Insurance Company Cannot Deny Accidental Death Claim Merely Because Driver Had Fake Driving Licence: Allahabad HC.

Reporting By: Amit Kashyap.

In an accidental death claim case, the Hon’ble Allahabad High Court bench at Lucknow of Justice Subhash Chandra Sharma in National Insurance Company Ltd. Vs. Kewal Krishna Arora And Others, First Appeal No. – 3492 of 2009 recently refused to absolve the insurance company from its liability to indemnify the deceased’s dependents only because the driver of the vehicle which had caused the death of the victim was holding a fake license at the time of the accident.

The bench was primarily deciding whether the Motor Accident Claim Tribunal (MACT) was wrong in holding that the insurer was liable to pay compensation, where the driver of the truck that had dashed the deceased’s motorcycle from behind, possessed a fake license.

The insurance company had challenged MACT’s decision before the High Court alleging that it was on record that the accident had taken place due to rash and negligent driving of the driver of the truck and at the time of the accident, the said driver had no valid driving license.

The company had argued that in light of these facts, the claim Tribunal had erred in fastening the liability of the payment of compensation to the insurance company as the same should be payable by the owner of the truck in light of the conditions under Section 149(2)(a) of the MV Act.

Section 149(2)(a)(ii) of the MV Act provides that in case the vehicle at the time of the accident is driven by a person who is not duly licensed, the insurer is not liable for the compensation.

However, the High Court declined to agree with the insurance company noting that in the instant case, the matter did not revolve around the validity of the truck driver’s driving license, it was a situation where the driver allegedly possessed only a fake driving license.

The Court also noted that though in its own inquiry the insurance company had found the license of the offending vehicle (the truck) was fake, it had neither proved before the MACT that the truck owner had not taken adequate care and caution to verify the genuineness of the driving license of the driver at the time of his employment nor that the owner was aware that the licence was fake or invalid and had still permitted the driver to drive the offending vehicle.

The Court further stressed that the truck owner had already contended that in this case, the driver of the vehicle held a driving license at the time of the accident which was issued by the Transport Authority, Muzaffarpur but during an investigation by the insurance company, it was found to be fake, which was not in his knowledge.

Accordingly, the Court held, “In such circumstances, it cannot be said that the insured/owner is at fault in having employed a person whose licence has been found to be fake by the insurance company before the learned tribunal.”

In view of the same, the Court dismissed the insurance company’s appeal against the MACT’s order finding no cause to disturb the findings recorded by the Tribunal.

The Court held that only the insurance company was liable to indemnify the dependents of the accident victim.

Essentially, the Additional District Judge/Special Judge (SC/ST)/M.A.C.T., Ghaziabad passed an order on an application filed under Sections 166 & 140 of the Motor Vehicles Act, whereby the Tribunal directed the insurance company to pay a sum of rupees Rs. 12,70,406 along with 6 % interest to the dependents of the deceased.

Important Citations:

~United India Insurance Company Limited vs. Lehru and others (2003) 3 SCC 338.

~National Insurance Company Limited vs. Swaran Singh and others (2004) 3 SCC 297.

~National Insurance Company Limited vs. Laxmi Narain Dhut 2007 (3) SCC 700.

~Pepsu Road Transport Corporation vs. National Insurance Company (2013) 10 SCC 217.

~ Ram Chandra Singh vs. Rajaram & others,
A.I.R. 2018 SC 3789.

~Pepsu Road Transport Corporation (supra) & Premkumari vs. Prahlad Deo (2008) 3 SCC 193.

~Nirmala Kothari vs. United India Insurance Company Ltd. 2020 (4) SCC 49.

Counsel for Appellant :- Anand Kumar Sinha

Counsel for Respondent :- Anurag Sharma, Anurag Singh, Anurag Sinha, Km.Pratima Srivastava, S.Shekhar & Sharve Singh.

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To Attract Drunk Driving U/S 185(a) Of MV Act Accused Should Be Subjected To Breath Analyser Or Blood Test: Kerala HC.

Reporting By: Amit Kashyap

The Kerala High Court bench of Justice V.G. Arun in Manoj Kumar K. v. State of Kerala, Crl. MC. No. 4820 of 2020, while partly allowing the instant petition held that offence under Section 185 of Motor Vehicle Act, 1988 would be attracted only when alcohol content is detected through breath analyser test or in any other test including a laboratory test.

