Case BriefsHigh Courts

Delhi High Court: Stating that mere writing of a letter of representation cannot furnish an adequate explanation for the delay, Jyoti Singh, J., expressed that, it is a settled principle of law that in writ jurisdiction, the Court would not ordinarily assist those who are lethargic and indolent.

In the present matter, petitioner sought a writ of Certiorari quashing the advertisement with respect to an application in Class 5 filed by Midas Hygiene Industries (P) Ltd./respondent 3 for registration of trademark LAXMAN REKHA (label) and a further direction to the Registrar of Trade Marks to re-advertise the application.

Respondent 3 filed an application for registration of trademark LAXMAN REKHA (label) and a suit for perpetual injunction, infringement of copyright, passing off, delivery etc. against the petitioner was also filed in respect of trademark LAXAMN REKHA.

Injunction against the petitioner was granted against the petitioner. The said order was vacated before the Division Bench, however, Supreme Court set aside the order of the Division Bench and restored the order granting injunction. The suit was transferred to the District Courts on account of pecuniary jurisdiction.

Respondent 3 preferred an application before the Trial Court seeking amendment of the plaint and application filed copy of the registration certificate, whereby respondent 3’s trademark LAXMAN REKHA was registered in Class 5.

It was undisputed that the impugned advertisement was published in the Mega Journal in 2003 and trademark of respondent 3 was registered in 2005. As per the counter-affidavit of respondent 1 and 2, the mark was renewed in 2007 for 10 years. Petitioner averred that he learnt of the registration of the mark in 2006, when the Registration Certificate was filed by Respondent 3 along with an application for amendment in a suit pending in the District Courts, between the same parties.

In Court’s opinion, the statutory remedy available to the petitioner was to seek cancellation of the registered trademark and rectification of the Register under Section 57 of the Act. Though the petitioner failed to take recourse to the appropriate remedy available under the Statute and instead filed the present petition for the reasons best known to him.

Bench stated that it was evident that the petitioner was completely aware of the remedy available to any person aggrieved to seek cancellation of the mark and rectification of the Register under Section 57 of the Act, way back in the year 2006, but chose to remain silent and took no steps to seek cancellation of the mark and rectification of the Register, with respect to the trademark in question.

Hence, the Court expressed that,

This Court cannot, by entertaining the present writ petition, create an alternate mechanism to challenge the registration of a trademark, though indirectly, against the legislative intent.

If there is a delay on the part of the  Petitioner ,which is not satisfactorily explained, the High Court may decline to exercise the writ jurisdiction.

Lastly, the Bench held that in the present matter, the petitioner took no action, except to correspond with the Registrar and admittedly in the meantime, statutory rights were accrued in favour of respondent 3, hence the Court was not persuaded to exercise the writ jurisdiction in favour of the petitioner.[Sudhir Bhatia Trading As V. Bhatia International v. Central Government of India, WP(C)-IPD 37 of 2021, decided on 19-5-2022]


Advocates before the Court:

For the Petitioner:

Mr. Shailen Bhatia, Ms. Zeba Khan and Ms. Muskaan Arora, Advocates.

For the Respondents:

Mr. Harish V. Shankar, Central Government Standing Counsel with Ms. S. Bushra Kazim and Mr. Srish Kumar Mishra, Advocates for UOI/R-1 & R-2.

Mr. Sanjeev Sindhwani, Senior Advocate with Mr. Sanjay Dua, Advocate for R-3.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Mukta Gupta and Neena Bansal Krishna, JJ., observed that Court cannot assume the duties of the Administrator or the Executive Committee to address the day-to-day grievances.

The petitioner had filed the writ petition for issuance of direction or order to not deprive and violate the fundamental right of the petitioner, to live with dignity and mental peace and not to disrupt the supply of basic needs and essential services and for uninterrupted ingress and egress to his residence in the society complex, and further maintain rule of law.

Factual Background

The petitioner was residing in the co-operative Group Housing Society having 120 members. The said members were allotted dwelling apartments and the Society was managed by respondent 2.

The claim of the petition was that he had an abode in the Society and was suffering from constant deprivation and gross infringement of his right to enjoy the property. Further, he had been deprived of basic services and a dedicated car parking inside the Society as part of the Group Housing Scheme under the DCS Act.

The petitioner approached the appropriate legal forum, and an award was passed directing respondent 2 to provide one dedicated earmarked car parking for each member of the Society and also to remove illegal occupants from the parking area under the stilt of the building.

Analysis and Decision

One of the grievances of the petitioner was that his demarcated car parking had been occupied by the unauthorized occupants and despite the Award, the earmarked car parking was not being restored to him. However, it was his own assertion that he had applied for execution of the Award in which necessary direction had been issued.

The Bench expressed that, this Court cannot assume the duties of the Administrator or the Executive Committee to address the day-to-day grievances of the petitioner.

Further, it was claimed by the petitioner that he was not getting free access to the lift and enjoyment of the common facilities and amenities.

High Court stated that, the allegations made were general, vague and lacked specific details.

Lastly, the Bench concluded that the grievances of the petitioner were general and essentially about the efficiency of services which had to be agitated by the petitioner within the mechanism as provided under the Delhi Cooperative Societies Act, 2003.

There was no merit in the present petition. [D S Kundu v. Registrar, Co-op Societies Delhi Old Court Building; WP(C) No. 8771 of 2020, decided on 20-5-2022]


Advocates before the Court:

For the Petitioner: Petitioner-in-person

For the Respondents: Ms Sanjana Nangia Advocate for Mr Sameer Vashisht, Additional Standing Counsel for GNCTD.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., held that, the Delhi Government’s Mukhya Matri Ghar Ghar Ration Yojana cannot be implemented and rolled out by the GNCTD since the LG expressed his difference of opinion.

Subject Matter of Challenge

In the present matter, the challenge was regarding the Doorstep Delivery of Ration Scheme evolved by the Government of National Capital Territory of Delhi (GNCTD).

The above-said seeks to by-pass the existing Fair Price Shop owners/dealers in the matter of distribution of food grains and wheat flour at the doorstep of the beneficiaries under the Targeted Public Distribution System.

Discussion

Whether the petitioners have the locus standi to prefer these petitions?

