List of Current Affairs

Source – Supreme Court

Why in News?

Recently, the Supreme Court in the matter of Odi Jerang v. Nabajyoti Baruah & Ors., has observed that the procedure under Section 202(1) of Criminal Procedure Code, 1973 (CrPC), is mandatory when one of the accused is a resident of a place outside the Magistrate’s jurisdiction.

Background

• In this matter, the petitioner is the complainant in a complaint filed under Section 200 of the CrPC.
• The Magistrate issued summons after examining the petitioner under Section 200 of CrPC.
• Thereafter, the accused approached the Gauhati High Court and raised an objection on the ground that though some of the accused were residing at a place beyond the area covered by the jurisdiction of the learned Magistrate, the mandatory requirement of Section 202(1) of CrPC was not followed.
• The HC quashed the order issuing summons and remanded the complaint to the Magistrate to deal with the same from the stage of Section 202 CrPC.
• Thereafter a Special Leave Petition was filed before the Supreme Court by the Petitioner.
• The Apex Court dismissed the Special Leave Petition.

Court’s Observations

• A bench of Justices Abhay S. Oka and Pankaj Mithal observed that the procedure under Section 202(1) of CrPC is mandatory when one of the accused is a resident of a place outside the jurisdiction of the Magistrate.
• The bench further observed that there cannot be any doubt that in view of the use of word "shall" in sub-section 1 of Section 202 of CrPC and the object of amendment made by the Act No. 25 of 2005, the provision will have to be held as mandatory in a case where the accused is residing at a place outside the jurisdiction of the learned Magistrate.

Legal Provisions

Section 200 of CrPC

• Section 200 of CrPC deals with the examination of complainant. It states that -
• A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and by the Magistrate.
• Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
  • (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
  • (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192.

Section 202 of CrPC

• Section 202 of CrPC deals with the postponement of the issue of process on the part of the Magistrate. It states that -
  • (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.
• Provided that no such direction for investigation shall be made -
  • (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
  • (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
• (2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath.
• (3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.

Essential Elements of Section 202, CrPC

• Section 202 comes into play after the Magistrate has taken cognizance of the offence.
• The Magistrate has the power to investigate or direct the police officer to investigate the matter kept for consideration under the complaint that they have received under Section 192 or Section 202 of CrPC.
• Upon receiving a complaint, a magistrate can postpone the issue of summons or the arrest warrant to the accused, and during this time, they can either conduct the inquiry by themselves or direct the police to carry out the investigation.

Source: Delhi High Court

Why in News?

In the matter of Annwesha Deb v. Delhi State Legal Services Authority, the Delhi High Court held that pregnant working women are entitled to maternity benefits and cannot be denied relief under the Maternity Benefit (Amendment) Act, 2017.

Background

• The petitioner was working in the Juvenile Justice Board, New Delhi as a legal aid counsel on a daily fee basis.
• During her contractual employment, the petitioner conceived a child in April 2017 and applied for maternity leave of seven months on 6th October 2017.
• A letter was served upon the Member Secretary by the petitioner regarding the application requesting the grant of maternity benefits to her, an email was also sent to the Delhi State Legal Services Authority (DSLSA) on 21^st October 2017.
• The petitioner received a reply dated 31st October 2017 to her email from DSLSA, stating therein that her request for maternity benefit had been declined on the basis that no provision for grant of maternity benefits is provided under DSLSA.
• The petitioner, being aggrieved by the decision of the concerned authorities (respondent) has approached this, Court.
• The petitioners placed reliance on Municipal Corporation of Delhi v. Female Workers (Muster Roll), (2000) in which it was observed that a woman cannot be compelled to undertake hard labour at the time of advanced stage of her pregnancy and that she would be entitled to maternity leave for certain period prior to and after her delivery.

Court’s Observations

• The Court while granting relief to the pregnant woman said that “Since, no extreme medical or other exigencies have been presented by the petitioner, ante-natal or post-natal, she shall be entitled to the benefits for the time period as provided under the Maternity Benefit Act, 2017 of 26 weeks. The needful shall be done by the respondent within a period of three months from the date of receipt of this order.”

