High Courts Monthly RoundUp — November 2021

Allahabad High Court


POCSO

Putting penis into mouth will fall under which category – Aggravated Sexual Assault or Penetrative Sexual Assault?

 Anil Kumar Ojha, J., while addressing a matter of child sexual assault, expressed that,

Putting penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into the category of penetrative sexual assault which is punishable under Section 4 of POCSO Act.

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Workman

Can workman who was employed for particular project be considered employee of the company and given permanent status after project is over?

Siddhartha Verma, J. reiterated the law laid down by the Supreme Court in Lal Mohammad v. Indian Railway Construction Co. Ltd.(2007) 2 SCC 513, wherein it was decided that when a workman is employed for a particular project then the services of that employee came to an end as soon as the project was over and he could not be given permanent status. It was also held that shortfall of period of notice or compensation, after completion of the project would not render the termination bad on that count.

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Arbitration

If arbitrator becomes functus officio, can provisions under Ss. 14 and 15 of the A&C Act to appoint substitute arbitrator be invoked?

Noting the significance of Sections 14 and 15 of the Arbitration and Conciliation Act, 1996, Jayant Banerji, J., expressed that,

If the arbitrator had been rendered functus officio, there existed no occasion to invoke the provisions of Sections 14 and 15 of the Act for appointing a substitute arbitrator.

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 Guardianship Rights v. Welfare of Minor 

What is more significant: Competing rights of guardianship or Welfare of minor?

Dr Y.K. Srivastava, J., expressed that, in a matter of custody of a minor child, the paramount consideration is the “welfare of the minor” and not rights of the parents or relatives under a statute which are in force.

A claim for guardianship or custody, in a writ of habeas corpus, may not be held to be an absolute right, and would yield to what would appear to be in the interest of the child. In such cases, it is not a question of liberty but of nurture and care. 

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Auction

Property of dead person sold in auction: Is it bad in law?

Siddhartha Varma, J., while deciding a matter with regard to the auction of the property of a dead person held that the proceeding conducted against a dead person is bad in law.

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Bombay High Court


 NDPS

Whether the blotter paper forms an integral part of the LSD drug when put on a blotter paper for consumption?

Addressing a very crucial question having relevance with the Narcotics Drugs and Psychotropic Substances cases, Revati Mohite Dere, J., decided whether blotter paper forms an integral part of the LSD Drug when put on blotter paper for consumption.

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Did Aryan Khan with other two accused hatch a conspiracy to commit offence under NDPS Act?

Merely because of Applicants were travelling on the cruise, that by itself cannot be termed as satisfying foundation for invoking provisions of Section 29 against the Applicants.

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Documents

Does accused has right to demand production of documents withheld by investigator at framing of charge? Does S. 91 CrPC include witness statement?

Sandeep K. Shinde, J., expressed that it is settled law that at the stage of framing the charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused and at that time, trial court is required to consider only police report referred to under Section 173 of the Code and documents sent with.  

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Rape & Murder

‘Hang by neck till dead’: Bom HC confirms death sentence in a rarest of rare cases for committing rape and murder of a 3-years 9-months old child

 While confirming the death sentence in this rarest of rare cases, the High Court observed:    

“The act of the accused is gruesome and is committed in a diabolic manner. It is a heinous offence. It is unimaginable that a cheerful, frolicking child enjoying with her pet would provoke the feelings of lust in a man who is a father of two daughters and a son. The perversity in the mind of the accused is apparent and therefore, we are of the opinion that the aggravating circumstances in the present case outweigh the mitigating circumstances placed before the court in the course of hearing of the appeal.”

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Abetment of Suicide

Is it possible to frame a charge against accused for abetment of suicide and in the alternative for committing murder?

Sandeep K. Shinde, J., explained as to when a charge in the alternative can be framed against an accused and when it is not permissible to do so.

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Bail

Bom HC discusses law where accused already granted bail but further non-bailable offences are added by prosecution

Sandeep K. Shinde, J., reiterated the law laid down by the Supreme Court in the case of Pradip Ram v. State of Jharkhand(2019) 17 SCC 326 wherein it was held:

“where the accused is bailed out under orders of the Court and new offences are added including the offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the Court before granting permission to arrest an accused on the basis of new offences. The Powers under Sections 437(5) and 439(2) are wide powers granted to the Courts by the legislature under which Court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to the earlier offences.”

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Calcutta High Court


 Anticipatory Bail

‘Citizens must refrain from taking law in their own hands’: Cal HC observes while granting anticipatory bail to petitioners apprehending arrest for rioting, vandalism, etc.