Petitioners case was that, their rights were vitally affected by the aforesaid scheme of the GNCTD, and the tenders floated by the GNCTD. Under the impugned scheme and the tenders issued by the GNCTD, what is proposed to be done is to invite tenders inter alia, for the purpose of appointing agencies who would take the grains provided by the Centre and the NFSA.

The petitioners also asserted that the impugned scheme was justified by the GNCTD on the basis of their unfounded and biased allegation of wrong doings by all the FPS owners/ dealers, and their name and reputation are at stake.

Hence, the petitioners had the locus standi to prefer the present petition.

Points worthy of taking note:

  • FPS have always been considered as and continue to be considered as the nodal interface between the State on the one hand, and the beneficiaries on the other hand.
  • While foodgrains are made available for distribution by the Central Government, the responsibility of receiving the foodgrains and ensuring their distribution through the institution of the FPS, is that of the State Governments.
  • The statutory framework – both in the pre NFSA, and post NFSA regime has been, and continuous to be, that the foodgrains, which are delivered at the door step of the allocated fair price shops, are collected by the beneficiaries from the fair price shops.
  • Under the existing regime – with regard to distribution of foodgrains under the NFSA, the only exception to the manner of distribution of foodgrains is in respect of a limited category of beneficiaries. Such beneficiaries re entitled to home delivery of foodgrains, and the States/UTs have been authorised to device the procedure for supply of foodgrains to such beneficiaries at their homes, or through authorized nominees.

Analysis

whether the statutory scheme contained in the NFSA, the Rules framed thereunder, and the Orders issued by the Central Government under the ECA, there is any bar or prohibition, in case of State Government wishes to provide an additional benefit or facility to the beneficiaries for delivery of food grains/atta at the door step of the beneficiaries, so that the beneficiaries are not required to visit the fair price shop to collect their entitlement of food grains?

The answer to the above question was ‘NO’.

High Court could not find anything to indicate that the State Government was not entitled to extend the benefit to the beneficiaries under the NFSA.

Bench noted that Section 24(2)(b) of the Act obliges the State Governments to ―ensure actual delivery or supply of the food grains to the entitled persons at the prices specified in Schedule- I‖.

Therefore, if, in a given State, the State Government wishes to travel that extra mile to deliver the foodgrains at the door step of the beneficiaries, such an endeavour cannot be said to fall foul of any provision of the NFSA.

“Actual delivery of the ration at the door step of the beneficiary, is covered within the scope of authority and responsibility vested in the State Government under Section 24(2)(b) and Section 32 of the NFSA.”

Issue 2: Whether the GNCTD, in their endeavour to implement their scheme of delivering ration/food grain at the doorstep of the beneficiary, can proceed to appoint new fair price shop owners/dealers by inviting tenders, so as to by-pass the existing framework of fair price shops dealers/owners?

Bench stated that it is the right and prerogative of the State Government to grant and rescind licenses issued for the purpose of establishment of fair price shops.

Hence, no scheme framed by the GNCTD to implement to provisions of the NFSA, and to achieve public distribution of foodgrains can violate or go contrary to either the provisions of the ECA, the provisions of the NFSA; the Orders framed under the ECA, or the Rules framed under NFSA.

Elaborating further, Court observed that the State Government is obliged to ensure that the number of Ration Card holders attached to the fair price shops are reasonable. The State Government is also obliged to fix an amount – as the fair price shops margin, which shall be periodically reviewed for ensuring sustained viability of the FPS operations.

With a view to preserve the viability of the fair price shop operations, the State Government is obliged to allow such shops to sell commodities other than the foodgrains distributed under the TPDS.

Bench further added that without addressing concerns of the existing FPS owners with regard to their financial viability — which is statutorily protected, the GNCTD cannot proceed to implement the impugned scheme.

Issue 3: Actions of the GNCTD are actuated by unfounded prejudice and bias.

Bench asserted that when there are above 2000 FPS owners spread across the NCT of Delhi, there are bound to be malpractices resorted to by some of them. In such individual cases, strict actions are called for and should be taken and appear to have been taken, at least, in some of them. However, the issue is whether the GNCTD can paint all FPS owners with the same brush, unless there is germane and relevant material available and considered, and reach the general conclusion that all of them are indulging in corrupt practices and black marketing, and cite that as the reason for introduction of the impugned Scheme?

Court made it clear that it is not here to give clean chit to any, or all of the fair price shop owners with regard to their business dealings.

Though the Bench observed that, even if the exiting TDPS were to work flawlessly, that would not debar the GNCTD from introducing the door-to-door delivery foodgrains to the beneficiaries. The GNCTD can do it out of its own resources, while adequately addressing the concerns with regard to the financial viability of the existing FPS owners/ dealers.

The impugned Scheme is in breach of the statutory protection afforded to the existing Fair Price Shop owners/licencees, and it is founded upon unsubstantiated generalized conclusion that, all Fair Price Shop owners/licencees are indulging in malpractices taken note of.

Reaching near the conclusion, Court stated that, though it is not for the Courts to either frame the policy of the Government or to evaluate its efficacy or question the wisdom of the Government, however, that does not preclude the Court from examining issues with regard to competence, legality and constitutionality of the policy, or of any part thereof, if a challenge is raised to the same before the Court.

Issue 4: Whether the impugned Scheme is capable of being put into execution/ implementation, when the same has been objected to by the Lieutenant Governor, and the Central Government has not been required to examine the difference of opinion between the Council of Ministers – headed by the Chief Minister on the one hand, and the Lieutenant Governor on another hand?

High Court stated that the difference of opinion between the Council of Ministers and the LG is expected to be the exception, and not the norm. The LG should not act in a mechanical manner, without due application of mind, thereby referring every decision of the Council of Ministers to the President.

“The difference of opinion between the Council of Ministers and the Lieutenant Governor should have a sound rationale, and it should not be resorted to only to obstruct the implementation of the decisions of the Council of Ministers, but should be founded upon affirmative constructionism, and profound sagacity and judiciousness.”

As per the record, the LG was communicated of the Cabinet decision and the said was to implement the proposal for home delivery of ration. The Council of Ministers had approved the proposal contained in the Cabinet Note to implement the home delivery of ration under the TPDS in the NCT of Delhi.