The petitioner was an accused of offences under Sections 279 and 337 of IPC and Section 185 of the MV Act. Allegation against the petitioner was that he had driven his car in a rash and negligent manner so as to endanger human life and had dashed against another car, resulting in the driver and passenger of the other car sustaining injuries. The petitioner was arrested and subjected to medical examination, upon which the doctor opined that the petitioner smelled of alcohol.

Contention of the petitioner was based on the ground that the offence under Section 185 would be attracted only if alcohol content was detected through breath analyser test. The petitioner, while relying on Sagimon v. State of Kerala, Crl. Rev. Pet. No.1122 of 2003 contended that no such test having been conducted, the entire prosecution was illegal.

Noticing that the doctor’s certificate was with regard to the injuries sustained by the petitioner and others as a result of the accident and no mention was made about breath analyser test or any other test conducted for the purpose of finding the alcohol content in the petitioner’s blood the Court clarified as per Section 185, whoever, while driving or attempting to drive a motor vehicle has in his blood alcohol exceeding 30 mg per 100 ml of blood detected in a test by a breath analyser or in any other test including a laboratory test, is liable for punishment. Therefore, in order to attract the offence under Section 185(a), the accused should have been subjected to a breath analyser or any other test including a laboratory test to ascertain that his blood found to contain alcohol exceeding 30 mg per 100 ml.

Therefore, it was held that the petitioner could not be prosecuted and the petition was allowed to the limited extent of quashing further proceedings against the petitioner under Section 185 of the MV Act.

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Advocates for the Petitioner: SRI. I.V.Pramod, SRI. K.V.Sasidharan & Smt. Saira Souraj P.

For Respondent/s: State Of Kerela, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,

For Other Respondent/s: SR.PP. Amjad Ali

An illegitimate child cannot be denied consideration towards compassionate appointment: reiterated by Chhattisgarh HC.

Reporting By: Amit Kashyap.

The Chhattisgarh High Court single bench of Justice Sanjay K Agrawal in Piyush Kumar Anchal v. State of Chhattisgarh, Writ Petition (S) No.1034 of 2022 echoed the legal principle that even an illegitimate son or daughter is entitled to compassionate appointment on death of their father.

The Hon’ble Court delivered this ruling in a challenge to an order rejecting the petitioner’s application on the grounds of an invalid succession certificate.

“The fact remains that even the illegitimate son / daughter is also entitled for compassionate appointment and this question is no longer res integra and stand decided authoritatively by the Supreme Court” the Court said.

The case of Union of India and others v VR Tripathi 1 AIR 2019 SC 666 was considered where the Supreme Court held that a child born out of second marriage is still a legitimate child and is entitled to compassionate appointment.

“Once Section 16 of the Hindu Marriage Act, 1955 regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would not be open to the State, consistent with Article 14 to exclude such a child from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires,” the top court had held in that case.

That view was upheld in Mukesh Kumar v The Union of India, Civil Appeal No.1620/2022, decided on 24-2-2022 where a three-judge Bench of the Supreme Court had said, “The policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate and recognizing only the right of legitimate descendant.”

The High Court in the instant case accordingly reiterated that an illegitimate son cannot be denied consideration towards compassionate appointment.

Thus, the Court remitted the matter to the respondent authorities to consider the applications of both the sons, after giving them an opportunity to represent their entitlement and eligibility.

A decision in this regard was directed to be taken within 45 days, on its own merits.

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Important Citations:

~Union of India and others v VR Tripathi 1 AIR 2019 SC 666.

~Mukesh Kumar v The Union of India, Civil Appeal No.1620/2022, decided on 24-2-2022.

Advocate For Petitioner: Mr. Rakesh Pandey,
For Respondent No.1 / State: – Mr. Amrito , Additional Advocate General.
For Respondents No.2 to 5: – Mr. B.D. Guru, Advocate.

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Hijab Ban: Appeal filed in Supreme Court against Karnataka High Court verdict

Reporting By: Amit Kashyap.

A Special Leave Petition has been filed before the Supreme Court challenging the Karnataka High Court’s Hijab judgment which held that Hijab is not an essential religious practice of Islam and upheld the ban on wearing hijab in government schools and colleges.

According to the legal news web portal Bar & Bench the plea has been field by Niba Naaz, a student from Karnataka through advocate Anas Tanwir.

