bill just after a week when GST bill came into existence. Even though everyone had doubt over review of Article 370,It has been ensured by Union Home Minister Rajnath Singh that the BJP led Centre would not do anything against the wishes of Kashmiris.

What is Article 370? 

Article 370 is basically a 'temporary provision' that gives special rights and autonomous status to the state of Jammu & Kashmir. Part XXI of the Constitution of India deals with "Temporary, Transitional and Special provisions of the Constitution", according to this part the state of Jammu & Kashmir has been given special status under Article 370. All those provisions of the Constitution which are applicable to other states of India are not applicable and relevant to state of J&K. For instance, till 1965, state of Jammu and Kashmir had a Sadr-e-Riyasat for governor and prime minister in place of chief minister. 

What is the History of Article 370?

The provision of article 370 was drafted in 1947 by Sheikh Abdullah and Sheikh Abdullahwas appointed as prime minister of Jammu & Kashmir by Maharaja Hari Singh and JawaharLal Nehru. He stated that Article 370 must not be placed under temporary provisions of the Constitution. He asked for 'iron clad autonomy' for the state, which was not acceptable for the centre. 

Merits and Demerits of Article 370

1. Power

Merit: State has the ultimate veto power

State of Jammu and Kashmir has its own sets of Fundamental rights and without taking permission of the state of J&K no law can be enforced by the Central Government. This means that the state enjoys a complete autonomy.

Demerit: The Indian government can interfere only in limited areas

 The government cannot interfere in anything any matter any issue excluding the areas of defence, communication and foreign affairs. The government cannot declare a national or financial emergency in the state unless there is internal disturbance.

2. Constitution and Flag

Merit: Kashmir has its own constitution and flag

Among all the states in India, Jammu and Kashmir is the only state to have its own constitution. Till 2002, Minimum of 29 amendments has been made to the constitution of J&K. In J&K the residual powers stays with the State government, not the Centre which is not the case in other states.

State of Jammu and Kashmir has its own red colour flag which has a story to it.21 people were martyred during the protest against the Dogra rulers in 1931. So the protestors raised the blood stained t-shirt of one of the victims as the new flag of Kashmir. The current flag of Kashmir is red in colour in memory of the martyrs and has 3 lines to represent Jammu, Kashmir and Ladakh. It also has a plough representing farmers.

Demerit: No Indian law or Supreme Court verdict is applicable in J&K

The biggest drawback is that even important and relevant laws are not applicable in the state of J&K. For example, Fundamental Duties and Fundamental Rights, Indian Penal Code and Right to Information do not apply to Jammu and Kashmir.

Due to the lack of Fundamental Rights, when something as basic as Right to Education is not available, it poses a grave threat to the quality of life in Jammu and Kashmir. Also, even though 20 % of the population belongs to the SC and ST category, the constitutional provisions that protect their interests haven’t reached them.

3. Citizenship

Merit: Permanent residents of Kashmir enjoy dual citizenship.

The residents of state of J&K are citizens of India as well as Jammu and Kashmir. Thus, the permanent residents of J&K enjoy citizenship of J&K and India, but Indians can never be citizens of J&K.

Demerit: They can lose their citizenship by marrying a non-Kashmiris

According to the provision of Article 370, if a woman marries a man outside of J&K, she will lose her citizenship of J&K. But if she will get married to a Pakistani, she can retain her citizenship of Jammu & Kashmir. According to Article 370 if a Pakistan’s male citizen will marry a Kashmiri girl, he can have an Indian citizenship.

In the end, quite a lot of what’s happening in Kashmir can be ascribed to Article 370. However, since the state’s consensus is with Article 370, there seems to be no immediate threat to it

4. Privileges

Merit: Only permanent residents of J&K can buy land and immovable property

The laws relating to land is not emerge recently. Rather they existed until the Dogra reign when the sole purpose of enactment of laws was to keep the Britishers prevented from taking away their land. After having a great legal history, it was made compulsory for the temporary residents of the State to be banned from acquiring any immovable property in Jammu and Kashmir.

Demerit: Less infrastructural investment is acting as a hurdle to Kashmir’s development

The businessmen were not allowed to set up and make investments in industries as there were no opportunities for growth. This was the main reason for thousands of people sitting unemployed at that time. Due to unemployment, the economic situation of Kashmir almost became stagnant. The youth of Kashmir unwillingly indulge in unethical practices to earn bread. This truly is a threat to the future of Kashmir. Even, there are no proper health care facilities as the medical practitioners are forced not to set up any hospitals, clinics, etc there.