Conduct of the LG

High Court’s observation was that, even if the opinion of the LF for expressing his difference of opinion was eventually not agreed to by the President, and the President decided to go with the decision of the Council of ministers, that by itself, would not mean that the opinion of LG could be described as falling foul of the standards of constitutional trust and morality; the principals of collaborative federalism and Constitutional balance.

High Court stated that, the impugned scheme framed by the Council of Ministers – headed by the Chief Minister, before its implementation, was required to be communicated by the Chief Ministers to the Lieutenant Governor, since it relates to the administration of the affairs of the Capital.

In Court’s view, the Chief Minister was not correct in concluding that the approval of the Centre was neither mandated, nor necessary, under Section 12(2)(h) of the NFSA, or that the matter need not have been referred to the President under the proviso to Article 239AA(4), despite the expressed difference of opinion by the LG.

Conclusion

The impugned Scheme cannot be implemented and rolled out by the GNCTD since the LG expressed his difference of opinion and required that the same be referred for his decision to the president.

Hence, the action of the Council of Ministers headed by the Chief Minister to roll out the impugned Scheme to be still borne, and not in accordance with either Article 239AA(4), or even with Section 44(2) of the GNCTD Act.

In view of the above discussion, the petition was disposed of. [Delhi Sarkari Ration Dealers Sangh Delhi v. Commr. Food and Supplies GNCTD, WP(C) 2037 of 2021, decided on 19-5-2022]


Advocates before the Court:

For the Petitioner: Visheshwar Shrivastav, Advocate

For the Respondents: Dr. Abhishek Manu Singhvi & Mr Rahul Mehra, Senior Advocates with Mr. Gautam Narayan, ASC and Ms. Asmita Singh, Advocate, for the State/ GNCTD.

Ms. Aishwarya Bhati, ASG with Ms.Monika Arora, CGSC and Mr. Yogesh Panwar, Mr. Ameyavikrama Thanvi & Mr.Shoumendu Mukherjee, Advocates for respondent/ UOI.

Mr. Anurag Sarda & Mr. Ashutosh Mishra, Advocates for respondent No.6/ Brandavan Food Products.
Mr. D.P. Singh, Mr. Saumay Kapoor & Ms. Puja Raghavan, Advocates for respondent No.9.

Mr. Talha A Rahman, Mr. M. Shaz Khan, Mr. Harsh V Kediya and Mr.Saurabh Seth, Advocates for Intervenor/ Bandhua Mukti Morcha.

W.P.(C) 13104/2021 and C.M. Nos.41322/2021 & 41323/2021

For the Petitioners: Yash Aggarwal and Chitrakshi, Advocates

For the Respondents: Mr. Manish Mohan, CGSC with Ms.Dhwani Sharma, Advocate for respondent/ UOI.
Mr. Om Prakash, Standing Counsel with Mr.Pradeep Kumar Tripathi & Mr. Anil Kapoor, Advocates for respondent No.4/FCI
Dr. Abhishek Manu Singhvi & Mr.Rahul Mehra, Senior Advocates with Mr. Gautam Narayan, ASC and Ms. Asmita Singh, Advocate, for the State/ GNCTD.

Appointments & TransfersNews

Supreme Court Collegium has recommended the transfer of Mr Justice Satish Chandra Sharma, Chief Justice, Telangana High Court to Delhi High Court.


Supreme Court Collegium

[Notification dt. 17-5-2022]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Manmohan and Dinesh Kumar Sharma, JJ., in a matter with regard to blocking of a website ‘Dowry Calculator’, directed the MeitY committee to give a copy of the order to the creator of the website.

The Counsel of the petitioner had submitted that the petitioner runs a satirical website under the name “Dowry Calculator”, further he contended that the respondents did not follow the prescribed procedure before taking the impugned action of blocking the said website.

Further, the counsel added that no notice was issued, and no hearing was accorded to the petitioner before blocking the website.

On 11th May 2022, the respondents counsel stated that they were willing to give a post-decisional hearing to the petitioner, including an opportunity to take corrective measures, if found necessary. To this, the petitioner agreed to participate.

Hence, High Court directed the Committee constituted by MeitY under the Blocking Rules, 2009 to give a post-decisional hearing to the counsel for the petitioner on 23-5-2022.

Additionally, the High Court expressed that the copy of the original blocking order, after redacting the portion pertaining to the third parties, shall be furnished to the petitioner after 23rd May, 2022.

Court also directed the Committee under the Blocking Rules, 2009 to furnish a report to this Court as well as to the petitioner.

Matter to be listed on 14-9-2022.[Tanul Thakur v. Union of India, WP(C) 13037 of 2019, decided on 11-5-2022]


Advocates before the Court:

For the Petitioner:

Ms. Vrinda Bhandari with

Mr. Abhinav Sekhri, Mr. Tanmay Singh, ms. Anandita Mishra,

Mr. Krishnesh Bapat, Ms. Amala Dasrathi and Ms. Natasha

Maheshwari, Advocates.

For the Respondents:

Ms. Biji Rajesh with Ms. Heena Kochar, Advocates for Mr. Gaurang Kanth, CGSC for UOI.

Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., while addressing a matter, expressed that,

Under Principles of Natural Justice, it is settled law that (a) where at the stage where an authority is merely required to form an opinion as to whether an enquiry should be held into allegations or contraventions, it is not required to give to the notice details of nature of evidence and documents, and (b) where a hearing for determination of guilt is to be held de novo, without any reference to any preliminary enquiry report, then the report need not be disclosed to the party affected.

Petitioner approached the Court praying for mandamus to the respondents to make full disclosure of the evidence collected during investigation of the crime of rape registered against the petitioner in London.

Question for Consideration


Whether petitioner is entitled to disclosure of evidence qua the extradition proceedings under Article 226 of the Constitution of India?

Analysis, Law and Decision


Extradition is a formal process by which one state requests another to deliver/handover an individual accused of having committed an offence for the purposes of trial or prosecution in the requesting state. Extraditable persons may include those charged with a crime but not yet tried, those tried and convicted who have escaped custody, and those convicted in absentia.

