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Anant Prakash Sinha @ Anant Sinha Vs. State of Haryana & ANR.
1. Despite completion of a decade from the date of solemnisation of the marriage and in spite of two off springs in the wedlock, neither the time nor the expansion of family nor the concern for the children could cement the bond or weld the affinity between the appellant-husband and the wife, the 2nd respondent herein, as a consequence of which she was compelled to set the criminal law in motion by lodging FIR No. 376 dated 23.11.2013 which was registered for the offences punishable under Section 498A/323/34 of the Indian Penal Code (IPC) against the husband and the mother-in-law alleging that the husband was insistent upon getting mutual divorce and on her resistance, he had physically assaulted her and deprived her of basic facilities of life.
All these allegations had the foundation in demand of dowry and non-meeting of the same by the family members of wife. After due investigation, the prosecuting agency placed the charge-sheet against the husband alone for the offences punishable under Section 498A and 323 IPC before the learned Judicial Magistrate 1st Class, Gurgaon who eventually vide order dated 04.04.2009 framed charges against the husband for commission of the said offences.
2. When the matter was pending before the learned Magistrate, an application dated 31.07.2014 under Section 216 of the Code of Criminal Procedure (CrPC) was filed by the informant-wife for framing an additional charge under Section 406 IPC against the husband and mother-in-law, Renuka Sinha.
It was stated in the said application that there was an express complaint with regard to misappropriation of the entire stridhan and other articles and hence, the accused persons had committed breach of trust, but no charge-sheet was filed in respect of the said offence. It was contended that in her statement recorded under Section 161 CrPC, she had categorically stated about misappropriation of the stridhan by the family members of her husband.
The learned Magistrate took note of the materials, namely, stridhan list, complaint addressed to D.C.P. (East), Gurgaon, statements recorded under Section 161 CrPC and letter dated 16.11.2013 from Women Cell, D.C.P. (East), Gurgaon and came to hold that in view of the specific allegations regarding misappropriation of her entire stridhan by the husband and the other statements recorded during investigation, a prima facie case for criminal breach of trust was made out and, accordingly, allowed the application under Section 216 CrPC against the husband and the mother-in-law. Be it noted, a prayer had been made to add the charge for the offence under Section 120B IPC also but the same was not accepted by the learned Magistrate.
3. The order passed by the learned Magistrate came to be assailed in Criminal Revision No. 5 of 2015 before the learned Additional Sessions Judge, Gurgaon and it was contended in the revision that the mother-in-law was not charge-sheeted by the police but the trial court had directed to frame the charge against her and, therefore, the whole approach was erroneous. It was also urged that there was no material to make out a prima facie case under Section 406 IPC against the husband.
The stand put forth by the revisionist was combatted by the prosecution as well as by the informant on the ground that the trial court has power to add or alter any charge under Section 216 CrPC and, therefore, no exception could be taken to the order passed by the learned Magistrate. The revisional court dwelt upon the law pertaining to alteration and addition of charges and came to hold that the framing of the charge against mother-in-law was unsustainable but the framing of additional charge under Section 406 IPC against the husband, the appellant herein, could not be faulted. Being of this view, the revisional court partly allowed the revision petition by setting aside the order of framing of charge against the mother-in-law.
4. The defensibility of the aforesaid order was called in question by the husband by preferring a petition under Section 482 CrPC in the High Court of Punjab and Haryana forming the subject matter of CRL.M. No. 24510 of 2015. The soundness of the order was attacked by placing reliance on the principles as elucidated in CBI v. Karimullah Osan Khan and Hasanbhai Valibhai Qureshi v. State of Gujarat and others. As is demonstrable from the impugned order, the learned single Judge appreciating the ratio of the aforesaid decisions has opined that the court can exercise power of addition or modification of charge under Section 216 CrPC on the basis of material before the court.
The High Court has also observed that the trial court has spelt out the reasons that have necessitated for addition of the charge and hence, the impugned order did not warrant any interference. To buttress the view, the High Court has drawn support from the authority in Jasvinder Saini and others v. State (Government of NCT of Delhi).
5. We have heard Mr. Amarendra Sharan, learned senior counsel appearing for the appellant and Mr. Sanjay Kumar Visen, learned counsel for the respondent-State.
6. It is submitted by Mr. Sharan, learned senior counsel for the appellant that the High Court would have been well within the domain of its jurisdiction in exercise of power under Section 482 CrPC in setting aside the orders passed by the courts below, for the Magistrate has no power under Section 216 CrPC to alter or modify the charge on the basis of an application filed by the informant.
It is his further submission that the trial court could have altered the charge if some evidence had come on record but not on the basis of the material that was already on record. Additionally, it is urged by Mr. Sharan that materials on record do not remotely attract any of the ingredients of the offence under Section 406 CrPC and, therefore, addition of charge in respect of the said offence is wholly unsound and faulty. It has also been argued by Mr. Sharan that the charges could not have been added on the basis of an application filed by the informant, for such an application as required in law is to be filed only by the Public Prosecutor.
In support of the aforesaid submissions, he has drawn inspiration from the authorities in Harihar Chakravarty v. State of West Bengal, Hasanbhai Valibhai Qureshi (supra), Jasvinder Saini and others (supra), Umesh Kumar v. State of Andhra Pradesh and another, Karimullah Osan Khan (supra) and orders passed by the High Court of Punjab and Haryana in Poonam and anr. V. State of Punjab and Anant Sinha v. State of Haryana and ors..
7. Mr. Visen, learned counsel for the respondent-State, has supported the order passed by the High Court and submitted that there is no prohibition under Section 216 CrPC to alter or add a charge prior to the recording of evidence if the court is moved for the said purpose and it is satisfied that charge framed by it deserves to be altered or an additional charge is required to be added.
According to him, the order passed by the High Court being totally correct and impenetrable, there is no reason to interfere with the same in exercise of jurisdiction under Article 136 of the Constitution of India. Learned counsel would further contend that when the Magistrate has jurisdiction to rectify the mistake by adding or altering the charge, he can hear the counsel for the parties and do it suo motu and an application either filed by the Public Prosecutor or by the informant is only to bring the said facts to his notice and in any case, that would not invalidate the order.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."
9. The aforesaid provision has been interpreted in Hasanbhai Valibhai Qureshi (supra) wherein the Court has observed:- "Section 228 of the Code in Chapter XVII and Section 240 in Chapter XIX deal with framing of the charge during trial before a Court of Session and trial of warrant cases by Magistrates respectively. There is a scope of alteration of the charge during trial on the basis of materials brought on record. Section 216 of the Code appearing in Chapter XVII clearly stipulates that any court may alter or add to any charge at any time before judgment is pronounced. Whenever such alteration or addition is made, the same is to be read out and informed to the accused."
10. In the said case, reference was made to Kantilal Chandulal Mehta v. State of Maharashtra wherein it has been ruled that Code gives ample power to the courts to alter or amend a charge provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about the charge or in not giving him full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred against him.
Placing reliance on the said decision, it has been opined that if during trial the trial court on a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so, and there can be no legal bar to appropriately act as the exigencies of the case warrant or necessitate.
11. In Jasvinder Saini and others (supra), the charge- sheet was filed before the jurisdictional Magistrate alleging commission of offences under Sections 498-A, 304-B, 406 and 34 IPC against the appellant Nos. 1 to 4 therein. A supplementary charge-sheet was filed in which the appellant Nos. 5 to 8 therein were implicated for the case to which Section 302 IPC was also added by the investigating officer. After the matter was committed to the Court of Session, the trial court came to the conclusion that there was no evidence or material on record to justify framing of a charge under Section 302 IPC, as a result of which charges were framed only under Sections 498-A, 304-B read with Section 34 IPC.
When the trial court was proceeding with the matter, this Court delivered the judgment in Rajbir alias Raju and anr. v. State of Haryana and directed that all the trial courts in India to ordinarily add Section 302 to the charge on Section 304- B IPC so that death sentences could be imposed in heinous and barbaric crimes against women. The trial court noted the direction in Rajbir (supra) and being duty-bound, added the charge under Section 302 IPC to the one already framed against the appellant therein and further for doing so, it placed reliance on Section 216 CrPC.
The said order was assailed before the High Court which opined that the appearance of evidence at the trial was not essential for framing of an additional charge or altering a charge already framed, though it may be one of the grounds to do so. That apart, the High Court referred to the autopsy surgeon which, according to the High Court, provided prima facie evidence for framing the charge under Section 302 IPC. Being of this view, it declined to interfere with the order impugned. This Court adverting to the facts held thus:- "It is common ground that a charge under Section 304-B IPC is not a substitute for a charge of murder punishable under Section 302.