The plea said that the High Court “failed to note that the right to wear a Hijab comes under the ambit of ‘expression’ and is thus protected under Article 19(1)(a) of the Constitution.”

It also contended that the High Court failed to take note of the fact that the right to wear Hijab comes under the ambit of the right to privacy under Article 21 of the Constitution of India.

With regard to uniform, the plea said that the Karnataka Education Act, 1983, and the Rules made under the same, do not provide for any mandatory uniform to be worn by students.

“A perusal of the scheme of the Act reveals that it aims to regulate the institutions, rather than the students. Sections 3 and 7 of the said Act provide the State Government with the powers to inter alia regulate education, curriculum of study, medium of instruction, etc. However, neither of these provisions empowers the State Government to prescribe a uniform for the students,” the petition said.

The petition also said that there is no provision in the Act or the rules allowing the formation of a ‘college development committee’.

Such a committee, even if formed, has no powers to regulate the wearing of a uniform, or any other matter in an educational institution, it has been contended.

The Karnataka High Court on Tuesday upheld the government order (GO) effectively empowering college development committees of government colleges in the State to ban the wearing of hijab (headscarves) by Muslim girl students in college campus.

A three-judge Bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi held:

-Hijab is not a part of essential religious practices of Islam;
-Requirement of uniform is a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a);
-The government has the power to pass the GO; no case is made out for its invalidation.

The hearing before the Bench had lasted 11 days, before the verdict was reserved on February 25. On the very first day of the hearing, the Court had passed an interim order directing students not to wear hijab, saffron shawls (bhagwa) or use any religious flags while attending classes in colleges which have a prescribed uniform.

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Appeal filed in Supreme Court against Karnataka High Court verdict

Reporting By: Amit Kashyap.

A Special Leave Petition has been filed before the Supreme Court challenging the Karnataka High Court’s Hijab judgment which held that Hijab is not an essential religious practice of Islam and upheld the ban on wearing hijab in government schools and colleges.

According to the legal news web portal Bar & Bench the plea has been field by Niba Naaz, a student from Karnataka through advocate Anas Tanwir.

The plea said that the High Court “failed to note that the right to wear a Hijab comes under the ambit of ‘expression’ and is thus protected under Article 19(1)(a) of the Constitution.”

It also contended that the High Court failed to take note of the fact that the right to wear Hijab comes under the ambit of the right to privacy under Article 21 of the Constitution of India.

With regard to uniform, the plea said that the Karnataka Education Act, 1983, and the Rules made under the same, do not provide for any mandatory uniform to be worn by students.

“A perusal of the scheme of the Act reveals that it aims to regulate the institutions, rather than the students. Sections 3 and 7 of the said Act provide the State Government with the powers to inter alia regulate education, curriculum of study, medium of instruction, etc. However, neither of these provisions empowers the State Government to prescribe a uniform for the students,” the petition said.

The petition also said that there is no provision in the Act or the rules allowing the formation of a ‘college development committee’.

Such a committee, even if formed, has no powers to regulate the wearing of a uniform, or any other matter in an educational institution, it has been contended.

The Karnataka High Court on Tuesday upheld the government order (GO) effectively empowering college development committees of government colleges in the State to ban the wearing of hijab (headscarves) by Muslim girl students in college campus.

A three-judge Bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi held:

• Hijab is not a part of essential religious practices of Islam;
• Requirement of uniform is a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a);
• The government has the power to pass the GO; no case is made out for its invalidation.

The hearing before the Bench had lasted 11 days, before the verdict was reserved on February 25. On the very first day of the hearing, the Court had passed an interim order directing students not to wear hijab, saffron shawls (bhagwa) or use any religious flags while attending classes in colleges which have a prescribed uniform.

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Non-payment of rent may have civil consequences but is not a penal offence under the IPC: SC.

Reporting By: Amit Kashyap

A Division Bench of Supreme Court Comprising of Justices Sanjiv Khanna and Justice Bela M Trived in Neetu Singh & Oths Vs. State of Uttar Pradesh & Oths. CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2022 (ARISING OUT OF SLP (Crl.) NO.783 OF 2020) quashed a FIR registered against a tenant for non-payment of rent arrears and held that failure or non-payment of rent may have civil consequences, but cannot be considered a penal offence under the Indian Penal Code (IPC).