High Court expressed that, an essential condition that is mandatory for the process of initiating extradition is that those crimes of which an individual is accused of, must be punishable by law in the requesting state and be committed outside the state of the offender. Along with this, the necessity is that two countries have entered into the Extradition Treaty.

In the instant case, the evidence envisaged under Section 10 of the Extradition Act was produced before the Magistrate for inquiry into extradition proceedings. Court has to arrive at a conclusion where there is prima facie evidence that an extraditable offence may have been committed.

Further, the Court stated that, there is ample jurisprudence to suggest that the scope of inquiry of this Court should be limited unless there are exceptional circumstances, as was held in Pragnesh Desai v. Union of India, 2004 SCC OnLine Del 68.

Hence, the only circumstances where the petitioner’s concern of ‘lack of disclosure of evidence’ would require an intervention from this Court would be if such alleged lack of disclosure amounts to a violation of the Principles of Natural Justice, which was not the case in the present circumstances.

Bench found no violation of the duty to adequate disclosure in the present case.

“…within the domestic law, whereas the courts recognize and act against the presence of “actual bias‟ as a Principle of Natural Justice, “a mere apprehension of bias” is not enough to claim relief by the parties.”

High Court added to its observation that,

A mere unsubstantiated apprehension of discrimination or bias cannot be held to be a sufficient reason to mistrust the state functionaries of the United Kingdom, hence, a case for claiming relief under Article 9 of the Treaty is not made out.

Court also noted that the petitioner had been escaping arrest on frivolous grounds and the present petition was one such attempt.

Conclusion


  • the petitioner has been evading the process of law
  • requisite evidence for extradition proceedings against the petitioner has already been supplied
  • only a prima facie case is to be seen by the ACMM in the course of extradition proceedings
  • no case of violation of scheme or provisions of the Extradition Act or Treaty has been made out
  • there is also no justiciable proof of the petitioner being arraigned due to racial discrimination

Hence, in view of the above writ petition was dismissed. [Jose Inacio Cota v. Union of India, 2022 SCC OnLine Del 1417, decided on 11-5-2022]


Advocates before the Court:

For the petitioner:

Arpit Batra and Abhilasha, Advocates

For the respondent:

Rekha Pandey, SPP for UOI

Nishi Raman, CGSC for R-2

Case BriefsHigh Courts

In the Split verdict on Criminalisation of Marital Rape Exception (MRE), the Division Bench of Delhi High Court pronounced a 393-Pages Judgment, wherein the Justices Rajiv Shakdher and C. Hari Shankar while disagreeing with each other on various issues, very significantly pointed out the issue if  “NEW OFFENCE”.

Let’s break it down


In the opinion of Justice Rajiv Shakdher, on striking down MRE, no new offence would be created and for the said, following reasons were laid down:

  • Since the stated object of the rape law is to protect women from sexual abuse of the worst kind, there is no perceivable rationale for granting impunity to an offending husband in the context of marital rape. Thus, if MRE is exercised, all that would happen is, it would extend the ambit of Section 375 IPC to even offending husbands.
  • If the ingredients of the offence has been changed, then a new offence/new crime would have been created. All that would happen if MRE is truck down is that the offending husband would fall within the ambit of the offence.
  • Reading down, filling gaps (casus omissus) and/or excising parts of an offending provision contained in a statute is a legitimate judicial tool employed by courts for severing what is unconstitutional and retaining that which is construed as lawful.
  • MRE seeks to ring-fence the offender based on his marital relationship with the accused.
  • What is principally punished under the criminal law is the act of omission or commission, as etched out in the IPC. The penal law is act/omission centric and, in most situations, is neutral to who the perpetrator of the crime is.

The ratio of the judgment of the House of Lords in R v. R  in Justice Shakdher’s opinion was squarely applicable, both for the proposition that striking down MRE does not create a new offence and that if such step is taken, the Court need not leave the matter to the legislature.


 Justice C. Harishankar’s Opinion


The proscription on Courts creating an offence by judicial fiat operates as a restraint even on the exercise of the power to strike down a legislative provision as unconstitutional, said Justice Shankar.

  • Judges sitting in courts cannot, on the basis of arguments of Counsel, howsoever persuasive, create offences, or pass judgements which would result in an act, otherwise not an offence, being rendered an offence.
  • A court cannot legislatively stipulate the punishment for the offence. If the Court is not empowered to prescribe punishments, equally, the Court cannot, by its order, convert an act which, prior thereto, was not an offence, into an offence.

[RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404, decided on 11-5-2022]

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., while setting aside the conclusion of the Metropolitan Magistrate and upholding the intervention by Sessions Court expressed that, injuries were found on the person of the deceased who was more than 6 months pregnant during her residence with her husband, hence the onus will be on him under Section 104 of the Indian Evidence Act, 1872 to offer an explanation.

Further, the Court also remarked that,

“…shifting of the focus only to the injection pricks and the damage to the ribs caused by attempts to resuscitate the deceased, was a complete non-application of mind, bordering on perversity.”

A petition was filed under Section 482 of the Criminal Procedure Code by an accused in FIR under Section 498A of the Penal Code, 1860.

When the petitioner’s wife conceived and was carrying twins, she was allegedly given an injection for iron due to which she developed complications and died.

Respondent 2, father of the petitioner’s wife registered an FIR for an offence under Section 498A IPC against the petitioner, who was arrested and subsequently granted bail. While hearing the arguments, MM concluded stating that no prima facie case had been made out for framing of charge against the petitioner.

On being aggrieved with the above, the State preferred a revision before the ASJ who considered the matter and was of the view that the documents of the accused could not have been considered at the time of arguments on the point of charge as has been held by the Supreme Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568.

Analysis and Decision


High Court noted that the MM usurped the powers of the Sessions Court and concluded that the charge under Section 304B IPC could not be made out “by any stretch of imagination”, relying only on the first statements made to the SDM by the parents of the deceased and the observations in the postmortem report that in all probability the cause of death was natural due to some pathological state related to pregnancy rather than an unnatural external event. Hence, the Sessions Court rightly intervened to set aside the said conclusions.

The Bench observed that Section 304B IPC is attracted in cases where a woman dies under circumstances otherwise than normal, within 7 years of marriage, and was subjected, soon before her death, to cruelty or harassment.