As in the case of murder in every case under Section 304-B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304-B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters.
If the main charge of murder is not proved against the accused at the trial, the court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304-B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients.
The trial court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir case. The High Court no doubt made a half-hearted attempt to justify the framing of the charge independent of the directions in Rajbir case (supra), but it would have been more appropriate to remit the matter back to the trial court for fresh orders rather than lending support to it in the manner done by the High Court."
12. It is appropriate to note here, the Court further observed that the annulment of the order passed by the court would not prevent the trial court from re-examining the question of framing a charge under Section 302 IPC against the appellant therein and passing an appropriate order if upon a prima facie appraisal of the evidence adduced before it, the trial court comes to the conclusion that there is any room for doing so. In that context, reference was made to Hasanbhai Valibhai Qureshi (supra).
13. In Karimullah Osan Khan (supra), the Court was concerned with the legality of the order passed by the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 for Bomb Blast Case, Greater Bombay rejecting the application filed by the Central Bureau of Investigation (for short "CBI") under Section 216 CrPC for addition of the charges punishable under Section 302 and other charges under the IPC and the Explosives Act read with Section 120-B IPC and also under Section 3(2) of the Terrorist and Disruptive Activities (Prevention) Act, 1987.
"17. Section 216 CrPC gives considerable power to the trial court, that is, even after the completion of evidence, arguments heard and the judgment reserved, it can alter and add to any charge, subject to the conditions mentioned therein. The expressions "at any time" and before the "judgment is pronounced" would indicate that the power is very wide and can be exercised, in appropriate cases, in the interest of justice, but at the same time, the courts should also see that its orders would not cause any prejudice to the accused.
18. Section 216 CrPC confers jurisdiction on all courts, including the Designated Courts, to alter or add to any charge framed earlier, at any time before the judgment is pronounced and sub-sections (2) to (5) prescribe the procedure which has to be followed after that addition or alteration. Needless to say, the courts can exercise the power of addition or modification of charges under Section 216 CrPC, only when there exists some material before the court, which has some connection or link with the charges sought to be amended, added or modified.
In other words, alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the court. (See Harihar Chakravarty v. State of W.B. (supra) Merely because the charges are altered after conclusion of the trial, that itself will not lead to the conclusion that it has resulted in prejudice to the accused because sufficient safeguards have been built in Section 216 CrPC and other related provisions."
14. At this juncture, we have to appropriately recapitulate the principles stated in Harihar Chakravarty (supra). In the said case, a complaint was filed charging the appellant and another for the offences punishable under Sections 409, 406, 477 and 114 of the IPC. The complainant and his witnesses were examined and on the basis of said evidence, the learned Magistrate had framed a charge under Section 409 IPC against the appellant.
The appellant entered upon his defence and after the trial, the Magistrate acquitted the appellant and the other accused under Section 409 IPC. The complainant filed a criminal revision before the High Court which set aside the order of acquittal and remanded the matter to the Magistrate for decision for amendment of the charge by examining appropriate evidence.
"8. This was a private prosecution in which the complainant came forward with a story that the never ordered the appellant to purchase these shares and that therefore the shares did not belong to him, and he had no interest in them or title to them. In fact his case was that the shares were never purchased by the appellant under his instructions. All that was found to be false and it was found that he did order them to be purchased and that therefore the shares were his.
The order which was made by the learned Judge in effect meant that the complainant should abandon his original story to lay claim to the shares and prosecute the Appellant for another and distinct offence which could only arise on a different set of facts coming into existence after the purchase of the shares.
The appellant might or might not be guilty of this other offence, but he is certainly innocent of the offence with which he was charged and for which he was fully tried and therefore he is entitled to an acquittal and the learned Judge had no power to set aside that order so long as he agreed, as he did, that the appellant was not guilty of the offence with which he was charged.
Once a charge is framed and the accused is found not guilty of that charge an acquittal must be recorded under Section 258(1) of the Criminal Procedure Code. There is no option in the matter and we are of the opinion therefore that the order setting aside the acquittal was in any event bad.
9. Next as regards the direction to alter the charge so as to include an offence for which the appellant was not originally charged, that could only be done if the trial court itself had taken action under Section 227 of the Criminal Procedure Code before it pronounced judgment. It could only have done so if there were materials before it either in the complaint or in the evidence to justify such action.
10. The complaint affords no material for any such case because it is based on the allegation that the shares did not belong to the complainant and that in fact they were never purchased. The learned Judge observed that the contention was that the shares belonged to the complainant and were dishonestly pledged by the appellant with the Nath Bank. We do not find even a word about this either in the complaint or in the examination of the complainant."
15. After so stating, the Court opined that there was no material on which the trial court could have amended the charge under Section 227 CrPC and the learned Judge therefore had no power to direct an amendment and a continuation of the same trial as he purported to do.
The purpose of laying stress on the said authority is that the trial court could issue a direction for alteration of the charge if there were materials before it in the complaint or any evidence to justify such action. On the aforesaid three-Judge Bench decision, it is quite vivid that if there are allegations in the complaint petition or for that matter in FIR or accompanying material, the court can alter the charge. In Thakur Shah v. King Emperor (supra), what the Court has held is that alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the court.
It does not necessarily mean that the alteration can be done only in a case where evidence is adduced. We may hasten to clarify that there has been a reference to the decision rendered in Harihar Chakravarty (supra) but the said reference has to be understood in the context. Section 216 CrPC, as is evincible, does not lay down that the court cannot alter the charge solely because it has framed the charge. In Hasanbhai Valibhai Qureshi (supra), it has been stated there is scope for alteration of the charge during trial on the basis of material brought on record. In Jasvinder Saini and others (supra), it has been held that circumstances in which addition or alteration of charge can be made have been stipulated in Section 216 CrPC and sub-sections (2) to (5) of Section 216 CrPC deal with the procedure to be followed once the court decides to alter or add any charge.
It has been laid down therein that the question of any such addition or alteration generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court. If the said decision is appositely understood, it clear lays down the principle which is in consonance with Harihar Chakravarty (supra).
16. From the aforesaid, it is graphic that the court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance.
Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 CrPC.
17. In addition to what we have stated hereinabove, another aspect also has to be kept in mind. It is obligatory on the part of the court to see that no prejudice is caused to the accused and he is allowed to have a fair trial. There are in-built safeguards in Section 216 CrPC. It is the duty of the trial court to bear in mind that no prejudice is caused to the accused as that has the potentiality to affect a fair trial. It has been held in Amar Singh v. State of Haryana that the accused must always be made aware of the case against them so as to enable him to understand the defence that he can lead.
"25. Further, the defect must be so serious that it cannot be covered under Sections 464/465 CrPC, which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the charges has led to a failure of justice, this Court must have regard to whether an objection could have been raised at an earlier stage during the proceedings or not.
"27. Therefore ... unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory." A similar view has been reiterated in Abdul Sayeed v. State of M.P."
18. We have reproduced the aforesaid passages by abundant caution so that while adding or altering a charge under Section 216 CrPC, the trial court must keep both the aforestated principles in view. The test of prejudice, as has been stated in the aforesaid judgment, has to be borne in mind.
19. Presently to the second aspect. Submission of Mr. Sharan is that the learned Magistrate could not have entertained the application preferred by the informant, for such an application is incompetent because it has to be filed by the public prosecutor. In this regard, he has laid stress on the decision in Shiv Kumar v. Hukam Chand and another.
In the said case, the grievance of the appellant was that counsel engaged by him was not allowed by the High Court to conduct the prosecution in spite of obtaining a consent from the concerned Public Prosecutor. The trial court had passed an order to the extent that the advocate engaged by the informant shall conduct the case under the supervision, guidance and control of the Public Prosecutor. He had further directed that the Public Prosecutor shall retain with himself the control over the proceedings.
"13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well.
If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.
14. It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact that he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter."
20. Being of this view, this Court upheld the order passed by the High Court. The said decision is, in our opinion, is distinguishable on facts. The instant case does not pertain to trial or any area by which a private lawyer takes control of the proceedings. As is evident, an application was filed by the informant to add a charge under Section 406 IPC as there were allegations against the husband about the criminal breach of trust as far as her stridhan is concerned.