“We are of the opinion that no criminal offence is made out, even if we accept the factual assertions made in the complaint, which was registered as the First Information Report. Failure to pay rent may have civil consequences, but is not a penal offence under the Indian Penal Code, 1860 (for short, “IPC”). Mandatory legal requirements for the offence of cheating under Section 415 and that of misappropriation under Section 403 IPC are missing,” the Court said.

The top court was considering an appeal assailing an order of the Allahabad High Court that had refused to quash the FIR against the present appellant under Section 415 (cheating) and Section 403 (dishonest misappropriation of property) of the IPC.

Taking note of the submissions of one of the respondents that there are huge arrears of rent due to be recovered by the appellants, the top court left it open to them to take recourse to available civil remedies.

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Ad-Hoc Employee Entitled To Maternity Benefits Beyond The Term Of Contract For Pregnancy Occuring During Contractual Period : Delhi HC.

Reporting By: Amit Kashyap

In a significant judgment that can come to the aid of women who are employed on contractual basis, the Delhi High Court division bench comprising Justices Rajiv Shakdher and Justice Talwant Singh in DR. BABA SAHEB AMBEDKAR HOSPITAL GOVT. OF NCT OF DELHI & ANR. Vs. DR. KRATI MEHROTRA, W.P.(C) 1278/2020 & CM No.4405/2020 has held that an ad-hoc employ will be entitled to maternity benefits under the Maternity Benefits Act, 1961, beyond the period of the contract, for a pregnancy occurring during the tenure of the employment. Since the object of the Maternity Benefits Act is to grant benefits to the woman both during pregnancy and after child-birth, the benefits cannot be tied up to the tenure of the contract. As long as pregnancy occurs during the tenure of the contract, she should be entitled to maternity benefits.

The question which arose in the petition was whether an ad hoc employee is entitled to maternity benefit for a period that spills beyond the tenure of the contract?

In this case, the employee was working on contractual basis at Dr. Babasaheb Ambedkar Memorial Hospital under the Delhi Government.

The offer made to the employee provided that the appointment would be for a period of 45 / 89 days or till a regular incumbent joins the post, whichever is earlier.

Her tenure was extended four times. Notably, each time the respondent’s tenure lasted 89 days, and after a short break of one one day, the contract was renewed for another 89 days.

Her last tenure was till 27.06.2017. Two months before the expiry of the term, on 17.04.2017, she applied for emergency maternity leave as due to complicated pregnancy, she was advised to undergo an emergent caesarean section procedure.

However, the hospital, instead of granting her maternity leave, terminated her services by an office order dated 23.05.2017, with effect from 24.04.2017.

Aggrieved with this, she approached the Central Administrative Tribunal and also the National Commission for Women. Following that, the hospital agreed to give her maternity benefits, but only till 27.06.2017 (the date of tenure end).

The employee then approached the Tribunal again seeking maternity benefits for 26 weeks with effect from 17.04.2017. The Tribunal directed the hospital to grant her maternity benefits in terms of Section 5(2) of the Act.

Challenging the Tribunal direction, the hospital approached the High Court. The hospital’s primary argument was that Tribunal had erred in directing to grant maternity leave to the respondent for the entire 26 weeks, without having regard to the fact that her tenure had culminated on 27.06.2017.

The Bench observed that the Act seeks to regulate the employment of women in certain establishments for given periods before and after child-birth, and, in particular, endeavours to provide for maternity benefit.

“Clearly, the provisions of the 1961 Act seek to invest a woman with a statutory right to take maternity leave and seek payment for the period that she is absent from duty on account of her pregnancy, albeit in accordance with the provisions of the 1961 Act,” the Bench said.

The Court was also of the view that the provisions of the Act do not differentiate between a permanent employee and a contractual employee, or even a daily wage (muster roll) worker.

“The provisions of the 1961 Act do not differentiate between a permanent employee and a contractual employee, or even a daily wage (muster roll) worker. This position stands unambiguously articulated in the judgement of the Supreme Court rendered in Municipal Corporation of Delhi (MCD) v. Femal Workers (Muster Roll) & Anr. (2000) 3 SCC 224“, the Court noted.

Pertinently, the 1961 Act does not tie in the grant of maternity benefit to the tenure of the woman employee”, the Court observed.