With respect to the present matter, Court stated that the injuries were found on the person of the deceased who was more than 6 months pregnant with twins, during her residence with petitioner, and the onus will be on him under Section 104 of the Indian Evidence Act, 1872 to offer an explanation.

In Court’s opinion, the conclusion drawn by the MM were wrong and the same had been corrected by the ASJ by a very well-reasoned order.

Hence, no perversity or miscarriage of justice was evident from the impugned order.[Jaikishan Datwani v. State, 2022 SCC OnLine Del 1380, decided on 9-5-2022]


Advocates before the Court:

For the Petitioner:

Mr Hitendra Kumar Nahata, Advocate.

For the Respondent:

Mr G.M. Farooqui, APP for State with SI Inder Veer Singh. Respondent No.2 in person.

Case BriefsHigh Courts

Delhi High Court: In a split verdict the Division Bench of Rajiv Shakdher and C. Hari Shankar, JJ., laid down their opinion on “Should a husband be held criminally liable for raping his wife who is not under 18 years of age?”

“Women in most parts of the world are treated as individuals, free to enter into contracts in their own right but when it comes to sexual communion with their husbands, their consent counts for nothing.”

–Justice Rajiv Shakdher

Whether or not Exception 2 Section 375 of the Penal Code, 1860 should remain on the statute?

 Remarks before pronouncing the ruling

I must state, with all humility at my command, that as I began to pen this judgment, the enormity of its impact on the society was not lost on me. I do not lay claim to being the repository of all wisdom that must be brought to bear in dealing with a sensitive issue that I am to rule on. 

— Justice Rajiv Shakdher

Whether Marital Rape Exception should be struck down?

Those wanting to strike down Exception 2 to Section 375 IPC, also seek striking down of Section 376B which concerns sexual intercourse by a separated husband with his wife, albeit, without her consent.

Further, prayer to strike down Section 198B of the Code of Criminal Procedure, 1973 which prohibits a Court from taking cognizance of an offence punishable under Section 376B IPC except upon satisfaction of facts which constitutes the offence once a complaint is lodged by the wife against her husband was also filed.

Analysis, Law and Decision

Justice Rajiv Shakdher’s Opinion

Constitutional Viability of classification between married and unmarried women in the context of Article 14

Justice Rajiv Shakdher expressed that there can be no doubt that the legislature seeks to punish offenders who are guilty of committing rape, the said principle is the bedrock on which Section 375 IPC was founded.

Further, it cannot be doubted that there is a differentia between married, separated, and unmarried couples.

Marital Rape Exception grants impunity to an offender based on his relationship with the victim.

In Justice Shakdher’s opinion, the classification was unreasonable and manifestly arbitrary as it seemed to convey that forced sex outside marriage is “real rape” and that the same act within marriage is anything else but rape.

Sex-worker has been invested with the power to say “no”; by the law; but not a married woman.

In a gang rape involving the husband of the victim, the co-accused will face the brunt of the rape law; but not the offending husband only because of his relationship with the victim. A married woman’s ability to say “no” to sexual communion with her husband when he is infected with a communicable disease, or she is herself unwell finds no space in the present framework of rape law. Thus, the rape law as it stands at present is completely skewed insofar as married women are concerned.

Hence, in his view MRE, violates the equality clause contained in Article 14 of the Constitution and MRE with one stroke deprives nearly one-half of the population of equal protection of the laws.

The immediate deleterious impact of the provisions of MRE is that while an unmarried woman who is the victim of the offence of rape stands protected and/or can take succour by taking recourse to various provisions of the IPC and/ the Code, the same regime does not kick-in if the complainant is a married woman.

Conjugal expectation

Conjugal expectations, though legitimate during the subsistence of a joyful marriage, cannot be put at par with unbridled access and/or marital privilege claimed by the husband vis-à-vis his wife disregarding the circumstances which obtain at the given point in time as also her physical and mental condition.

Non-consensual sexual intercourse is not labelled as “rape” to save the institution of marriage

Justice Shakdher agreeing with Karuna Nundy, Advocate stated that sexual assault which falls within the four corners of Section 375 of the IPC needs to be labelled as rape irrespective of whether it occurs within or outside the bounds of marriage.

Invasion of Private Space 

The prosecution of the offending husband for a rape offence would result in invading the private space of a married couple is nothing but an attempt to keep the law at bay even when a heinous crime such as rape has occurred within what some would refer to as “sacrosanct” space.

In Justice Shakdher’s opinion, the above was morally suspect and legally untenable.

The attempt to keep away the law even when a woman is subjected to forced sex by her husband, by demarcating private and public space is to deny her the agency and autonomy that the Constitution confers on her.

Gathering evidentiary material would be difficult

In the opinion of Justice Shakdher, the difficulty in collecting evidentiary material should not be the reason for keeping an offending husband who subjects his wife to forced sex out of the purview of the substantive rape law.

New Offence 

To strike down MRE, would create a new offence, is misconceived for the following reasons:

(i) Firstly, the offence of rape is already defined in the substantive part of Section 375 of IPC. The sexual acts which are described in Clauses (a) to (d) of Section 375 constitute rape if they fall within any of the seven circumstances alluded to in the said provision. There are two exceptions provided in Section 375 and, thus, those who come within the ambit of the exception cannot be prosecuted for the offence of rape. The first exception concerns a circumstance where the woman undergoes a medical procedure or intervention. The second exception (which is the exception under challenge) concerns the act of sexual intercourse or sexual acts which involve a man and his wife who is not under 18 years of age. The exception clearly subsumes the main provision without providing a determining principle or rationale as to why husbands who have subjected their wives to forced sex should not face the full force of the rape law. Since the stated objective of the rape law is to protect women from sexual abuse of the worst kind i.e., rape, there is no perceivable rationale for granting impunity to an offending husband in the context of marital rape. Thus, if MRE is excised, all that would happen is, it would extend the ambit of Section 375 to even offending husbands.

(ii) Secondly, a new offence/new crime would perhaps have been created if the ingredients of the offence had changed. [See People v. Liberta] It is no one’s case that the ingredients of the offence have changed; all that would happen if MRE is struck down is that the offending husband would fall within the ambit of the offence.

iii) Thirdly, reading down, filling gaps (casus omissus) and/or excising parts of an offending provision contained in a statute is a legitimate judicial tool employed by courts for severing what is unconstitutional and retaining that which is construed as lawful. [See C.B. Gautam v. Union of India (1993) 1 SCC 78; Navtej Singh Johar; and Harsora v. Harsora.]