It was, in a way, bringing to the notice of the learned Magistrate about the defect in framing of the charge. The court could have done it suo motu. In such a situation, we do not find any fault on the part of learned Magistrate in entertaining the said application. It may be stated that the learned Magistrate has referred to the materials and recorded his prima facie satisfaction. There is no error in the said prima facie view.
We also do not perceive any error in the revisional order by which it has set aside the charge framed against the mother-in-law. Accordingly, we affirm the order of the High Court in expressing its disinclination to interfere with the order passed in revision. We may clarify that the entire scrutiny is only for the purpose of framing of charge and nothing else. The learned Magistrate will proceed with the trial and decide the matter as per the evidence brought on record and shall not be influenced by any observations made as the same have to be restricted for the purpose of testing the legal defensibility of the impugned order.
21. Consequently, the appeal, being devoid of merit, stands dismissed.

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Reimbursement of outpatient mental health and counseling expenses by the California Victim Compensation Board (Board) is based on the definitions, session limitations, documentation requirements and other criteria guidelines (guidelines) set forth below.
These guidelines are subject to the maximum reimbursement provisions of Government Code §13957 and other statutes governing the administration of the Board codified by Government Code §13900 et seq.
An individual mental health counseling session lasting less than 45 minutes is one-half session.
An individual mental health counseling session lasting 45 to 74 minutes is one session.
An individual mental health counseling session lasting 75–104 minutes is one and one-half sessions.
An individual mental health counseling session lasting 105–120 minutes is two sessions.
One group mental health counseling session is the equivalent of one-half of an individual mental health counseling session of the same length.
Case management is a service that assists claimant’s access to needed medical, educational, social, prevocational, rehabilitative, or other community services. The service activities may include, but are not limited to, communication, referral and coordination.
Telehealth is delivering mental health treatment via communication technologies while the patient is at the originating site and the mental health provider is at a distant site. Services provided via telehealth modality must meet the statutory and regulatory requirements established by the licensing board overseeing the treating mental health provider.
Direct Victims: An eligible victim may be reimbursed for up to 40 initial mental health counseling sessions. The Board may reimburse up to 5 case management sessions, which will not be counted as part of the mental health session limit. The Board may reimburse up to five (5) telehealth therapy sessions, which will be counted as part of the mental session limit.
Derivative Victims/Minor Witnesses/Good Samaritans: An eligible derivative victim, minor witness or Good Samaritan may be reimbursed under these guidelines for the number of initial sessions set forth in one of the categories that follow. A derivative victim eligible in more than one category may use only the most favorable category. The Board may reimburse up to 5 case management sessions for claimants, which will not be counted as part of the mental health session limit. The Board may reimburse up to five (5) telehealth therapy sessions, which will be counted as part of the mental session limit.
An adult derivative victim may receive up to 15 mental health counseling sessions.
A minor derivative victim, or minor witness, or Good Samaritan may receive up to 30 mental health counseling sessions.
Each derivative victim who is the direct victim’s primary caretaker at the time of the crime may receive up to 30 mental health counseling sessions, for up to two primary caretakers.
Each derivative victim who is a post-crime primary caretaker may receive up to 15 mental health sessions for up to two post-crime primary caretakers. The initial sessions must be for benefit of the direct victim pursuant to Government Code §13957(a)(2)(B)(i).
If the qualifying crime resulted in the death of the victim, a surviving parent, sibling, child, spouse, fiancé, fiancée, grandparent, grandchild, or registered domestic partner as defined in Family Code §297, may receive up to 40 mental health counseling sessions.
A victim, derivative victim, minor witness or Good Samaritan who is eligible for outpatient mental health counseling expenses may be reimbursed for the service provider’s first three mental health counseling sessions within the session limit without completion of a Treatment Plan.
If the claimant is the post-crime primary caretaker.
A declaration of the percentage of the treatment that is necessary as a direct result of the qualifying crime.
Requests for reimbursement beyond those described in Section II require submission of an Additional Treatment Plan and approval of additional treatment by the Board. The initial Treatment Plan must be submitted with the Additional Treatment Plan if the service provider is the continuing therapist. The Additional Treatment Plan should not be completed before the claimant is within eight (8) sessions from reaching his or her authorized session limit and must be submitted within 90 days after the date a bill for sessions that exhaust the authorized session limit is received by the Board. If the Additional Treatment Plan and Treatment Plan are not submitted within the 90 day timeframe, bills for all dates of service that exceed the authorized session limit will be returned and will not be considered for payment. However, bills for dates of service provided after the Additional Treatment Plan and Treatment Plan are received may be considered for payment, subject to approval of the Additional Treatment Plan. If there is a change of therapists within the same provider organization, the succeeding therapist is not considered a new provider and must assess the claimant’s therapeutic progress since treatment began with the organization.
If the claimant is a derivative victim of a surviving direct victim, a list and description of the therapeutic interventions for the claimant that are aimed at alleviating the direct victim’s symptoms.
The Board may require the submission of any other information required to determine whether the treatment will best aid the victim, derivative victim, minor witness, or Good Samaritan and is necessary as a direct result of the qualifying crime including, but not limited to, legible session notes pursuant to California Code of Regulations § 649.7(b)(1).
The Board shall not reimburse additional outpatient mental health counseling sessions unless the requirements of Section V, VI VII, or VIII are met; or, in the Board's sole discretion, it determines that additional treatment will best aid the victim, derivative victim, minor witness, or Good Samaritan and is necessary as a direct result of the qualifying crime.
When evaluating a request for additional sessions, objective assessment measures with demonstrated reliability and validity in peer review literature will be given significant weight.
When evaluating a request for additional treatment, independent corroborative information may be given significant weight.
Notwithstanding Section V, subsections (b)(3) and (d)(2), Section VI, subsections (a)(3) and (c)(2), Section VII, subsections (a)(2) and (b), and Section VIII, subsections (a)(2) and (b), if inadequate progress has been shown in treatment, the Board may, in its sole discretion, authorize additional treatment with a different treatment modality, method, or provider.
Reimbursement made in excess of the limits in Government Code § 13957(a)(2)(A) or (B) must comply with this section and must be based on a finding that dire or exceptional circumstances require more extensive treatment.
Reimbursement for additional mental health counseling sessions for a victim beyond those identified in Section II may be approved if an Additional Treatment Plan is submitted and the circumstances of the application that demonstrate the need for additional treatment meets the criteria listed in subsections (b) and (c) below.
The perpetrator is released from custody. To be reimbursed, the mental health counseling must be initiated within three months of learning that the perpetrator will be, or was, released from custody.
The treatment must be focused on symptoms, behaviors, or beliefs that are directly attributable to the qualifying crime and could reasonably be remediated by the proposed treatment.
The treating therapist’s percentage estimation of overall treatment that has been completed to meeting the claimant’s treatment goal(s) in relation to the qualifying crime.
The alleged suspect persists in making uninvited and unwelcome contact with the victim that is not authorized by a court.
The Board determines that the proposed treatment is reasonably likely to successfully overcome the factors that hindered the progress of treatment and treatment has significantly progressed.
Additional mental health sessions via telehealth modality beyond the initial limit of five (5) sessions may be allowed if the claimant requires telehealth due to clinical necessity or lives in an area where no other clinical resources are available.
The Additional Treatment Plan for the derivative victim demonstrates improvement in the victim’s symptoms, behaviors, or beliefs attributable to the derivative victim’s treatment.
If the Board previously approved reimbursement for additional sessions under subsection (a), (b), or (c) any subsequent requests are stringently reviewed and may be reimbursed only if the Board determines that the proposed treatment is reasonably likely to successfully overcome the factors that hindered the progress of treatment and treatment has significantly progressed.
The minor witness is scheduled to testify as a witness in any criminal or dependency proceeding related to the qualifying crime. To be reimbursed, the mental health counseling must be initiated within three months of being scheduled to testify.
If the Board previously approved reimbursement for additional sessions under subsection (a), any subsequent requests are stringently reviewed and may be reimbursed only if the Board determines that the proposed treatment is reasonably likely to successfully overcome the factors that hindered the progress of treatment and treatment has significantly progressed.
The Good Samaritan is scheduled to testify as a witness in any criminal or dependency proceeding related to the qualifying event. To be reimbursed, the mental health counseling must be initiated within three months of being scheduled to testify.


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If the trustee refuses to pay any county warrant or legal demand, it is a Class C misdemeanor for which the trustee may be removed from office unless such disbursement would have exhausted the funds on hand. T.C.A. § 8‑11‑105. The trustee's sureties (on the trustee's bond) may be held liable if the county suffers losses as a result of the trustee’s failure to pay money owing by the county or to collect money due to the county. T.C.A. § 8‑11-106. This is also true if the trustee pays claims in the wrong priority. Howard v. Horner, 30 Tenn. 532 (1851).