The Court noted that the two limiting factors for the grant of maternity benefits are:

-First, the woman-employee should have worked in an establishment of her employer for a minimum period of 80 days in 12 months immediately preceding the date of her expected delivery.

-Second, the maximum period for which she can avail maternity leave benefit cannot exceed 26 weeks, of which, not more than 8 weeks shall precede the date of her expected delivery.

The Court further held : “The benefit granted to the respondent under Section 5 of the 1961 Act should have a full play, in our view, once the prerequisites contained therein are fulfilled by the claimant i.e., the woman-employee”.

“The 1961 Act is a social legislation that should be worked in a manner that progresses not only the best interest of the women-employee but also of the child, both at the pre-natal and post-natal stage. Without financial wherewithal, the interest of women-employee and her child is likely to be severely impacted,” the Court said.

Not interfering withthe order passed by the Tribunal, the Court dismissed the petition.

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Requirement of father’s name of applicant not mandatory for issuing passport, mother’s name sufficient: Delhi HC.

Reporting by: Amit Kashyap.

Allowing the petition wherein the petitioner had sought reissuance of her daughter’s passport without insisting upon the father’s name being mentioned in the application form, Hon’ble Delhi HC in Shalu Nigam v. Regional Passport Officer, Writ Petition (C) No. 155 of 2016 and CM Appls. Nos. 684-685 of 2016, held that “mother’s name is sufficient in certain cases like the present one to apply for passport, especially as a single woman can be a natural guardian and also a parent”.

The petitioner had contended that after her divorce, she had raised her daughter as a single parent since her birth on August 24, 1997 as the biological father had completely abdicated his responsibilities towards her daughter. The passport authorities insistence upon her daughter mentioning her father’s name in the application violated her rights to determine her name and identity. She pointed out that the entire record of Petitioner 2 (daugther) which included her educational certificates and aadhar card, etc. did not bear the name of her father. She submitted that if the directions sought for in the present petition are not issued, her daughter would be compelled to alter her identity that she had been using since her birth as daughter of Petitioner 1 rather than of her biological father.

According to her, through the malafide, arbitrary and discriminatory decision of the passport authorities, Petitioner daughter was being compelled to mention the name of her biological father who had refused to accept her because she is a female child. She emphasised that the respondents had originally in the year 2005 and subsequently in 2011 issued a passport without insisting upon Petitioner 2’s father.

The Court was of the opinion that “the passport authorities can insist upon the name of the biological father in the passport only if it is a requirement in law, like standing instructions, manuals etc. In the absence of any provision making it mandatory to mention the name of one’s biological father in the passport, the authorities cannot insist upon the same. In the present case, there is no legal requirement for insisting upon the father’s name”.

As regards the authorities contention that the computer does not accept the application form without the name of the father being filled up, the Court was informed by the learned Amicus Curiae that the online passport application as updated on 29th January, 2016 provides that in the column of Family Details, only one detail out of the details of father/mother/legal guardian, is mandatory and required to be filled. The Court observed that technology is intended to ease and facilitate transactions and cannot be the basis for creating and defeating anybody’s legal rights. If the only impediment, in way of granting the relief sought by the petitioners, is the software, the same ought to be suitably modified to accept the application of Petitioner 2, if she is otherwise entitled for re-issuance of the passport.

The Court observed that the fact that the authorities had on previous two occasions, in 2005 and 2011 issued passport to Petitioner 2, without insisting on father’s name, makes it evident that the said requirement is not a legal necessity, but only a procedural formality, which cannot be the basis of rejecting her case. Consequently, legally and factually there was no impediment in issuing the passport to Petitioner 2, without mentioning her father’s name.

Therefore the respondents were directed to modify their software and accept her application and issue her a passport without insisting upon mentioning her father’s name.

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क्या है OCI(Overseas Citizenship of India) Card, किसे मिलता है और क्यों?

Reporting By: Amit Kashyap.

विदेश में बसे और वहां की नागरिकता ले चुके भारतीय लोगों के लिए एक खास तरह की सुविधा का नाम है OCI Card. OCI का मतलब है- Overseas Citizenship of India.