(iv) Fourthly, MRE (Exception 2 to Section 375 of the IPC) seeks to ring- fence the offender based on his marital relationship with the accused. The main provision is neutral to the relationship that may or may not subsist between the offender and the victim. Thus, a person who is a stranger or is in a live-in relationship with the victim can be prosecuted for the offence of rape. As a matter of fact, the legislature pursuant to the Criminal (Amendment) Act, 2013 has brought within the sway of rape law (Section 375) even separated husbands by inserting Section 376B in Chapter XVI of the IPC; a provision which is challenged by the petitioners on different grounds.

(v) Fifthly, what is principally punished under the criminal law is the act of omission or commission, as etched out in the IPC.

MRE violates Article 21 of the Constitution

The fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading or dehumanizing.

“Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally.”

 “Non-consensual sex in marriage is an antithesis of what matrimony stands for in modern times i.e., the relationship of equals.”

MRE violates Articles 15 and 19(1)(a) of the Constitution

Continuance of MRE, violates Article 15 of the Constitution since it triggers discrimination against women based on their marital status. The said exception impairs and abstain the power to negotiate contraception, to protect themselves against sexually transmissible disease and to seek an environment of safety, away from the clutches of her abuses.

MRE is violative of Article 19(1)(a) of the Constitution as it violates the guarantee given by the Constitution concerning freedom of expression, amongst others, to married women who are citizens of this country.

Separated husbands

Since Justice Shakdher concluded that granted impunity to offending husbands under the MRE is violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution, the class which comprises separated husbands would also necessarily have to be dealt with as any other rapist.

“…separated husbands would suffer the same punishment, as prescribed for any other rapist under Section 376(1) of the IPC, as that would be the logical sequitur of striking down MRE.”

Conclusion

(i) That the impugned provisions [i.e. Exception 2 to Section 375 (MRE) and Section 376B of the IPC as also Section 198B of the Code], insofar as they concern a husband/separated husband having sexual communion/intercourse with his wife (who is not under 18 years of age), albeit, without her consent, are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and, hence, are struck down.

(ii) The aforesaid declaration would, however, operate from the date of the decision.

(iii) The offending husbands do not fall within the ambit of the expression “relative” contained in Section 376 (2)(f) of the IPC and, consequently, the presumption created under Section 114A of the Evidence Act will not apply to them.

(iv) Certificate of leave to appeal to the Supreme Court is granted under Article 134A(a) read with Article 133(1)(a)&(b) of the Constitution as the issue involved in this case raises a substantial question of law which, in my opinion, requires a decision by the Supreme Court.

Justice Shakdher concluded that Exception 2 to Section 375 and Section 376B of the IPC as well as Section 198B of the Code of Criminal Procedure (CrPC), as they relate to husband or separated husband having sexual intercourse with his wife without her consent, are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and therefore deserve to be struck down.

Justice C. Hari Shankar’s Opinion

Justice Shankar stated that it is not to judge whether non-consensual sex within marriage ought, or ought not, to be punished or, if it is, to opine appropriate punishment that should visit the perpetrator of the act.

Re: Article 14

Justice Shankar stated that the act of sex, when it takes place between parties who are joined by marriage, declares the impugned Exception, is in no case rape.

“Applying the “intelligible differentia” test, the impugned Exception would, therefore, infract Article 14 only if the relationship of marriage, between the man and woman involved in the act, does not provide any intelligible differentia having a rational nexus to the object sought to be achieved by the impugned Exception.”

The ‘institution of marriage’, and the intelligible differentia that results

Petitioners completely failed to note the uniqueness of marriage as an institution, its peculiar demographics and incidents, and the emotional, psychological, social and other complex equations that exist between a wife and a husband.

“Between a husband and wife, who spend their days and nights together, living in a house which, by the dint of their joint effort, they make a home, there exists a bond which defies, and indeed transcends, all known and identifiable parameters.”

Further, Justice Shankar added that, there can be no comparison, whatsoever, between the relationship between a husband and a wife, with any other relationship between man and woman. It is for this reason that there is an enforceable legal right – which even Ms Nundy acknowledged – of each party in a marriage, to cohabit with, and for the consortium of, the other.

Petitioner’s counsel completely failed to accord to the marital relationship, the status and importance it deserves.

“Marriage is an institution which epitomizes, at the highest level, the most sublime relationship that can exist between man and woman.”

In this relationship, given its unique character and complexity, the legislature has, advisedly, felt that no allegation of “rape” has place. Sex between a wife and a husband is, whether the petitioners seek to acknowledge it or not, sacred. In no subsisting, surviving and healthy marriage should sex be a mere physical act, aimed at gratifying the gross senses. The emotional element of the act of sex, when performed between and wife and husband, is undeniable. The marital bedroom is inviolable. A legislation that seeks to keep out, from the parameters of such a relationship, any allegation of ‘rape’, in my view, is completely immune to interference.

—Justice Shankar

In his view, introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist if he has, on one or more occasions, sex with her without her consent, would be completely antithetical to the very institution of marriage.

Adding to the above observation, it was expressed that,

“Marriage, unquestionably, does not entitle a husband to coerce his wife into sex, if she is not inclined. The impugned Exception does not, however, either expressly or by necessary implication, confer, on the husband in a marriage, an entitlement to insist on sex with his wife, against her willingness or consent.”

 “The expectation of sex of the husband, with his wife is, therefore, a legitimate expectation, a healthy sexual relationship being integral to the marital bond.”

Elaborating further, Justice Shankar remarked that, any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, is not only unjustified, but ex facie unrealistic.

Stating that, if the legislature, decided to treat non-consensual sex by a man with a woman, where the woman is a stranger, as rape, and non-consensual sex by a husband with his wife, as not rape, Justice Shakdher was unable to subscribe to the submission that the distinction violates Article 14 of the Constitution of India.

