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Tuesday, 4 December 2012

Right to Information Act, 2005

File Number = 29438
SUPREME COURT OF INDIA
Right to Information Act, 2005, Section 8(1)(d), 8(3) -- Right to information - Exemption from disclosure - Exemption from disclosure at one point of time may cease to be exempted at a later point of time.
Right to Information Act, 2005, Section 8(1)(d), 8(3) -- Right to information - Exemption from disclosure - There is no prohibition from disclosure of question papers, model answers (solutions to questions) and instructions if any given to the examiners and moderators after the examination and after the evaluation of answer scripts is completed, as at that stage they will not harm the competitive position of any third party.
Right to Information Act, 2005, Section 9 -- Right to information - Exemption from disclosure - Institute of Chartered Accounts of India - It is a `State' as it is a statutory body created by Chartered Accountants Act, 1948 - Information as to question papers, solutions/model answers or other instructions - Prepared by third party - Copyright therein is assigned in favour of ICAI - ICAI holds copyright - Providing access to information in respect of which ICAI holds a copyright, does not involve infringement of copyright subsisting in a person other than the State.
Right to Information Act, 2005, Section 8(1)(e) -- Right to information - Exemption - Instructions and solutions to questions given to examiners and moderators for evaluation of answer scripts - When anything is given and taken in trust or in confidence, requiring or expecting secrecy and confidentiality to be maintained in that behalf, it is held by the recipient in a fiduciary relationship and therefore exempted from disclosure u/s 8(1)(e) of the Act.
Right to Information Act, 2005, Section 8 -- Right to information - Revision of marks - Information as to criteria, authority who decides the exercise of discretion, quantum of such revisions and number of students who benefited in the last five examinations - Plea that data to such information not maintained - As the information sought is not maintained and is not available as such the same cannot be furnished - However, the examining bodies should change their old mind sets and tune them to the new regime of disclosure of maximum information - Public authorities should realize that an era of transparency, previous practices of unwarranted secrecy have no longer a place - Additional workload is not a defence - As the examining bodies have not been exempted from providing the information as such examining bodies have to gear themselves to comply with the provisions of RTI Act.

Dishonour of cheque - Genuineness of signatures

File Number = 29480
RAJASTHAN HIGH COURT
Negotiable Instruments Act, 1881, Section 138 -- Dishonour of cheque - Genuineness of signatures - Expert opinion - Application filed at the stage of examination of complainant as a witness - Plea opposed on ground that cheque is dishonoured for insufficient funds and not on ground of dissimilarity of signatures - Held, in case bank does not object to the authenticity of signature, obviously the forger has succeeded in passing of the forgery as original and authentic - Genuineness of signatures cannot be commented upon either by the complainant or the Court unless scientific data is gathered with regard to the genuineness of signatures - Plea of complainant repelled - An application for expert opinion filed at the stage of arguments of case can be dismissed on the ground that the accused is trying to delay the judgment, but not every application - Trial Court directed to seek FSL opinion with regard to genuineness of signatures.

Transplantation of Human Organs Act, 1994

File Number = 29545
MADRAS HIGH COURT
Transplantation of Human Organs Act, 1994 -- Kidney transplant - Petitioner wanted himself to be operated upon by particular doctor for kidney transplant - Said doctor conducted kidney transplant operation in hospital - Hospital suspended from doing kidney transplant - Held, there is no legal impediment for doctor to operate petitioner in any other hospital.

Dishonour of cheque - It is mandatory for Magistrate to examine complainant and witnesses

File Number = 29525
RAJASTHAN HIGH COURT
Criminal Procedure Code, 1973, Section 200, Negotiable Instruments Act, 1881, Section 138 -- Dishonour of cheque - It is mandatory for Magistrate to examine complainant and witnesses, if they are present, before taking cognizance - Order taking cognizance without examining complainant set aside.

Son born within five months and six days of marriage

File Number = 29557
RAJASTHAN HIGH COURT
Hindu Marriage Act, 1955, Section 12(d) -- Divorce - Son born within five months and six days of marriage - DNA test report that husband was not his biological father - Marriage declared nullity.

Thursday, 22 November 2012

Kidnapping and rape

UTTARAKHAND HIGH COURT
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 3(1)(x), Indian Penal Code, 1860, Section 363, 376 -- Kidnapping and rape - Accused committed rape on victim girl aged 9 years after kidnapping her from place where she was playing - Statement of victim girl secured corroboration from evidence of other witnesses as well as by medical evidence and hence reliable and worthy of credence - Held, conviction of accused under sections 363, 366 and 376 proper - However, no material or record to show that victim was member of ST or SC and conviction of accused u/s 3(1)(x) of SC & ST Act not sustainable and hence set aside