If a trustee fails to charge or collect from those liable, and if by using reasonable diligence could have collected fees, commissions, or other compensation to which the county is entitled, or if the trustee fails to present the statement of receipts, then the trustee will be held individually liable to the county for the amount which should have been collected. This amount will be charged to the trustee and will be deducted from the trustee's salary or will be collected from the trustee as a personal debt. T.C.A. § 8‑22‑105.
A trustee who makes or conspires with anyone, in any manner, to make a false or incorrect exhibit of receipts, statement of expenses, or statement of fact required under the statutes relating to accounting for fees, commits a Class E felony and upon conviction may be fined and imprisoned. T.C.A. § 8‑22‑106.
If the trustee fails or refuses to furnish the county mayor with any vouchers or papers deemed necessary by the county mayor for perfecting any settlement with any person accountable for county revenue, refuses to receive county warrants in payment of county taxes, or refuses to settle or pay as required by law, the circuit court, upon motion, will impose a $500 forfeiture upon the trustee. T.C.A. § 8-11-108. This forfeiture could be paid from the surety on the trustee's bond. According to this provision the trustee is required to accept a county warrant as payment for county taxes.

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§ 1264. Selection of persons to receive monies.
§ 1265. Priorities and duration of attendance.
§ 1266. Compensation and allowances.
§ 1267. Submission of reports.
§ 1268. Authorization of appropriations.
There is hereby established the Truk District Chuuk State Travel Fund.
Source: TDL 22-27, § 1 (901), modified.
The purpose of the Truk District Chuuk State Travel Fund is to enable members of the Truk District Chuuk State Legislature, Magistrates of municipalities, members of municipal councils, and other leaders in Truk District Chuuk State to travel outside of Truk District Chuuk State for the purposes herein described.
Source: TDL 22-27, § 1 (902), modified.
(5) Presentations of the views of the people of Truk District Chuuk State on important public issues to the High Commissioner President of the Federated States of Micronesia, the Congress of the Federated States of Micronesia, and other executive and legislative officials whose determinations on such issues will affect the people of Truk District Chuuk State.
Source: TDL 22-27, § 1 (903), modified.
(1) The President and the Speaker of the Truk District Chuuk State Legislature is are hereby authorized to select the persons who shall be entitled to receive monies, subject to the limitations of this Chapter. The President and the Speaker shall endeavor to select different persons to attend the various aforementioned functions.
(2) If the President and the Speaker deems it necessary, he they may also select an interpreter to accompany the person or persons attending a particular function. Such interpreter shall be entitled to receive monies under this Chapter in the same manner as other persons entitled to receive such monies.
Source: TDL 22-27, § 1 (904), modified.
The President and the Speaker of the Truk District Legislature shall determine priorities from among the various functions which persons are hereby authorized to attend, in order that the monies appropriated pursuant to this Chapter shall enable attendance at the functions of most benefit to Truk District Chuuk State. He shall also determine the length of time for which a person attending such function shall be entitled to receive monies from the Truk District Chuuk State Travel Fund.
Source: TDL 22-27, § 1 (905), modified.
The President and the Speaker is are hereby authorized to direct the District Treasurer State Director of the Treasury to provide per diem, at standard Trust Territory Chuuk State per diem rates, and transportation. Upon the presentation of receipts by the recipient of the travel allowance showing necessary expenditures exceeding the applicable per diem rate, the President and the Speaker shall direct the District Treasurer State Director of the Treasury to reimburse to that person the amount by which the necessary expenditures, as shown on said receipts, exceed the per diem paid to said person. The determination of whether a particular expenditure was necessary shall be made by the President and the Speaker.
Source: TDL 22-27, § 1 (906), as amended by TDL 25-24, § 1 (906) and TDL 27-1-24, § 4 (906), modified.
Editor's note: TDL 27-1-24 that amended this Section was signed into law by the Governor on June 19, 1978.
Each person receiving money from the Truk District Chuuk State Travel Fund shall submit a written report to the Legislature on the function which he attended. He shall, if requested by the Legislature, also make an oral report on the function to the Legislature or such committee.
Source: TDL 22-27, § 1 (907), modified.
There is hereby authorized an annual appropriation out of the General Fund of the Truk District Legislature Chuuk State, not otherwise appropriated, of such sum as the Legislature deems necessary to carry out the purposes of this Chapter.
Source: TDL 22-27, § 1 (908), modified.


For decades, noncompliant taxpayers who met certain criteria were able to avoid criminal prosecution by making a voluntary disclosure to the IRS. On November 20, 2018, IRS overhauled its voluntary disclosure practice in guidance that altered both the procedures for making a disclosure and the civil penalty framework that would apply to taxpayers who come forward. Guinevere Moore will be presenting a panel on Updated Voluntary Disclosure Practices: Is this the Correct Path for your Noncompliant Client? at the Federal Bar Association Tax Law Conference in Washington, D.C. on March 8, 2019.
Guinevere Moore was quoted in Tax Notes, where she discussed the potential issues that may result from the new IRS voluntary disclosure rules. Read the article here.
Guinevere Moore was quoted in Bloomberg Tax regarding the challenges self-represented taxpayers face in the aftermath of the government shutdown. Read the article here.
On January 30th, Guinevere Moore will speak in a live webinar called "Partnership Representatives: New IRS Final Regulations Under Section 6223 and Challenges for Pass-Through Entities." To learn more and register for a discount, please visit the page.
Guinevere Moore was quoted in Tax Notes, where she discussed the changes to the rules surrounding partnership representatives. Read the article here.
Guinevere Moore was quoted in Bloomberg Tax, where she discussed the difficulty taxpayers face when trying to provide the substantiation the IRS requires. Read the article here.
Guinevere Moore was quoted in Bloomberg Tax, where she speculated about the top legal issues that will come into play in 2019, specifically challenges to IRS penalty authority. Read the article here.
Guinevere Moore was quoted regarding the effect of the new IRS disclosure policy on virtual currency holders in a recent Tax Notes article, based on the discussion she participated in at the ABA's 35th Annual National Institute on Criminal Tax Fraud and Eighth Annual National Institute on Tax Controversy. Read the article here.
-December 13th: Guinevere will appear on "Civil Tax Workshop: Responding to Summonses," where she will discuss how to respond to a summons.
-December 14th: Jenny will discuss the implications of United States v. Marinello on "Sections 371 and 7212(a) - Life After Marinello."
-December 15th: Guinevere will talk about the income tax consequences of owning, trading, and investing in cryptocurrency and enforcement issues facing the IRS, as well as enforcement under the Bank Secrecy Act (BSA) on the two-part panel "What Everyone Needs to Know About Cryptocurrency: Part One: Tax Treatment of Cryptocurrency Transactions; Part Two: Enforcement When Cryptocurrency Transactions Go Wrong."
Guinevere Moore was interviewed in the December 2018 issue of the ABA Journal, where she discussed the "critical steps" innocent spouses should take to protect future income and avoid tax liability. Read the article here.
Jenny Johnson Ware was interviewed on Trump, Inc., a production of ProPublica and WNYC. In this episode, she discussed tax audits and the IRS Global High Wealth group. Listen to the episode here.
On November 16th, Jenny Johnson Ware will be speaking on a panel at Practising Law Institute (PLI)'s Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings 2018 conference in Chicago. Jenny will be discussing the limits of the evolving economic substance and business purpose doctrines. See the program here.
On October 5th, Guinevere Moore will be speaking on two panels at the ABA Section of Taxation's 2018 Fall Meeting. She will discuss the statutes of limitations on IRS examinations and the ethical issues regarding partnership representatives. You can see more details here.
Jenny Johnson Ware was interviewed on The Takeaway, by Public Radio International, WNYC, and WGBH, where she discussed President Trump and his father's financial practices. Listen to the conversation here.
Jenny Johnson Ware was quoted in Bloomberg about the questions surrounding the financial practices of the Trump Organization. Read the article here.
Jenny Johnson Ware was quoted in The Washington Post about the irregular practices of the Trump Organization. Read the article here.
Jenny Johnson Ware was quoted in The New York Times about the financial practices of Michael Cohen and the Trump Organization. Read the article here.
Guinevere Moore and Jenny Johnson Ware recently published an article in the ABA Tax Times about why wives whose husbands are accused of tax evasion should hire their own lawyers. Read the article here.