Re. the argument that the impugned Exception creates “three classes of victims”

In the case of an act of non-consensual sex between a husband and wife, there is no societal ramification whatsoever, unlike in the case of a woman raped by a stranger, as the act takes place within the privacy of the marital bedroom and, more empirically, because the man and the woman are married.

Conjugal right v. Conjugal expectation

The impugned Exception does not, either directly or by necessary implication, state that, by reason of marriage, a husband has a right to have sex with the wife against her will or consent. All that it says is that, if he does so, he, unlike a stranger committing such an act, cannot be treated as a rapist. There is a clear intelligible differentia between the two situations, stated Justice Shankar.

“The impugned Exception does not seek, directly or indirectly, to enforce a non-enforceable conjugal right, or even a conjugal expectation.”

Justice Shankar elaborated its observation stating that, the impugned Exception, applies to subsisting and surviving marriages, where the husband and wife are together, and not separated.

“In a subsisting, and surviving, marriage, where the husband and wife are staying together and cohabiting, if the legislature feels that an allegation of rape – and, consequently, the chance of the husband being called a rapist – should find no place even if, on one occasion or the other, the wife is compelled to have sex with the husband without willingness or consent, can it be said that the legislature acts unconstitutionally?”

In Justice Shankar’s opinion, this Court cannot approach the issue before it with a view of pronouncing on whether non-consensual sex within marriage ought to be punished, or not, and, if it feels that it should, find a way of doing so. That is exclusively the province of the legislature.

Consent and the ‘effect doctrine’

In Court’s opinion, there was nothing in the impugned Exception which obligated a wife to consent to having sex with her husband, wherever he so requests. It does not even obliquely refer to consent, or want of consent.

Conclusion

(i) the petitioners’ case is premised on a fundamentally erroneous postulate, for which there is no support available, either statutory or precedential, that every act of non-consensual sex by any man with any woman is rape,
(ii) the impugned Exception does not violate Article 14, but is based on an intelligible differentia having a rational nexus with the object both of the impugned Exception as well as Section 375 itself,
(iii) the impugned Exception does not violate Article 19(1)(a),

(iv)  the impugned Exception does not violate Article 21,

(v)  none of the indicia, on which a statutory provision may  be struck down as unconstitutional, therefore, can be said to exist, and

vi) in such circumstances, the Court cannot substitute its subjective value judgement for the view of the democratically elected legislature, hence challenges laid by the petitioners to the constitutional validity of Exception 2 to Section 375 and Section 376B of the IPC, and Section 198B of the Cr PC, have to fail.

Lastly, Justice Shankar concurred with the opinion of Justice Shakdher in his decision to grant certificate of leave to appeal to the Supreme Court as the present matter involved substantial questions of law.[RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404, decided on 11-5-2022]


Advocates before the Court

….. Petitioner
Ms Karuna Nundy with Mr Mukesh Sharma and Mr Raghav Awasthy,

….. Respondent
Mr Tushar Mehta, SG and Mr Chetan Sharma, ASG with Ms Monika Arora, CGSC along with Mr Vinay Yadav, Mr Amit Gupta, Mr Akshya Gadeock, Mr Rishav Dubey, Mr Rajat Nair, Mr Sahaj Garg and Mr R.V. Prabhat, Advs.

for UOI.
Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advs.
Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.
Mr Amit Lakhani and Mr Ritwik Bisaria as Intervenors for Men’s Welfare Trust.

W.P.(C) 5858/2017 & CM No.45279/2021

… Petitioner
Mr Colin Gonsalves, Sr. Adv. With Ms. Olivia Bang, Ms Sneha Mukherjee, Ms Mugdha and Ms Aimy Shukla, Advs

….. Respondents

Mr Ruchir Mishra, Mr Sanjiv Kumar Saxena, Mr Mukesh Kumar Tiwari and Mr Ramneek Mishra, Advs. for UOI. Mr Gautam Narayan, ASC, GNCTD with Ms Nikita Pancholi, Adv.

Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advocates.

Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.

Mr R.K. Kapoor, Advocate for applicant in CM 19948/2016.

W.P.(C) 6024/2017

…Petitioner

Ms Karuna Nundy, Ms Ruchira Goel, Mr Rahul Narayan, Mr Nitish Chaudhary, Ms Ragini Nagpal, Ms Muskan Tibrewala, Mr Utsav Mukherjee and Mr Shashwat Goel, Advs.

…. Respondent
Mr Chetan Sharma, ASG with Mr Anil Soni, CGSC along with Mr Devesh Dubey, Mr Vinay Yadav, Mr Amit  Gupta, Mr Akshya Gadeock, Mr Rishav Dubey, Mr Sahaj Garg and Mr R.V. Prabhat, Advs. for UOI.
Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advocates.
Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.

W.P.(CRL) 964/2017

…… Petitioner

Mr Sahil Malik, Adv.

….. Respondents Ms Nandita Rao, ASC for State.

Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advocates.

Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.


Read More:

Split Verdict on Criminalisation of Marital Rape Decision: One strikes down the exception, one upholds [Report to be updated]

Husband owns wife’s body after marriage: What is holding back India to criminalise this misogyny?

Case BriefsHigh Courts

Delhi High Court: In a matter wherein Starbucks trademark ‘frappuccino’ was being infringed, Jyoti Singh, J., while observing that, FRAPPUCCINO trademarks have acquired formidable reputation and goodwill in India, awarded Starbuck Rupees 2 lakhs damages and 9 lakh costs.

Instant suit had been filed to seek a decree of permanent injunction restraining the defendants, their partners, etc. from infringing the plaintiff’s trademark “FRAPPUCCINO” either alone or with any prefix or suffix or any other confusing and deceptively similar trademark in relation to their goods, services and business as well as passing off.

Plaintiff also sought an award for damages and a decree for rendition of accounts of profits earned by the defendants by using the FRAPPUCCINO marks was sought.

In 2019, this Court had granted an ex parte and interim injunction in favour of the plaintiff and against the defendants.

Factual Matrix


It was averred that the plaintiff uses the trademark FRAPPUCCINO and variations thereof for its widely popular hand crafted blended cold beverages and the said mark has been registered in over 185 countries and territories.

To the above, it was added that the plaintiff had obtained top-level domain name frappuccino.com in the year 1987, which was redirected to the parent website of the plaintiff and has been a prominent part.