5. Anti-national

Merit: Insulting or burning the national flag is not a cognizable crime in Kashmir.

The State flag was adopted on June 7, 1952. The J&K Prevention of Insult to State Flag Act, 1979 prevents any disrespect to the State flag. Under the Act, it is an offence to “bring into contempt” the State flag.

Demerit: This probably makes Kashmir a safe haven for all the anti-national elements under this article

There is lack of checking mechanisms which would ensure respect for the nation. This is the reason why it has been isolated. The valuable (to the State) youth are being taken up into insurgency and militancy. They are there made subject to being brainwashed into stone pelting. The consideration they are offered is payment of money. They are paid for carrying out the immoral acts.

On January 2, 2018, the Finance Minister proposed The Negotiable Instruments (Amendment) Bill before the Lok Sabha. The president of India agreed to this amendment and was notified in the Official Gazette on 02.08.2018 to become an Act called the Negotiable Instruments (Amendment) Act, 2018 (No. 20 of 2018).

The Amendment was done to meet the following aim:

1. Reducing the undue delay in the cheque dishonor cases and,
2. Provision for payment of interim compensation to the complainants.

 The main object of amendment was to ease the dealings of the business.

The Statement of Objects and Reasons of the Negotiable Instruments (Amendment) Bill is produced herein below:

"The Central Government has been receiving several representations from the  public including trading community relating to pendency of cheque dishonour cases. This is because of delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on   proceedings"

AMENDMENTS:

 143A and 148, 2 new sections have been proposed to be included under the Negotiable Instruments Act, 1881 via the Amendment Act:

SECTION 143A

It gives the Court power to order the drawer of the cheque to pay Interim Compensation to the complainant:

1. In case of a summary trial or a summons case, where the drawer pleads not guilty to the allegations made in the complaint, and
2. In any other case, upon framing of the charges.

Quantum of Compensation

The amount of compensation which can be awarded shall not exceed 20 percent of the total cheque amount.

On Acquittal

There may arise certain situations in which the drawer is acquitted and payee is directed to refund the entire amount of interim compensation. Such refund will be in addition to the RBI's Prevailing interest rate.

Time Frame

The intermediate compensation will have to be paid within 60 days from the date of the order by the court. This period is extendable to 30 days. Extension will be granted only when the applicant is successful in satisfying the Court that he had genuine reasons for the delay.

SECTION 148

Section 148 was inserted in the Negotiable Instrument Act to give power to the Appellate Court for ordering payment pending the appeal against conviction under Section 138 of the Negotiable Instruments Act.

Another power conferred upon the Appellate Court is that it may order the appellant to deposit an amount which shall be a minimum of 20% of the fine or compensation awarded by the trial Court. This amount shall be in addition to the amount already paid by the appellant under Section 143A. This deposit may be released by an order for payment to the complainant at anytime during the pendency of the appeal.

On Acquittal

In situation where the appellate is acquitted, the complainant will be directed by the Court to refund the entire deposit amount along with the RBI's prevailing interest rate to the appellant.

Time Frame

The deposit will have to be made within 60 days from the date of the order by the court. . Extension will be granted only when the applicant is successful in satisfying the Court that he had genuine reasons for the delay.

CONCLUSION:

The Amendment Act comes as a relief for the Payee of the Cheque, who has to spend a significant amount of time and energy in the court to recover the money due to him in a Cheque bounce case. Of late the recovery provisions have been strengthened so that business community is relieved and safeguarded from undue hardship.

Radha Chemicals v. Union of India

The Court contained itself to Section 34 of the 1993 Act, section 34 lays down the parameters and procedure on the basis of which an award passed by the arbitrator can be set aside. Sub-section (4) of Section 34, gives the arbitral tribunal time to restart the proceedings and remove the grounds, as such, for setting aside the arbitral award and that such an application should be made within three (3) months from the date of a party receiving arbitral awards, unless otherwise in the opinion of the Court.

In this case the award was made and published almost ten 10 years ago from the date of the appeal, and the grounds on which the award was questioned was the limitation period, which was basically never raised until the Appeal in 2017.And, while the interference of the Court is expected to be kept minimal therefore, the remedy to set aside arbitral award and the discretion exercised by the Court is limited. Further, as observed by the Court in the Kinnari Mullick's supra, the Court stick to same view that it has no jurisdiction to send the matter for fresh decision. The present order of the Supreme Court has further clarified the stand of jurisdiction and discretion which the Court needs to exercise while remitting a matter for arbitration in lieu of Section 34 in its entirety and not in isolation.