Our partners, Jenny Johnson Ware and Guinevere Moore, have been named as two of Chicago's Notable Women Lawyers 2018 by Crain's. Read more at this link.
Guinevere Moore was recently quoted in Bloomberg Tax, where she discussed the key takeaways from the Tax Court's second quarter 2018 rulings. Read the article here.
Guinevere Moore was quoted in an article in The Washington Post regarding criminal tax violations. Read the article here.
Jenny Johnson Ware was interviewed on the Rachel Maddow Show about potential legal consequences facing the Trump Foundation and its donors. Watch the clip here.
Jenny Johnson Ware was quoted in an article in The New York Times regarding potential legal consequences facing the Trump Foundation. Read the article here.
Jenny Johnson Ware was quoted in an mLex US Tax Watch article, where she discussed the pending proceeding requirement in regards to Marinello v. United States. Read more at this link (subscription required).
At the ABA Section of Taxation May Meeting, Jenny Johnson Ware will participate as a panelist in the "Ethics Issues in Criminal Representations and Fraud Examinations" discussion, on Friday, May 11, 2018. On Saturday, May 12, she will moderate a conversation called "Musings on Marinello" with Matthew S. Jenner, the lawyer who argued the Marinello case before the Supreme Court. See the program details here.
In February 2018, Jenny Johnson Ware was elected to the Board of Regents of the American College of Tax Counsel (ACTC). Learn more here.
Jenny Johnson Ware was quoted in an mLex US Tax Watch article about the impact of Marinello v. United States.
"People looking at this decision need to understand how the IRS works to appreciate how vague this line is that the court tried to draw," said Jenny Johnson Ware, a tax litigator with Johnson Moore in Chicago. "There are so many things that the IRS does in terms of processing and reviewing tax returns, assessing the liabilities and collecting taxes that trying to figure out which of these activities fall on which side of the line here is going to be very challenging."
Johnson Ware, who authored an amicus curiae brief in the Marinello case on behalf of the American College of Tax Counsel, said it will be interesting to see how the IRS and DOJ approach this question. "Are they going to restrict tax obstruction charges to things that are obvious - like audits - or will they try to stretch the boundaries to include things like correspondence audits or collection activities?"
Read more at this link (subscription required).
Guinevere Moore was recently quoted in a Business Insider article about cryptocurrency reporting. You can read the article here.
Jenny Johnson Ware will be a panelist at the 2018 Tax Court Judicial Conference in Chicago on March 27, 2018. The panel, entitled Discovery and Stipulations Process, will be moderated by the Honorable Kathleen Kerrigan of Tax Court.
Jenny Johnson Ware was quoted in an article on Tax Law360 pertaining to the U.S. Supreme Court decision in Marinello v. United States. To read more click here.
Is Coinbase Turning Your Name Over to the IRS?
Johnson Moore LLC recently published an article on Bitcoin and cryptocurrency. You can read the article here.
Guinevere Moore published an article titled Reasonable- Reliance Defense and Work Product Protection in ABA Tax Times. You can read the article here.
Jenny Johnson is involved in two panels at the FBA 42nd Annual Tax Law Conference in Washington, D.C. The first panel, Hot Topics in Domestic Criminal Tax Enforcement deals with current tax issues. The topics involved are: Is Frustrating the IRS a Felony?; Fraud Referrals from IRS Collections; Penalties and Interest on Restitution Assessments; and IRS Involvement in Interagency Investigations. The second panel, Privileges and Conflicts: The Importance of Issue Management in the Administrative and Judicial Process deals with the ethical obligations as they relate to privileges and conflicts and the consequences of failing to timely disclose conflicts.
Guinevere will be involved in two panels at the FBA 42nd Annual Tax Law Conference in Washington, D.C. Ethical Issues/Experts in Federal Tax Practice deals with understanding Kovel Agreements and the distinctions between testifying and non-testifying experts. The second panel, Reasonable Reliance Defense and Work Product Protection deals with how attorneys can and should carefully guard information that should be protected from disclosure by the attorney-client privilege and the work product doctrine and the obligations that accompany those privileges.
On March 1, 2018 Johnson Moore, LLC will be celebrating its second year anniversary!
Guinevere Moore will be involved in two panels at the ABA 2018 Midyear Meeting in San Diego this year. Preparing Witnesses to Testify involves the critical thinking involved prior to meeting with a witness and tools necessary for effective testimony. The panel on 280E Current Law and Analysis deals with the tax implications in the growing cannabis industry.
Jenny Johnson Ware and Guinevere Moore are both serving as faculty for the National Institutes on Criminal Tax Fraud and Tax Controversy sponsored by the American Bar Association, on December 6-8, 2017, in Las Vegas, Nevada.
On November 8, 2017, Jenny Johnson Ware will be speaking at the Rocky Mountain Estate Planning Council to provide tips on the handling of estate tax audits from the perspective of a tax litigator.
The August-September 2017 issue of the Journal of Tax Practice & Procedure includes Jenny Johnson Ware’s article Obstruction & Obscenity: I Know It When I See It. To read the article, please see here.
Jenny Johnson Ware will be speaking at the 5th Annual International Tax Enforcement and Controversy conference organized by the American Bar Association Section of Taxation and Tax Executives Institute, Inc., in Washington, D.C., on October 27, 2017. She will be discussing the criminalization of international tax planning, including the government’s broad use of the tax obstruction felony in Section 7212(a) and Klein conspiracy charges.
Johnson Moore partner Guinevere Moore was quoted by Tax Notes regarding why the current proposal to expand IRS authority to change a taxpayer’s tax due without first issuing a statutory notice of deficiency would harm taxpayers. Read more about why here.
The Supreme Court agreed on June 27 to take up the matter of Marinello v. United States, U.S., No 16-1144, cert. granted 6/27/17. Johnson Moore submitted an Amicus Brief on behalf of the American College of Tax Counsel urging the Court to take up the case because “the Second Circuit’s broad reading of . . . § 7212(a) creates an all-purpose tax felony that reaches the entire spectrum of administration of the tax code without requiring willfulness or an affirmative act.” Read what Johnson Moore partners Jenny Johnson and Guinevere Moore had to say about why this case is so important here and here.
Johnson Moore successfully advocated for abatement of over $2.2 million in I.R.C. §6721 penalties that were assessed against five related businesses over a two year period. By pursuing each opportunity for review within the IRS, Johnson Moore was able to convince the IRS to abate outright $1.9 million of penalties at the IRS Examination and IRS Appeals levels. Johnson Moore then filed a claim for refund for over $300,000 in §6721 penalties paid by one of the entities. The IRS granted the claim for refund in full, plus interest.
Penalties are assessed pursuant to I.R.C. § 6721 for a failure to file correct information returns, and in this case, a failure to file IRS Forms W-2 and W-3 correctly and timely.
Jenny Johnson is invited to speak on May 12, 2017 at the ABA Section of Tax 2017 May Meeting. Ms. Johnson will be presenting with Chuck Hodges, Judge Peter Panuthos, US Tax Court, Mitchell Horowitz and John Cardone regarding strategies and tips on how best to resolve cases in appeals, docketed and non-docketed. Ms. Johnson will also be presenting with Lawrence Sannicandro, Ashton Trice and Brian Skarlatos regarding the accuracy penalty which may be imposed above the 20% rate.
Guinevere Moore is invited to speak on May 12, 2017 at the ABA Section of Tax 2017 May Meeting. Ms. Moore will be presenting with William Farley, Geoffrey Davis and Randy Curato regarding ethical issues in representing tax professionals.
As counsel of record for amicus curiae American College of Tax Counsel, Johnson Moore encouraged the Supreme Court to interpret 26 U.S.C. § 7212(a) as a specialized tool in the tax enforcement system rather than an all-purpose tax felony, arguing that an unbounded interpretation of the residual clause fails to give fair notice of the conduct it punishes and invites arbitrary enforcement. To read the brief in its entirety, please see here.
Johnson Moore partner Jenny Johnson was quoted regarding impact of proposed civil asset forfeiture bill and comparison to existing procedures for return of seized property. To read the article in its entirety, please see here.
according to final regulations issued February 29. You can view the entire article here.
Jenny L. Johnson has accepted an invitation to speak on September 6, 2016, at the Thirty-fourth Cambridge International Symposium on Economic Crime in Cambridge, England. Ms. Johnson will be presenting with Caroline Ciraolo, Acting Assistant Attorney General for the Tax Division of the United States Department of Justice, regarding accountability for abusive conduct by a businesses’ employees, agents and customers.