दरअसल, दुनिया के कई देशों में दोहरी नागरिकता की सुविधा है, लेकिन भारतीय नागरिकता कानून के मुताबिक अगर कोई व्यक्ति किसी और देश की नागरिकता ले लेता है तो उसे अपनी भारतीय नागरिकता छोडनी पड़ती है, ऐसे लोगों की संख्या लाखों में है जो अमेरिका, ब्रिटेन या कनाडा जैसे देशों की नागरिकता ले चुके हैं लेकिन उनका भारत से जुड़ाव बना हुआ है।

इन लोगों को भारत की नागरिकता छोड़ने के बाद, भारत आने के लिए वीजा लेना पड़ता था, ऐसे ही लोगों की सुविधा का ख्याल करते हुए 2003 में भारत सरकार PIO Card का प्रावधान किया। PIO का मतलब है- Person of Indian Origin. यह कार्ड पासपोर्ट की ही तरह दस साल के लिए जारी किया जाता था।

इसके बाद भारत सरकार ने प्रवासी भारतीय दिवस के मौके पर 2006 में हैदराबाद में OCI Card देने की घोषणा की.

काफ़ी समय तक PIO और OCI कार्ड दोनों ही चलन में रहे लेकिन चार साल पहले 2015 में पीआईओ का प्रावधान ख़त्म करके सरकार ने ओसीआई कार्ड का चलन जारी रखने की घोषणा की.

OCI किसे मिल सकता है?

व्यक्ति या तो पहले भारत का नागरिक रहा हो, या उसके माता या पिता भारतीय नागरिक रहे हों। पाकिस्तान, श्रीलंका, बांग्लादेश, नेपाल, अफगानिस्तान और ईरान कुछ ऐसे देश हैं, जहां के भारतीय मूल के लोगों को यह सुविधा नहीं मिल सकती।

OCI एक तरह से भारत में जीवन भर रहने, काम करने और सभी तरह के आर्थिक लेन-देन करने की सुविधा देता है, साथ ही ओसीआई धारक व्यक्ति जब चाहे बिना वीजा के भारत आ सकता है। ओसीआई कार्ड जीवन भर के लिए मान्य होता है।

भारतीय गृह मंत्रालय की वेबसाइट के मुताबिक, ओसीआई कार्ड के धारकों के पास भारतीय नागरिकों की तरह सभी अधिकार हैं लेकिन चार चीजे वे नहीं कर सकते…

1.चुनाव नहीं लड़ सकते।
2.वोट नहीं डाल सकते।
3.सरकारी नौकरी या संवैधानिक पद पर नहीं हो सकते।
4.खेती वाली जमीन नहीं खरीद सकते।

विदेश से आने वाले लोगों को 90 दिन से अधिक भारत में रहने पर पुलिस में रजिस्ट्रेशन कराना पड़ता है लेकिन ओसीआई कार्ड धारक को इससे छूट मिल जाती है।

OCI से रिलेटेड सभी प्रकार की एप्लीकेशन कि काफी गहराई से चेकिंग गृह मंत्रालय डिपार्टमेंट के द्वारा की जाती है। गृह मंत्रालय के पास इस बात का पूरा अधिकार होता है कि वह ओसीआई के किसी आवेदन को accept ना करें।

अगर किसी व्यक्ति ने OCI Card प्राप्त करने के लिए किसी भी प्रकार की धोखाधड़ी की है या फिर अपनी कोई व्यक्तिगत जानकारी को छुपाकर के OCI Card पाने में सफलता हासिल की है तो सच्चाई पता चलने पर होम मिनिस्ट्री के द्वारा किसी भी OCI Card को invalid किया जा सकता है, साथ ही उस OCI Card को ब्लैक लिस्ट भी कर दिया जा सकता है।

जिस व्यक्ति के पास OCI Card है अगर वह इंडियन कॉन्स्टिट्यूशन यानी की भारतीय संविधान को भला बुरा कहता है या फिर भारतीय संविधान का अपमान करता है अथवा भारतीय संविधान का मजाक उड़ाता है तो होम मिनिस्ट्री के द्वारा उस व्यक्ति के OCI कार्ड को रद्द किया जा सकता है।

कोई भी व्यक्ति इंडिया की डबल सिटीजनशिप हासिल नहीं कर सकता है, क्योंकि हमारा भारतीय संविधान डबल नागरिकता प्राप्त करने की परमिशन नहीं देता है। इसलिए जिन व्यक्तियों के पास OCI Card available है वह इंडिया के नागरिक नहीं होते हैं।

हालांकि जो व्यक्ति OCI के तौर पर रजिस्टर्ड हैं तो उसके 5 साल के बाद इंडिया में परमानेंट नागरिकता पाने के लिए अप्लाई कर सकते हैं। हालांकि अप्लाई करने से पहले उसे तकरीबन 12 महीनों तक इंडिया में रहना जरूरी है।

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Mere registration of criminal case could not be a ground to revoke Arms license: Bombay HC

[The provisions of Arms Act with regard to suspension or cancellation of Arms licence cannot be invoked lightly in an arbitrary manner, said the bench.]