 Expressing that, “Time has come that every dutiful citizen of the country must realize their duties and accountability to the society and must refrain from taking the law in their own hands”, Division Bench of Harish Tandon and Rabindranath Samanta, JJ., held that,

Destruction of public property has a ramification on society and the taxpayers are burdened for no fault on their part. The charging sections would evince that not only the Public Officers but the public properties have also been destroyed.

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Rape

Court explains “Intelligible testimony” and “reverse burden of proof”; dismisses appeal of accused charged for raping 3 year old girl under S. 6, POCSO Act

The Division Bench of Soumen Sen and Rabindranath Samanta, JJ., dismissed a criminal appeal which was filed against the judgment and order of conviction and sentence passed by Additional Sessions Judge–cum-Special Judge under POCSO Act, 2012 whereby the appellant had been convicted for commission of offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 read with Section 376 (2) (i), Indian Penal Code and sentenced to suffer rigorous imprisonment for life without remission and to pay a fine of Rs. 2,000,00.

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Fundamental Rights

Festival of lights would spread joy, but few are deprived of basic necessities: Is Aadhaar the only criteria for identification of beneficiaries under National Food Security Act?

The Division Bench of Prasanna B. Varale and Madhav J. Jamdar, JJ., while addressing a petition expressed that,

It is disheartening situation for us when we the fortunates are eagerly awaiting as the festive season is approaching and the festival of lights would spread joy and happiness in the society throughout the State or the whole nation, here are the few petitioners who are the members of the marginalised section in general and tribals in particular who have approached this Court on a grievance that they are deprived of the basic requirement of human life, i.e., food, only on account that the State machinery is not technically equipped to give them the benefits flowing from the scheme formulated and floated by the Union of India and to be implemented and executed by the respective States.

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State Machinery 

13-years of long fight, yet State’s investigation unsatisfactory: Whether exemplary costs to a wife fighting for a decade to secure her missing husband’s presence would be granted or not?

 While noting the failure of State Machinery in securing the presence of a person for 13 years, Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., expressed that,

Article 21 of the Constitution of India guarantees that no person shall be deprived of his life or personal liberty except according to a procedure established by law. Right to life and personal liberty is the primordial right which every human being everywhere at all times ought to have it.

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Delhi High Court


 Contempt of Court

Husband stubbornly and obstinately refused to comply with the orders of the Court; No full disclosure of income

While addressing an issue of non-compliance of Court’s order with regard to paying maintenance to wife, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., held that,

The actions/ omissions of the Respondent in choosing to show complete disregard to the orders of the Court cannot be countenanced. If such action is permitted, it will lead to anarchy and the Rule of Law would become a casualty. The orders of the Courts would be taken lightly and breached at the own sweet will of the individual concerned.

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Role of Advocate 

An advocate engaged by a client, can he also act as his power of attorney in the proceedings and verify pleadings?

Prathiba M. Singh, J., observed that an advocate who is engaged by a client has to play only one role, either of the advocate in the proceedings or the power of attorney holder.

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Kalkaji Temple

Del HC issues directions for removal of unauthorized shopkeepers, Sanitation facilities, Potable Drinking Water, Garbage Disposal, etc.

The shopkeepers or their families also cannot reside in the Mandir complex. The same is impermissible and is nothing but unauthorized encroachment and trespass into the Mandir’s premises.

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Right to demand Respect & Inter Cadre Transfers

Significance of ‘cogent reason’ while declining inter-cadre transfer

Addressing a grievance with regard to the denial of inter-cadre transfer Division Bench of Rajiv Shakdher and Talwant Singh, JJ., held that, denial with no cogent reasons impinges upon such person’s right to demand respect for her/his family life.

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Territorial Jurisdiction

Where can a petition under S. 125 CrPC be filed?

Subramonium Prasad, J., reiterated the law relating to the territorial jurisdiction of the court to entertain a petition under Section 125 CrPC.

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Section 125 CrPC

Can wife claim maintenance under S. 125 CrPC where she as well as husband had spouses living at the time of alleged marriage?

A second wife whose marriage is void on account of survival of the first marriage would not be a legally wedded wife, and therefore would not be entitled to maintenance under this provision.

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Maintenance can be claimed under DV Act even if already granted under S. 125 CrPC: Del HC reiterates

Amit Bansal, J., reversed the order of the trial court as it dismissed the application filed by the petitioner under Section 26 of the Protection of Women from Domestic Violence Act only on the basis that it had been filed towards execution of maintenance already granted.

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Cruelty

Wife made serious criminal allegations against husband and his parents but couldn’t prove: Would this amount to cruelty against husband to grant divorce?