Legal Provisions

Maternity Benefit Act, 2017

• The Maternity Benefit Act, 1961 - A legislation that protects the employment of women at the time of her maternity.
  • The Act is applicable to establishments employing 10 or more employees.
• The 1961 Act was amended in 2017 and the Maternity Benefit (Amendment) Act, 2017 came into effect on April 1, 2017.
• Major changes incorporated in the amended Act:
  • Duration of Maternity Leave: Duration of Maternity Leave was raised from 12 weeks to 26 weeks.
    • Earlier this benefit could not be availed before six weeks from the date of expected delivery, which has been increased to eight weeks.
    • Where the woman who has two or more children, the maternity benefit will continue to be 12 weeks, which cannot be availed before six weeks from the date of the expected delivery.
  • Availability of Work from Home: This provision was introduced by the amendment act and the option can be availed of after the period of maternity leave, for a duration that is mutually decided by the employer and the woman.
  • Crèche Facilities: Every establishment with 50 or more employees needs to provide a crèche facility within a prescribed distance as per Section 11A.
    • The woman will be allowed four visits to the crèche in a day which will be included in her interval for rest.
  • Maternity Leave for Adoptive and Commissioning Mothers: The Bill introduces a provision to grant 12 weeks of maternity leave to:
    • A woman who legally adopts a child below three months of age; and
    • A commissioning mother (A commissioning mother is defined as a biological mother who uses her egg to create an embryo implanted in another woman.)

Source: Allahabad High Court

Why in News?

A bench of Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava, Allahabad High Court reiterated that the power of judicial review under Articles 226 and 227 of the Constitution of India is not ousted by Section 22 of the National Green Tribunal Act, 2010 (NGT).

• The HC gave the observation in the matter of M/s Hotel the Grand Tulsi and 15 Others v. State of U.P. And & others.

Background

• An order of NGT was challenged before the court under Article 226.
• It was primarily challenged on the ground that the NGT has passed the order without any notice or opportunity of hearing being provided to the petitioners.
• The petitioners stated that the order and the demand notices issued are in complete violation of the principles of natural justice and are liable to be set aside.
• The counsel for the respondent contended that petitioners are essentially aggrieved by the order of the NGT which is appealable under Section 22 of the NGT Act.
  • And hence, the writ petition are not liable to be entertained in the wake of availability of an effective alternative remedy to the petitioners.

Court’s Observation

The HC observed that “While a HC would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising the jurisdiction in certain contingencies”.

Writ Jurisdiction of High Court

• Under Article 226:
  • Clause 1 of this article confers powers in the HC to issue orders or writs including habeas corpus, mandamus, prohibition, quo warranto, and certiorari, to any person or any government for the enforcement of fundamental rights and for other purposes.
  • This power may be exercised by the HC within whose jurisdiction the cause of action occurred.
• Under Article 227:
  • Clause 1 of this article states that every HC shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction.

National Green Tribunal (NGT)

• NGT was established under the NGT Act, 2010.
• It was established for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources.
• Its power includes enforcement of legal rights related to the environment, providing relief, compensation and other incidental matters.
• Decisions of the NGT are binding. It has the power to review its own decisions which can later be challenged before the SC within 90 days.
• It is not bound by the procedure enshrined in the Code of Civil Procedure, 1908 (CPC), it follows the principles of natural justice.
• After Australia and New Zealand, India became the 3rd country in the world to set up a specialized environmental tribunal.

Landmark Cases

The following landmark judgments related to the power of judicial review were cited in this case:

• L Chandra Kumar v. Union of India (1997):
  • The power of judicial review over legislative action vested in the HC under Articles 226 and in SC under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure.
  • Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.
• Madhya Pradesh High Court Advocates Bar Association and another v. Union of India & another (2022):
  • The power of judicial review of the HC under Article 226 and 227 of the Constitution of India is not ousted by Section 22 of the NGT Act and remains unaffected.