The State of Bihar &Ors. Vs. Bihar RajyaBhumiVikas Bank Samiti

A bench of 2 judges including Justices Rohinton Fali Nariman and Indu Malhotra,  gave a judgment that deals with the nature of Sections 34(5) and (6) of the Arbitration and Conciliation Act, 1996.These clauses were added to the Act of 1996 by Amending Act 3 of 2016 (w.e.f. October 23, 2015). The aforementioned judgment stands as a landmark precedent for every lawyer and court to follow when an issue arises as to whether the amended Sections 34(5) and (6) of the Arbitration and Conciliation Act, 1996, are to be treated as mandatory or directory in nature.

For the sake of convenience, the inserted Sections 34 (5) and (6) of the amended provisions of the Arbitration and Conciliation Act, 1996, are reproduced herein:

“34. Application for setting aside arbitral award.—

(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement. 

(6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party.” 

M/s Emkay Global Financial Services Ltd. v. GirdharSondhi

The Supreme Court recently ruled in this case that unless absolutely necessary, the courts should not go beyond the record before the arbitrator in deciding an application for setting aside an award. The court also reiterated that “seat” in the context of arbitration proceedings is akin to an exclusive jurisdiction clause and would vest the seat courts with exclusive jurisdiction over the arbitration proceedings.

K. Kishan v. Vijay Nirman Company

(Civil Appeal No. 21824 of 2017, decided on August 14, 2018)

This case related to a dispute in which claims arose when a project was referred to an arbitral tribunal. Even as the arbitral tribunal passed an award in favor of the creditor, the award was challenged by the debtor under Section 34 of the Act. The IBC gave him time period of ten days for doing so. But, he filed an application with the NCLT which ruled that under Section 34 o the Act of 1996, the claim being admitted was completely irrelevant. The NCLAT was approached which again ruled that Section 238 of the IBC would override the Arbitration Act.

The matter then came up to Supreme Court. The Court was to decide whether the Insolvency and Bankruptcy Code, 2016 can be invoked in respect of an operational debt where an arbitral award has been passed against the operational debtor, which has not yet been finally adjudicated upon. The holding of the Apex Court was that when an petition under Section 34 is filed against the arbitral award, it implies that there is an existing dispute culminating at the very 1^st stage of the proceedings. It continues even after the Award has reached final stage under Sections 34 and 37.

BCCI v. Kochi Cricket Pvt. Ltd.

(2018) 6 SCC 287

The question before Supreme Court was that what will happen to the petitions filed under Section 34 of the Act that had been filed before the commencement of the Amendment Act, which were governed by Section 36 of the old Act? Would Section 36, as substituted, apply to such petitions?

The Supreme Court inter alia held:

1.      Section 36 will apply to pending Section 34 applications on the date of commencement of the Amendment Act.

2.      The context of Section 36 would refer to Section 34 petitions filed before the commencement of the Amendment Act and it would be apply , in its substituted form, even to such petitions. 

3.      Looking at the practical aspect and the nature of rights presently involved, and the sheer unfairness of the unamended provision, which granted an automatic stay to execution of an award before the enforcement process of Section 34 was over (and which stay could last for a number of years) without having to look at the facts of each case, it is clear that Section 36 as amended should apply to petitions filed under Section 34 before the commencement of the Amendment Act also for the aforesaid reasons.

Articles 226 and 227 of the Indian constitution define the powers of the High Court of India.

Article 226, give High Courts the power to issue any person or authority, including the government in some cases, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them.

What are these Writs?

Habeas Corpus - A simple dictionary meaning of the writ of Habeas Corpus is "a writ requiring a person under arrest of illegal detention to be brought before a judge or into court, especially to secure the person's release unless lawful grounds are shown for their detention".

Mandamus- A writ issued as a command to an inferior court or ordering a person to perform a public or statutory duty.

Prohibition- A writ of prohibition is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction in cases pending before it or acting contrary to the rules of natural justice.

Quo warranto - This simply means "by what warrant?” This writ is issued to enquire into the legality of the claim of a person or public office. It restrains the person or authority to act in an office which he / she is not entitled to; and thus, stops usurpation of public office by anyone. This writ is applicable to the public offices only and not to private offices.

Certiorari- Literally, Certiorari means "to be certified". The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court, tribunal or quasi-judicial authority.

The High Court is conferred with this power under Article 226 of the Constitution of India for enforcement of any of the fundamental rights conferred by part III of the Constitution or for any other purpose.

Article 227 gives every High Court power to have superintendence over all courts and tribunals throughout the territories regarding which high court exercises its jurisdiction (except a court formed under a law related to armed forces).