While addressing a matrimonial matter wherein a wife caused cruelty to husband, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,

For a man to see his parents to be taken into custody and being incarcerated even for a single day would have caused immense and untold pain and agony to him.

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Can allegations of demand of dowry and alcohol consumption made by wife amount to ‘cruelty’?

Expressing that, allegations made by the wife with regard to the husband demanding dowry and indulging in alcohol consumption, do not tantamount to making serious allegations impinging on the character of the husband, to such an extent, that they would be the cause of immense mental agony and cruelty, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., dismissed the petition.

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INX Media Case

Can accused be allowed to inspect documents kept in “malkhana”?

Mukta Gupta, J., expressed that,

“…while passing an order of inspection of unrelied upon documents, the Court is bound to strike a balance between the competing interest of ensuring a fair trial to the accused as also maintaining the sanctity of further investigation, in case further investigation is to be carried on.”

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Arbitration

What happens if parties fail to agree on arbitrator within 30 days from receipt of request by one party?

Sanjeev Narula, J., allowed an arbitration petition by appointing a sole arbitrator to adjudicate the disputes between the contesting parties.

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What is the remedy against an order allowing application under S. 8 of Arbitration Act, where existence of arbitration clause is not disputed?

Amit Bansal, J., dismissed a petition challenging the order passed by the lower court whereby respondent’s application under Section 8 of Arbitration and Conciliation Act, 1996 was admitted.

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Assault by Policemen

Law does not permit people to be beaten-up in police custody or during interrogation

While addressing a very unfortunate incident of police assault, Najmi Waziri, J., expressed that

Let no one have to repeat the tragic last words like George Perry Floyd, Jr.: “I can’t breathe”.

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Law on Offences against property

While committing the act of robbery, if revolver is brandished, would that be an offence under S. 397 IPC?

Subramonium Prasad, J., addressed a very pertinent question of whether brandishing a revolver during the act of robbery be covered under Section 397 of Penal Code, 1860.

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Dissolution of Marriage

Materialistic attitude of husband considering wife as cash cow: Is it a ground to dissolve marriage?

The Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., noted in a matrimonial matter that the wife was being viewed as a cash cow and the husband became interested in her only after she got a job with Delhi Police.

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Jammu and Kashmir and Ladakh High Court


Preventive Detention

“No Court should tune out terrorist activities”; HC refuses to interfere with preventive detention of man involved in Pulwama conspiracy

While dismissing the petition seeking release from preventive detention to the detenu involved in Pulwama conspiracy, Tashi Rabstan, J., remarked,

“Acts or activities of individual or a group of individuals, prejudicial to the security of the State or public order, has magnitude of across-the boarder disfigurement of societies. No court should tune out such activities, being swayed by passion of mercy.”

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Selection

“Neither irrational, unreasonable nor arbitrary”; HC holds higher qualification than the maximum qualification prescribed is not suitable qualification

The Division Bench of Ali Mohammad Magrey, Sanjay Dhar, JJ., held that in case of appointments to Class-IV posts, higher qualification than the prescribed 10+2 may not be suitable for many reasons.

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Run Away Couple

No law or religion gives a license to a father to harass his daughter”

“No law or religion gives a license to a father to harass or intimidate his major daughter just because she does not accede to wishes of her father to marry a particular person.”

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Jharkhand High Court


Specific ingredients must clearly asserted in the notice so that the noticee has an opportunity to explain and defend himself in accordance with S. 74 of JGST Act, 2007

A Division Bench of Aparesh Kumar Singh and Anubha Rawat Choudhary, JJ., allowed the petition and directed the respondents to initiate fresh proceedings from the same stage in accordance with law.

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“Petitioner cannot be treated as a consumer of bulk supply of electricity”; Term “bulk supply” is confined to energy supplied to industrial units and consumers engaged in mining only

A Division Bench of Aparesh Kumar Singh and Anubha Rawat Choudhary, JJ., allowed the petition and sets aside the impugned assessment orders as well as demand notices arising therefrom, which has been passed by treating the petitioner as a consumer of bulk supply of electricity.

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Karnataka High Court


Value Added Tax

‘Common parlance test, ‘Marketability test’ are tools for interpretation to arrive at a decision on proper classification of a tariff entry

A Division Bench of S. Sujatha and Ravi V Hosmani, JJ., allowed the revision petition and set aside the impugned judgment by the Tribunal.

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Kerala High Court


Rape

Being in love isn’t synonymous to consent for sexual intercourse; HC upholds conviction for rape

While clarifying the difference between consent and submission, the Bench expressed,

“Merely for the reason that the victim was in love with the accused, it cannot be presumed that she had given consent for sexual intercourse.”