Reporting by : Amit Kashyap.

The Hon’ble Bombay High Court in Criminal writ petition no.594 of 2013, Ajay jayawant bhosle Vs. State of Maharashtra, held that merely because a criminal case is pending against a person, Arms Licence granted to him by the licensing authority cannot be cancelled.

The petitioner contended that during the relevant period he was elected as Municipal Councillor and was working as Upshahar Pramukh of Shiv Sena party in Pune district of the State.

He had applied for licence under Section 13 of Chapter III of the Arms Act for possessing a Fire Arm (Revolver) for self protection. The Commissioner of Police, Pune being a licensing authority had granted licence to the petitioner in the year 2003 bearing licence No. 47/2003. The petitioner purchased one 0.32 crystal pistol bearing no. 194 on 5th August, 2003. It is contended that the Licensing Authority renewed the licence in the year 2005, 2007 and 2009.

On 31st December, 2010 petitioner was served with a show-cause notice by the Police Commissioner, Pune intimating him as to why licence issued in favour of the petitioner should not be cancelled/revoked on the grounds mentioned in the said show-cause notice. On 10 th January, 2011 and 13th January, 2011 the petitioner filed reply to the said show-cause notice. On 24th January, 2011 the petitioner appeared in person before the Licensing Authority. He was heard by the Licensing Authority. The Licensing Authority by an order dated 8 th February, 2011 revoked the licence.

Section 17(3)(b) of Arms Act authorises the licensing authority to cancel or revoke the licence for the security of public peace or for public safety. The provisions indicate that in case the licensing authority is subjectively satisfied that in a given case if continuation of licence endangers public peace or public safety then the Licensing authority is empowered to cancel or revoke the licence. In the present case the licensing authority had exercised the said power.

The show-cause notice refers to cases right from 1991 to 2006 and 3 cases of preventive action taken against the petitioner. The licensing authority had also observed in the show-cause notice that the registration of criminal case indicated that the petitioner was of criminal mind set. It was further observed that law and order problem was likely to arise. The licensing authority was of the opinion that due to law and order situation and danger to public peace, the licence granted in favour of the petitioner was required to be cancelled.

Allowing the Petition, the Bench has held as follows:

The right to life and liberty are guaranteed under Article 21 of the Constitution of India. Arms licence is granted for personal safety and security after due enquiry by the authorities in accordance with provisions contained in the Arms Act, 1959.

The provisions of Arms Act with regard to suspension or cancellation of Arms licence cannot be invoked lightly in an arbitrary manner. The provisions of the Arms Act particularly Section 13 to 17 indicate that once a licence is granted under the Act, the same shall be renewed from time to time unless there exist a ground of refusal as enumerated under Section 14 of the Act.

Protection to life, property of citizen is responsibility of the State. It is only when person apprehends that machinery of State would not come to his help for protection, he/she applies for licence under the Act. The provisions of Section 17 A of the Arms Act indicate that arms licence can be cancelled or suspended if the licensing authority finds it necessary for the security of public peace or public safety.

Merely because a criminal case is pending, the provisions of Section 17 of the Arms Act would not be attracted. Such provisions would be attracted in case the licensing authority finds that continuance of licence is detrimental to public peace or public security and safety. But the authority concerned will have to record a finding that how and under what circumstances and in what manner possession of arms licence could be contrary to the provisions of Section 17 B of the Arms Act. Each case is required to be considered on its own merits.

Nothing was placed before us by the respondents to indicate that the petitioner had misused the licenced weapon at any point of time in past. The order of revocation of license refers to two criminal cases registered against the petitioner. In the facts we find that mere registration of criminal case/cases could not be a ground to revoke the license. The order shall indicate clearly that continuance of licence would be against public peace, safety and security.

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