On May 13, 2016, Jenny L. Johnson will present at the ABA Real Property, Trust and Estate Law 2016 Spring Symposium in Boston, Massachusetts, coaching non-litigators on how to protect taxpayers in IRS examinations and administrative appeals. In particular, Ms. Johnson will be teaching practitioners to spot conflicts of interest, protect the taxpayer’s privileges, recognize special situations that call for especially careful responses, effectively respond to information document requests and formal document requests, and work with an expert.
On January 30, 2016, Guinevere M. Moore presented at the ABA Tax Section 2016 Midyear Meeting in Los Angeles, California, coordinating a panel discussion with the Honorable James S. Halpern, Senior Judge of the United States Tax Court, the Honorable Cary D. Pugh, Judge of the United States Tax Court, Heather L. Lampert, Special Trial Attorney of the Internal Revenue Service, and others. The panel discussed various issues related to trying cases in the Tax Court, including stipulations of fact, witness preparation and impeachment, and the rules of evidence.
On January 29, 2016, Jenny L. Johnson presented at the ABA Tax Section 2016 Midyear Meeting in Los Angeles, California, leading a panel discussion with the Honorable Michael B. Thornton, Chief Judge of the United States Tax Court, the Honorable Lewis R. Carluzzo, Special Trial Judge of the United States Tax Court, and Peter K. Reilly, Special Counsel of the Internal Revenue Service. The panel explained how to construct decision documents that accurately reflect the terms of the resolution of a case and explored the options available to a taxpayer if the IRS fails to implement the decision in the manner the taxpayer anticipated or charges more interest than the taxpayer believes is correct.
Jenny L. Johnson and Guinevere M. Moore prevailed after trial and briefing in case where the IRS asserted transferee liability against a former shareholder of a family business as a result of the taxpayers’ alleged participation in a Midco intermediary tax shelter transaction. On December 1, 2015, the United States Tax Court issued an opinion in favor of the taxpayers in John M. Alterman Trust, Transferee v. Commissioner, T.C. Memo, 2015-231. Judge Ronald Buch found that the Commissioner failed to meet his burden of proving fraudulent transfers due to evidentiary holes in the record. The opinion is available here.


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JOSEPHINE PALMIGIANI vs. MARIA D'ARGENIO & another.
Landlord and Tenant, Landlord's liability in tort to tenant and members of his family. Evidence, Violation of statute as evidence of negligence.
St. 1907, c. 550, § 127, which provides that owners of buildings in Boston shall maintain their premises in such repair as not to be dangerous, does not repeal nor modify the rule of the common law relating to tenancies at will, and in case of such a tenancy no liability on the landlord for obvious defects or want of repair of the premises arises unless he contracts to keep the premises in a safe condition and to make suitable repairs during the tenancy.
St. 1907, c. 550, § 127, should not be so broadened by construction as materially to limit the rights of landlords and tenants to enter into such lawful contracts as they please.
In an action by the wife of a tenant at will for personal injuries, sustained in falling down stairs on the premises let, it appeared by an answer of the jury to a special question submitted to them, that there was no agreement by the defendant to maintain the stairs in a safe condition. The plaintiff requested the judge to rule in substance that, if the jury believed that the defendant violated the provisions of St. 1907, c. 550, § 127, in failing to maintain the stairs in such repair as not to be dangerous, such failure was negligence on the part of the defendant, and that, if they believed the injury to the plaintiff was caused by such failure, their verdict should be for the plaintiff. The requests were refused. Held, that the requests were refused rightly.
In view of the negative answer of the jury to the special question in the action described above, it was said to be unnecessary to decide as to the correctness of certain instructions asked for by the plaintiff, which were based upon the hypothesis that the agreement, referred to in the question submitted to the jury, had been made.
TORT , against the owners of a building numbered 16 1/2 Bremen Street in that part of Boston called East Boston, for personal injuries sustained by the plaintiff on January 23, 1917, in falling down a stairway in that portion of the building let to her husband for a tenement under a tenancy at will. Writ dated March 9, 1917.
St. 1907, c. 550, § 127, in failing to maintain these steps in such repair as not to be dangerous, that is evidence of negligence on the part of the defendants."
"St. 1907, c. 550, § 127, provides that owners of structures shall maintain their premises in such repair as not to be dangerous. If you believe that the owners of this building failed to maintain these steps in such repair, that they were dangerous, and the injury to the plaintiff was caused by such failure, your verdict should be for the plaintiff."
The judge refused to make the rulings requested but, on the question raised by these requests, gave supplemental instructions to the jury in substance that St. 1907, c. 550, § 127, would not apply to this action, if they should find that there was no duty devolving on the defendants to keep the premises safe, because, if there was no duty, there was no negligence. The jury returned a verdict for the defendants; and the plaintiff alleged exceptions.
E. H. Savary, for the plaintiff.
H. E. Perkins, for the defendants.
that is evidence of negligence on the part of the defendants. . . . Section 127 . . . provides that owners of structures shall maintain their premises in such repair as not to be dangerous. If you believe that the owners of this building failed to maintain these steps in such repair, that they were dangerous, and the injury to the plaintiff was caused by such failure, your verdict should be for the plaintiff," and to the instructions which were given on the questions raised by the requests.
The statute which consists of one hundred and thirty-four sections is entitled an act relative to the construction and maintenance of buildings in the city of Boston, after creating a department to be called the building department to be under the charge of the street commissioner, prescribes certain requirements for the construction and maintenance, and proper lighting, plumbing and ventilation of all kinds of buildings, both public and private, whether constructed after, or existing at the time of enactment, and imposes a fine "not exceeding five hundred dollars" for any violation of the act.
The section in question reads as follows: "Every structure and part thereof and appurtenant thereto shall be maintained in such repair as not to be dangerous. The owner shall be responsible for the maintenance of all buildings and structures. The lessee under a recorded lease shall be deemed the owner under the provisions of this act." It is plain that there is no express repeal of the rule at common law relating to contracts creating a tenancy at will, under which no liability is imposed on the landowner for obvious defects, or for want of repair, unless he contracts to keep the premises in a safe condition, and to make suitable repairs during the tenancy. Fiorntino v. Mason, 233 Mass. 451.
The statute not having attempted to regulate or modify the contractual relations of the parties it should not be broadened, or a construction adopted by implication which would materially limit the rights of parties to enter into such lawful contracts as they please. It would be going far to say that the Legislature intended to do away with fundamental law. Ryalls v. Mechanics' Mills, 150 Mass. 190. Barriere v. Depatie, 219 Mass. 33, 35, 36. The requests were denied rightly.
Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, Draper v. Cotting, 231 Mass. 51, 61, 62, and Cussen v. Weeks, 232 Mass. 563, the instructions, that if the jury found that a special agreement had been established, then "the fact (if it be a fact) that he was violating this statute, that would be evidence as bearing upon the question of negligence and might be considered . . . as such evidence" were correct. The question in view of the answer of the jury has ceased to be material.


A recent boost in cosmetics litigation, especially related to talcum powder, has reinvigorated a debate about the breadth of the U.S. Food and Drug Administration’s authority over cosmetic products and their ingredients.
The subject of the FDA and its action or inaction in regulation of cosmetics is being presented to countless courts and jurors in every recent cosmetic product liability action. While the debate is multifaceted, the majority of critiques all tend to be concentrated on one side of the issue.
Some litigants as well as commentators suggest that the FDA exerts no real regulatory authority over cosmetic ingredients. Others suggest that the lack of specific ingredient regulation and premarket approval makes cosmetic products inherently unsafe. A third camp claims that the FDA’s reliance on cosmetic industry self-regulation means that it has, in a sense, abandoned American consumers, who are now responsible for their own public health concerns.
But there is a contrarian view. Just because the FDA does not require premarket approval of cosmetics does not mean the ingredients are completely unregulated. Nor does the lack of federal guidelines for tens of thousands of different cosmetic ingredients mean that the industry is completely sovereign.
Looking under the hood of the current regulatory framework reveals that the rules applicable to cosmetic ingredients may be more robust than some think. Examining what rules are actually in place, rather than focusing on perceived inadequacies, may give us a better understanding of the other side of the debate.
First, the FDA’s actual legal authority over cosmetics is different from its authority over other products regulated by the agency, such as drugs, biologics and medical devices. Cosmetic products and their ingredients are not subject to FDA premarket approval authority, with the exception of color additives.