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Duty of Police Officer

“Mere abusive, humiliating or defamative words by itself cannot attract an offence of obscenity under Section 294 (b) of IPC”; HC quashes proceedings against person who allegedly harassed the Police

Rejecting the allegation of obscenity against the petitioner for abusing and using humiliating words against the Police officer, the Bench clarified,

“It is to be noted that the test of obscenity under Section 294 (b) of the Indian Penal Code is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.”

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Kidney Transplant

Swap Kidney Transplantation between non-relatives; HC removes legal hurdles

Nagaresh, J., allowed swap kidney transplant between non-relatives. Opining that any law prescribing procedure for organ transplantation should satisfy the test of reasonableness, the Bench remarked,

“When Section 9(3) permits transplant of organs to persons not being a near relative, with the prior approval of the Authorisation Committee, there is no logic or rationale to say that swap transaction will not be allowed when members of each pair are not near relatives, even if the Authorisation Committee approves such transaction.”

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Influence of Alcohol

Presence at a Police Station while being under influence of alcohol; will it attract any offence?

Sophy Thomas, J., quashed proceedings against the petitioner who was charge sheeted for being under the influence of alcohol during his visit to police station for identifying an accused. The Bench stated,

“Consuming liquor in a private place without causing nuisance or annoyance to anybody will not attract any offence”

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Child Molestation

“Child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused”

The Division Bench of K.Vinod Chandran and C. Jayachandran, JJ., acquitted the father accused of raping his own minor daughter. Considering the contention that the allegation was raised due to instigation by the stepmother, observing discrepancies in statements of victim and her stepmother and failure to prove age of the victim by the prosecution, the Bench remarked,

“Forensic and semantics apart, child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused, more so if the accused is a parent; even if he is eventually acquitted.”

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Public Space

Ensure no new flag masts and posts be permitted to be brought on to the roads and public spaces; HC directs Kerala government

“This is an extremely unfortunate situation and it prevents a complete breakdown of law, because there can be no doubt that any such installation can be made on any public space or road only after obtaining necessary permission from the Local Self Government Institution or such other competent Authority.”

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Interim Orders

No appeals will lie against ad interim orders in a pending case

P.B. Suresh Kumar and C.S. Sudha, JJ., held that ad interim orders cannot be impugned in an appeal under Section 5(i) of the Act. The Bench stated,

 “If appeals against such orders are entertained, the appellate court would be usurping the original jurisdiction of the Court under Article 226 of the Constitution.”

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Animal Rights

“Illegal and Unconstitutional”; HC declares stipulations prohibiting residents from keeping pets void and unenforceable

The High Court of Kerala has once again advocated for animal rights and welfare as the Division Bench of A. K. Jayasankaran Nambiar and Gopinath P. JJ., held that stipulations in resident agreements prohibiting the residents from keeping pets of their choice in their individual apartments are unreasonable and unconstitutional. The Bench remarked,

“We believe the time has indeed come to nudge our citizenry into respecting the claims of other living beings that too have rights in our shared ecosystem. Compassion and empathy are the very essence of civilization and we must strive to preserve these values as part of our culture.”

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Madhya Pradesh High Court


Minor Wife

Does physical relationship with a minor wife come within the category of rape?

G.S. Ahluwalia J., rejected a bail application under Section 439 of CrPC. The appellant was arrested on 31-01-2021 in connection for offence under Sections 363, 376, 366 of IPC and Section 5/6 of POCSO Act.

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Contempt

“To err is human and to forgive is divine”; Court directs advocate to plant and take care of 20 saplings as punishment for contempt of female judge after unconditional apology

The Division Bench of Sheel Nagu and Anand Pathak, JJ., decided upon a petition which was in reference under Section 15(2) of The Contempt of Courts Act, 1971 sent by Judicial Magistrate First Class, Datia in respect of the conduct of respondent.

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Meghalaya High Court


Bail

“Bail and not Jail” Court grants bail to accused charge sheeted for raping own mother

Diengdoh, J., allowed a bail application which was filed under Section 439 CrPC with a prayer for grant of bail wherein the petitioner was accused of raping his own mother.