Under article 227 of Indian constitution, every high court of India has following powers –

• High court can call for returns from such courts,
• High court has an authority to make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts.
• Prescribe forms in which books, entries and accounts be kept by the officers of any such courts.
• Settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts.

Scope, Powers and Difference between Article 226 and Article 227

 In the case of Surya Devi Rai vs. Ram Chander Rai, the Supreme Court of India relied on many previous constitutional Judgments of the Hon'ble Apex court, one oof those judgments were Umaji Keshao Meshram and Ors. vs. Smt. Radhikabai and Anr, it was this case who laid down scope, power and differences between Article 226 and Article 227.

The most important and particular difference between the two articles is that Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 gives the provisions of Section 107 of the Government of India Act, 1915, excluding the fact that the superintendence power has been extended by this Article to tribunals as well. Though the power is similar to that of an ordinary court of appeal, but still the power given Article 227 is with an aim that it must be used exceptionally and only in specific cases for the purpose of keeping the subordinate courts and tribunals within the limit of their authority and not for correcting mere errors.

It was also observed by the court that power under Article 227 shall be exercised only in cases of grave injustice or failure of justice such as

(i) When the court or tribunal has believed in a jurisdiction which basically it does not have, (ii) The court or tribunal has flunked to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and

(iii) The jurisdiction which is available to the court but it is being used in such wrong manner that it is over stepping the limits of jurisdiction.

In the case of Surya Devi rai vs. Ram Chander Rai,the Hon'ble Supreme Court observed that there is lack of knowledge of the distinction between the understanding of Article 226 and 227 and hence it is a common custom with the lawyers labeling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncements.

The Hon'ble Supreme Court after looking into its previous judgements in case of Surya Devi Rai vs. Ram Chander Rai laid down the following differences:

i. Firstly, the writ of certiorari is an exercise of its original jurisdiction (Article 226) by the High Court; exercise of supervisory jurisdiction (Article 227) is not an original jurisdiction and in this regard, it is akin to appellate revision or corrective jurisdiction.

ii. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more (Art 226). In exercise of supervisory jurisdiction (Art 227) the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute the impugned decision with a decision of its own, as the inferior court or tribunal should have made.

iii. The jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved but the power conferred under Article 227 viz the supervisory jurisdiction is capable of being exercised suomoto as well.

The court further added that under Article 226 of the Constitution, writ is issued for correcting gross errors of jurisdiction, basically when a subordinate court is found to have acted in following manner:

(i) When subordinate court assumes jurisdiction where it does not have any

(ii) In excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or

(iii) Acting in wrong disregard of law or the rules of procedure or when subordinate court acts in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate court has assumed a jurisdiction which it does not have, or has failed to exercise a jurisdiction which it does have, or the jurisdiction though available is being exercised by the court in a manner not permitted by law, and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

The Hon'ble Supreme Court, through this judgment, brought all the subordinate Judicial bodies under the ambit of Article 226 of the Constitution of India, curtailing the alternate remedy of Appeal available to the aggrieved, which directly or indirectly made no difference in the powers of Article 226 and 227 of the Constitution of India.

The difference between Article 226 and Article 227 of the Indian Constitution was very firstly brought up in the case of Umaji Keshao[1].

The Court has held that

“Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamount to overstepping the limits of jurisdiction.

25. Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.

Radhey Shyam & Anr vs Chhabi Nath & Ors

It was in the year 2015 that the Constitution Bench of the Hon'ble Supreme Court comprising of H.L Dattu. CJI, Sikri.J, and A.K. Goel. J, were to look into the matter of correctness of the law which was promulgated in another case.[2]

The Hon'ble Court observed that:

"This Court unfortunately discerns (with Surya Devi Rai vs. Ram Chander Rai) that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also, in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases, the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals, writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.

We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed, it has not resulted in expanding the High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.

Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226."

Hence, the Supreme Court noted the difference between Article 226 and Article 227. It also condensed some powers to the High Courts under Article 226. They have to attend petitions which do not touch, in any way, the Fundamental Rights of any person.

The scope of Article 226 and Article 227 is quite vast. The High Court has the power to correct errors of jurisdiction. But it cannot disturb the true findings of the facts because they are within the appellate Court’s jurisdiction only.

Another power of High Court is the power of revision. It enables the revision Court to be sure of the following of a finding

1.      Correctness

2.      Legality

3.      Propriety

4.      Sentence or order recorded/passed

Under Article 226, High Court can’t be regarded as a Revision or Appellate Court because when any subordinate Court rejects the order, the legal remedy of appeal is available to the aggrieved party to get an answer of the question of violation of fundamental right.