However, cosmetics do come under the purview of the FDA’s regulatory authority through two important laws: (1) the Federal Food, Drug, and Cosmetic Act, or FDCA, and (2) the Fair Packaging and Labeling Act, or FPLA. The FDA may pursue enforcement action against companies which violate these laws.
The FDCA prohibits the adulteration and misbranding of cosmetics, and the introduction, receipt and delivery of adulterated or misbranded cosmetics into interstate commerce. Cosmetics can be considered adulterated if they contain any poisonous substance, are packed under unsanitary conditions or are contaminated in a way that renders the product injurious to health.
Second, the FDA has put together a list of prohibited and restricted ingredients it considers harmful in cosmetic products. The list contains eight prohibited and two restricted ingredients. As recently as 2015, the FDCA was amended to include the Microbead-Free Waters Act, which bans rinse-off cosmetics that contain intentionally-added plastic microbeads, effective Jan. 1, 2018. While these restrictions are less prohibitive than the analogous regulations maintained by the European Union, which contain more than 1,000 banned ingredients, they are restrictions nonetheless.
The required information is not adequately conspicuous.
Cosmetics that fail to comply with the FPLA are considered misbranded under the FDCA. While these laws may not deal with the efficacy of particular substances, they do prevent deceptive packaging and labeling of ingredients that make their way into the households of U.S. consumers.
Fourth, there are targeted regulations and FDA approval requirements for certain ingredients. Color additives, for example, are one of the most widely used types of ingredients in cosmetics. Color additives give consumers a wide range of options, from a rosy hue in blush to a purple shade of eyeliner. Essentially, these are dyes that can impart color when added to a cosmetic. Color additives are subject to stringent regulations, including premarket approval, meeting requirements for identity stated in the Code of Federal Regulations, permissible concentration limits and certification of every individual batch of additives.
Finally, it is important not to focus the entirety of the conversation on the FDA. There are other agencies and regulatory schemes that assist in the regulation of cosmetics. The Toxic Substances Control Act, or TSCA, regulates new and existing substances, many of which are found within personal care products. While the TSCA does not regulate any products, it regulates substances that are used as ingredients in cosmetics.
A perfect example of this regulation at work is dibutyl phthalate, an ingredient in nail polish. Dibutyl phthalate is also a chemical solvent used in other industries; thus, it falls under the purview of the TSCA, and is subject to any testing and registration the act requires. This is just one example of how the TSCA plays an important role in the regulation of personal care products.
Other ways in which cosmetics and their ingredients are regulated include FDA review of edible cosmetics, requirements related to cosmetic shelf life and the U.S. Department of Agriculture’s regulation of organic claims. There are many other similar examples. Critics who paint the cosmetic industry as being completely devoid of any regulation may not have paid attention to the breadth of rules and guidelines within the regulatory system.
Cosmetics Can Be Drugs — So Are There Crossover Regulations?
Those who point to a lack of regulation also might not have considered that a portion of the cosmetic industry falls under drug regulations. A cosmetic product may be subject to drug approval requirements depending on advertising assertions by the manufacturer.
The FDCA defines drugs, in part, as products intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease, and intended to affect the structure or function of the body of humans or other animals. Some products meet the definitions of both cosmetics and drugs.
A common example is shampoo. Shampoo can be a cosmetic, because it is used to clean hair. But it can be considered a drug when it contains an ingredient used to treat dandruff. In such instances, the product must generally either receive premarket approval by the FDA through the New Drug Application, or NDA, process, or conform to a “monograph” for a particular drug category.
Other cosmetic/drug combinations include toothpaste with whitening ingredients, deodorants that are also antiperspirants, makeup marketed with sun-protection claims, anti-acne products and anti-wrinkle creams. Under this standard, many cosmetic products sold in the U.S. may require premarket approval, depending on how they are marketed.
If Not Regulation, What About Guidance or Consumer Knowledge?
Critics of the current framework often say that the FDA’s reliance on the cosmetic industry to police itself and use safe ingredients puts the burden on consumers to protect their own health and safety. But one could argue that this is less a matter of abandoning consumers than of sharing responsibility.
There are tens of thousands of different cosmetic ingredients on the market, with new ones created every year. This being the case, from a FDA capacity and fiscal perspective, it seems impractical to require specific directives for every ingredient.
While there may not be specific regulations governing every facet of the cosmetic industry (nor could there be), the FDA can and does fill in gaps by issuing guidance, not only on specific cosmetic ingredients, but also on other subjects. These guidance documents have been issued on a variety of subjects, including lipsticks, lead, nanoparticles, alpha hydroxy acids, quality assurance programs and good manufacturing processes. Although they do not create or confer any rights for or on any person, the FDA’s guidance documents can be used by manufacturers to satisfy the requirements of the applicable statutes and regulations.
Further, modern-day consumers can be quite discerning in their consumption of personal care products. Some have a distaste for inorganic ingredients; some are hypersensitive or allergic to certain ingredients. Between the FDA, the Cosmetic Ingredient Review, the Personal Care Products Council and the Environmental Working Group cosmetics database, U.S. consumers have a vast amount of ingredient information at their fingertips. One could argue that the sheer volume of information available empowers consumers to take the initiative in the protection of their own health and safety, by familiarizing themselves with various ingredients, and with their own bodies’ reactions to those ingredients.
Sometimes the FDA takes its cues from consumers and trade organizations. Ordinary citizens may submit petitions to the FDA asking the agency to determine that a cosmetic is adulterated, or that it contains a particular deleterious substance. In response to such petitions, the FDA can issue new regulations, change or cancel a regulation, or take other action. The agency receives about 200 petitions annually.
In the cosmetic talc context, for example, the FDA responded to petitions in 1986, 1996 and 2008 which requested that the FDA require cosmetic talc products bear a label warning of a risk of asbestos contamination. The FDA declined to require a warning label on cosmetic talc products or to make a determination that cosmetic talc was a deleterious substance.
Outside of the talc context, the Consumer Federation of America petitioned the FDA to determine urocanic acid (at the time, a common cosmetic ingredient used as a skin-conditioning agent and as a sunscreen) an unsafe substance. The FDA denied such a petition after conducting a review of urocanic acid, and concluding that the scientific evidence did not establish it to be a deleterious substance. The FDA did, however, require that manufacturers of products containing urocanic acid provide notice on their labels that its safety has not been established.
These petitions, and the FDA's responses, allow the agency to potentially address an unmet regulatory need concerning a particular substance, or to make a reactive prohibition of products already on the market. They also provide meaningful dialogue between consumers and regulated parties alike, allowing both groups insight into the FDA's positions on particular substances.
In addition to issuing responsive guidance on cosmetic ingredients pursuant to Section 704 of the FDCA, the FDA is authorized to conduct inspections of cosmetic firms at reasonable times, in a reasonable manner and without prior notice, in order to assure compliance with the applicable laws and regulations, to determine whether cosmetics are safe and properly labeled, and to identify possible health risks and other violations of the law. Although the FDA does not have mandatory recall authority over products based on these inspections, they can request recalls of products from the marketplace.
Not surprisingly, the debate over cosmetics regulation has spilled from the courtroom to Congress, with the introduction of the Personal Care Products Safety Act, the FDA Cosmetic Safety and Modernization Act and the Children's Product Warning Label Act. The passage of any of these bills would not only expand regulatory authority over cosmetics, but potentially affect every facet of the cosmetic industry, from sale, distribution and supply chains to manufacturing and marketing.
No matter the outcome of any of these bills, one thing is clear: At first blush, appearances can be deceiving. A true understanding of the breadth of cosmetic industry regulation requires a careful examination of the interplay between a variety of guidelines and directives, not just the text of the FDCA and FPLA.
 The United States Federal Food, Drug, and Cosmetic Act § 721 (FDCA); FDA, FDA Authority Over Cosmetics, http://www.fda.gov/Cosmetics/ GuidanceComplianceRegulatoryInformation/ucm074162.htm.
 21 U.S.C. Chapter 9; 15 U.S.C. Chapter 39.
 21 U.S.C. Subchapter VI § 331(a)-(c).
 C.F.R. §§ 700.11-700.35; see also https://www.fda.gov/Cosmetics/GuidanceRegulation/LawsRegulations/ucm127406.htm.
 H.R. 1321, Microbead-Free Waters Act of 2015, 21 U.S.C. 301.
 See generally 15 U.S.C. Chapter 39.
 16 C.F.R. 500, 501, 502, 503.
 15 U.S.C. § 2601 et seq.
 See 15 U.S.C. § 2605.