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Public Interest Litigation

Court allows PIL highlighting delay in establishing comprehensive and modern cancer care facilities in the State

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Orissa High Court


Termination of Pregnancy

Infringement of fundamental right to life of the victim heavily outweighs the right to life of the child in womb; Ori HC refuses to terminate 24+ week pregnancy of a rape victim

K. Panigrahi, J. disposed of the petition and refused to terminate 24+ week pregnancy of a rape victim.

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Government Health Facilities

Ori HC issued directions regarding doctors being attached to Government Health Facilities and carrying on private practice without attending their duties at the Government Health Facilities

A Division Bench of S. Muralidhar, CJ and A. K Mohapatra, J., issued directions regarding Doctors being attached to Government Health Facilities and carrying on private practice without attending to their duties at the Government Health Facilities.

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Firecrackers

Burst only ‘green fireworks’, for 2 hrs only on Diwali

The Division Bench of Dr S. Muralidhar, CJ and B.P. Routray, J. disposed of a writ petition while noting with approval the directions issued by Special Relief Commissioner relating to bursting of green fireworks for a limited period on Diwali day.

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Patna High Court


Breach of Trust and Misappropriation of Client’s money; HC denies bail to Advocate booked for enchasing compensation granted to his client by Railway Claims Tribunal

Rajeev Ranjan Prasad, J., denied bail to the advocate booked for allegedly misappropriating his client’s money and committing breach of trust being an attorney. The Bench stated,

“Despite repeated caution made to learned counsel for the appellant that the appellant being an Advocate must come out with a fair stand even at this stage, there is no change of stand.”

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Punjab and Haryana High Court


Child Marriage

Marriage with a minor is valid if no attempt is made to declare it invalid once the child turns major

The Division Bench of Ritu Bahri and Arun Monga, JJ., held that marriage with minor is valid if no attempt is made to declare the same invalid once the child turns 18.

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NDPS

Challan filled without FSL report is not a complete challan under NDPS Act; HC grants bail to the man in alleged possession of 1.6 kg ganja

Anupinder Singh Grewal, J., granted bail to the person accused of carrying 1.6 kg of ganja on the ground that the challan filled without FSL report would not be a complete challan.

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Rajasthan High Court


Encroachment

Raj HC issued directions to provide a pan-Rajasthan solution for persisting problem of encroachment on the land of public way, johar paitan, river bed etc.

A Division Bench of Vinit Kumar Mathur and Sangeet Lodha, JJ., disposed of the petition and issued directions to the respondents to remove encroachments made over the land in question.

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Sikkim High Court


Rape

Prosecution not able to establish beyond a reasonable doubt that the Appellant was the perpetrator of rape of the minor; acquits accused

The Division Bench of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ., allowed an appeal which was filed in order for the Court to determine as to whether the Appellant was the perpetrator of the offence of rape.

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Telangana High Court


Education Institution

Educational Institution: Is it an ‘establishment’ under Telangana Shops and Establishments Act?

The Division Bench of Satish Chandra Sharma, CJ and B. Vijaysen Reddy, J. decides whether an educational institution is covered within the meaning and definition ‘establishment’ under the Telangana Shops and Establishments Act, 1988.

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Influence of Alcohol

Know the 9 directions that Police Officers have to follow on finding vehicle being driven under influence of alcohol

Lakshman, J., while addressing a very pertinent issue expressed that,

Intention of the Legislature is to reduce the accidents and deaths that may be caused due to driving of vehicles in intoxicated condition, and it is not the intention to harass the owners of the vehicles by detaining the vehicles for days together.

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Uttaranchal High Court


Judicial Order

Judicial order necessarily has to be a reasoned one; Court finds reasoning by the Single Judge cryptic, remands the case back

The Division Bench of Raghvendra Singh Chauhan, CJ. and Narayan Singh Dhanik, J. decided on a petition which was filed challenging the validity of the order passed by the Single Judge whereby the respondent-writ petitioner, M/s Kohli Enterprises, was not only blacklisted, but even its registration was cancelled by the appellants.

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Arbitration Agreement

Relief under S. 9 of the Arbitration and Conciliation Act: Can it be granted to a party who is not party to arbitration agreement?

Emphasizing on the purpose and object of Section 9 of the Arbitration and Conciliation Act, 1996, Division bench of Raghvendra Singh Chauhan, CJ and Alok Kumar Verma, J., held that,

A person not a party to an arbitration agreement cannot invoke jurisdiction of the Court for interim relief under Section 9 of the Act, 1996.

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Arrears

State directed to release the arrears of the deceased-in harness in the favour of the family along with interest

The Division Bench of Raghvendra Singh Chauhan, CJ. and Sanjaya Kumar Mishra, J., allowed a petition which was filed by the widowed wife of Mr. Babu Ram, who had died-in harness on 26-08-2020 for the release of gratuity, leave encashment, arrears of ACPs’, and the arrears of the 7th Pay Commission of her late husband in her favour.

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