 Dec. 17, 2014: EPA Significant New Use Rule under the Toxic Substances Control Act, Docket No. EPA-HQ-OPPT-2010-0573.
 See 21 C.F.R. § 101.93.
 See 21 C.F.R. § 211.
 U.S.C. § 355 et seq.
 See FDA00003601-03; see also Letter from J.W. Swanson, Acting Associate Commissioner for Regulatory Affairs, FDA, to Philippe Douillet (July 11, 1986); Letter from S. Musser, Ph.D., Deputy Director for Scientific Operations Center for Food Safety and Applied Nutrition to S. Epstein, Cancer Prevention Coalition (April 1, 2014).
 21 U.S.C. § 374 (a)-(f).


§ 235-30 Cellar doors opening onto sidewalks.
§ 235-31 Posts and poles on sidewalk area.
§ 235-32 Display or storage of merchandise on sidewalk.
§ 235-33 Scaffolding; storage of building material or equipment on sidewalk.
§ 235-34 Building materials and dumpsters; permit fee.
§ 235-35 Depositing materials on streets or other properties.
§ 235-36 Removal of materials.
§ 235-37 Violations and penalties.
It shall be unlawful for any person to construct, install or maintain any cellar door, opening upon or into any sidewalk in the Township.
It shall be unlawful for any person to erect or maintain any post or pole upon any sidewalk or sidewalk area in the Township, for the purpose of supporting any awning, canopy, marquee or portico.
It shall be unlawful for any person to display or store any merchandise upon any sidewalk in the Township unless such merchandise, including any stand, table or support therefor, shall extend not more than one foot from back edge of sidewalk toward the curb or outer line of the sidewalk, and shall be not less than six feet in height.
It shall be unlawful for any person to erect any scaffolding upon or over any sidewalk in the Township or to store upon any sidewalk or street any material or equipment used in construction or repairs to the sidewalk or in the construction of any vault thereunder, unless there shall be left a passageway for pedestrians at least three feet in width alongside such scaffolding or other obstruction.
When any person shall be about to erect or repair any house, building, wall or other structure within the Township and desires to occupy a part of the public street or sidewalk for placement of building materials, mortar boxes, dumpsters or similar items thereon, he shall make application to the Township stating the number and extent of such building materials, dumpsters and/or other items for the accommodation of which he desires to occupy said street or sidewalk, the specific location where such person will place the building materials, dumpsters and/or other items and why it is not possible to place such items upon the property to which they relate. If the placement of the requested materials will interfere with the safe passage of vehicular or pedestrian traffic, the Township shall deny the permit. If the applicant demonstrates that safe vehicular and pedestrian passage may be maintained, the Township shall issue a permit to occupy said part of any public street or sidewalk for the purpose stated in the application. In case it is desired to mix mortar and place any mortar boxes upon any of the public streets or highways during the erection and repair of buildings, walls or other structures, it shall be required that a watertight box be used. A permit shall identify the dates of the permitted occupancy of the street or sidewalk and the permit shall not be valid for more than 30 days.
All building materials and other items shall be neatly maintained. Reflectorized or lighted barricades shall be used. The cartway shall at all times be left unencumbered between said materials or mortar boxes and the opposite curb for the passage of vehicles.
The placement of any dumpster shall be in accordance with all requirements of the Commonwealth of Pennsylvania Motor Vehicle Code and Chapter 262, Vehicles and Traffic, of the Code of the Township of West Lampeter. The dimensions of the dumpster shall not exceed eight feet in width by 20 feet in length. The dumpster shall be lighted or reflectorized or lighted barricades shall be used. The dumpster shall not inhibit vehicle sight distance visibility. The applicant shall provide the Township with the name and telephone number of the company furnishing the dumpster. Should it be proven subsequent to the placement of a dumpster in the right-of-way that said dumpster creates a hazard, even though a permit has been issued, the Township Manager or Chief of Police shall have the right to require the permittee to have the dumpster removed within 24 hours.
No building materials, dumpster or other item shall be placed within 15 feet of any fire hydrant or within 50 feet of a railroad track.
If any damage or injury to the cartway, curb or sidewalk shall be caused or done by the use or occupancy of any street or road hereunder, the party to whom such permit shall have been issued shall be responsible and liable for the same and shall restore the cartway, curb and/or sidewalk to its original condition. If the permittee refuse to properly restore the cartway, curb and/or sidewalk to its original condition, the Township may do so and collect the cost of the same from the permittee.
The cost of a permit shall be set forth, from time to time, by resolution of the Township Board of Supervisors.
It is hereby declared a pubic nuisance for any person, when hauling soil, bedrock, concrete, waste material or other material over any public street, road, alley or public property, to allow such material to blow or spill over and upon such street, road, alley, sidewalk or public property or adjacent private property.
It is hereby declared a public nuisance for any person, being the owner of real property or operator of any vehicle, to permit a vehicle entering from upon a public street, road or alley or upon public property to deposit or track dirt, mud, rock or other material from such property.
In accordance with 53 P.S. § 67326, any person who obstructs any public road or commits any nuisance thereon by felling trees, making fences, turning the road, diverting water onto or in any other way and who does not, on notice given by the Board of Supervisors, immediately remove the obstruction or nuisance and repair the damages done to the road commits a summary offense. Nothing in this subsection shall debar a prosecution for any nuisance as in case of misdemeanor at common law.
Any person violating the provisions of this article shall cause any deposited material to be removed from the street, road, alley, sidewalk or public property within six hours from the occurrence. In the event of an immediate danger to the public health or safety, the material shall be removed immediately. In the event that deposited material is not so removed, the Township shall cause such removal and the cost thereof shall be charged to the person responsible.
Until the Township has been compensated for any charges incurred by Township in cleaning up or removing the unlawfully deposited material.
Until the person responsible has paid or deposited in escrow any fines or penalties which a District Justice determines to be due by reason of a violation of this article.
Until such time as the Township determines that the person responsible has taken adequate precautions to assure that the unlawful depositing of materials will not reoccur.
Any person whose permit shall have been revoked by the Township Manager may, within 30 days of such suspension or revocation, appeal such decision to Township Board of Supervisors.


text:
William Nicholas Karcher, pro se.
Robert L. Shevin, Atty. Gen., Arnold Ginsberg, Asst. Atty. Gen., Tallahassee, Fla., for defendant-appellee.
Appellant is presently confined in a federal prison, by virtue of a federal sentence which he does not attack in these proceedings. In his habeas petition filed below, the appellant complained of his five-year sentence2 for the crime of "entering without breaking." He was convicted and sentenced on his plea of guilty of this offense on March 5, 1970, in the Criminal Court of Record of Dade County, Florida. There was no direct appeal.
"The petitioner is not attacking the voluntariness of his guilty plea, merely the failure to bring him to trial within three terms of court. A plea of guilty is an admission of all the elements of a formal criminal charge. United States v. Bendicks, 449 F.2d 313 (5th Cir. 1971). Such a plea waives all nonjurisdictional defects in the proceedings against him. Gafford v. United States, 438 F.2d 106 (5th Cir. 1971). The issue of an accused's right to a speedy trial is nonjurisdiction[al] in nature. Fowler v. United States, 391 F.2d 276 (5th Cir. 1968). The petitioner has therefore waived the ground he presently seeks to assert."
We find no error in the district court's holding, based on the record which was then before it.
In an unsworn letter-request for rehearing, Karcher alleged generally that his defense was prejudiced by the delay; and that the state's attorney wrongfully induced his plea by threats of longer consecutive sentences if he went to trial. The district court was justified in disregarding these unverified factual allegations, which it did in denying rehearing. See 28 U.S.C. Sec. 2242; Application of Gibson, 9th Cir. 1954, 218 F.2d 320, cert. denied 348 U.S. 955, 75 S.Ct. 445, 99 L.Ed. 746; Dorsey v. Gill, 1945, 80 U.S.App.D.C. 9, 148 F.2d 857, cert. denied 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003. Furthermore, the record shows that Karcher has not attempted to exhaust his available state remedies on these additional grounds, as required by the provisions of 28 U.S.C. Sec. 2254(b). Such exhaustion is a prerequisite to the granting of federal habeas corpus relief to a state prisoner. See Picard v. Connor, 1971, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438; Lee v. Wainwright, 5th Cir. 1972, 468 F.2d 809 ; Williams v. Wainwright, 5th Cir. 1971, 452 F.2d 775; Jackson v. Wainwright, 5th Cir. 1971, 450 F.2d 289. The order appealed from is affirmed.

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