Further, it was stated that, FRAPPUCCINO marks constitute an invaluable intellectual property of the Plaintiff and Plaintiff has been vigilant in protecting its property rights not only through registrations but enforcement actions, ranging from opposing the trademark applications to legal actions in Courts, wherein positive decisions have been given both by the Foreign Courts as well as Indian Courts.

What was the trigger?

The plaintiff had received information that defendant 2 was operating a café/restaurant wherein defendant 1 was selling/serving beverages under the name ‘BUTTER SCOTCH FRAPPUCCINO’ and ‘HAZEL NUT FRAPPUCCINO’, without Plaintiff’s permission, authorization or license.

References to the trademark FRAPPUCCINO were prominently made on the printed menu card as well as on the electronic menu card of the Defendants’ Cafe/restaurant and latter was uploaded on third-party listing portal www.zomato.com for promotion, advertisement and generating business.

Even after sending a cease-and-desist notice, the defendants continued to sell the impugned products, hence the present suit was filed.

Analysis and Decision


High Court expressed that the plaintiff’s FRAPPUCCINO trademarks have acquired a formidable reputation and goodwill in India and the defendants have used identical marks with respect to similar goods and the trade channels and the customer base are also common.

In view of the above, the triple identity test was also satisfied.

Therefore, the plaintiff proved that the use of the impugned marks by the defendants amounted to infringement of Plaintiff’s FRAPPUCCINO trademarks. It was also proved that the defendant’s intent was to pass off their goods as that of the plaintiff and a case of passing off was also established.

The claim for damages was based on presumptions that the defendants would have sold 400 beverages, but in Court’s opinion, the same was based on conjectures and surmises and no evidence had been led to support the claim of damages.

Court added that, the defendants were guilty of infringement and notional damages could be granted in terms of the decision in Indian Performing Right Society v. Debashis Patnaik, 2007 (34) PTC 201 Del.

Therefore, damages to the tune of Rs 2,00,000 were awarded in favour of the plaintiff and a Cost of Rs 9,60,100 was awarded in favour of the Plaintiff and against the Defendants.[Starbucks Corpn. v. Teaquila A Fashion Café, 2022 SCC OnLine Del 1381, decided on 6-5-2022]


Advocates before the Court:

For the plaintiff:

Ms. Priya Adlakha and Ms. Rima Majumdar, Advocates.

For the defendants: Defendants are ex parte

Hot Off The PressNews

In the batch of petitions filed asking for striking down marital rape to be an exception under the Penal Code, 1860, Delhi High Court passed a split verdict.

SPLIT VERDICT


Justice Rajiv Shakdher held that Exception 2 to Section 375 IPC, which exempts the husband from the offence of rape for forcible sex with the wife, is unconstitutional.

Justice C. Shankar held that Exception 2 to Section 375 IPC is not unconstitutional and there is an intelligible differentia. In his opinion, the challenge cannot sustain.

[Judgment copy awaited]


Also Read:

Marital Rape will be criminalised or not? Judgment to be pronounced | Stay tuned to know the verdict

 

Husband owns wife’s body after marriage: What is holding back India to criminalise this misogyny?

Hot Off The PressNews

Delhi High Court will be soon pronouncing its ruling with respect to a batch of petitions filed asking for striking down marital rape to be an exception under the Penal Code, 1860.

How can killing your own wife be criminal but indulging in sexual activity without her consent (forcibly) be not a criminal activity?

Delhi High Court to decide on Exception 2 to Section 375 of the Penal Code, 1860. (IPC)

What does Section 375 Exception 2 state?


Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

On 21-2-2022, the Delhi High Court had reserved its order.

[To be updated once Judgment is pronounced]


Also Read:

Husband owns wife’s body after marriage: What is holding back India to criminalise this misogyny?

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., held that if no offence is attributed to the company, its Directors and other persons responsible for the conduct of its business cannot eb saddled with any liability.

The petitioner had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent. It was stated that, the commercial space owned by the petitioner had been let out upon terms and conditions in the Rent Agreement.

The above-said rent agreement was executed between the petitioner and the respondent’s company. Further, in March-April, 2013 the respondent was alleged to have issued five cheques duly signed by the Managing Director to discharge the company’s liability to pay the rent.

The above-said cheques were bounced; hence the complaint was filed.

Analysis and Decision

High Court observed that the Company upon which the primary liability rests and a person who is sought to be made vicariously liable for an offence of which the principal accused is a company, would need to have a role to play in relation to the incriminating act.

Section 141 of the N.I. Act operates only when the offence under Section 138 of the N.I. Act is committed by a company.

Further, Court stated that the Company being the primary accused must be found to have committed an offence. Thereafter, through the legal fiction created by Section 141 of the N.I. Act, the Directors and other persons responsible for the conduct of its business also become vicarious liable.

In the present matter, all the averments were against the respondent, who was described as Managing Director.

There was no pleading which suggested that the Company had committed any offence.

When no offence is attributable to the Company, it is not possible to attach liability on the Managing Director by the deeming provisions of Section 141 of the N.I. Act.

Bench added that, amendments of simple technical infirmities alone can be allowed but not the filing of a fresh complaint with improved pleadings in the garb of the amendment.

Hence, in view of the above discussion, Court denied grant permission to amend the complaint.

Therefore, the petition was dismissed. [Hari Shamsher Kaushik v. Jasbir Singh, 2022 SCC OnLine Del 1379, decided on 9-5-2022]


Advocates before the Court:

For the Petitioner: Mahesh K. Mehta, Advocate

For the Respondent: None

Appointments & TransfersNews

The Supreme Court Collegium has approved the proposal for the elevation of the following Advocates as Judges in the Delhi High Court:

1. Shri Vikas Mahajan,

2. Shri Tushar Rao Gedela,

3. Ms. Manmeet Pritam Singh Arora,

4. Shri Sachin Datta,

5. Shri Amit Mahajan,

6. Shri Gaurang Kanth, and

7. Shri Saurabh Banerjee.


Supreme Court of India

[Statement dt. 4-5-2022]

Legal RoundUpWeekly Rewind


TOP STORY OF THE WEEK


Anganwadi Workers/Helpers entitled to payment of gratuity; ‘Time to take serious note of their plight’ 

In a relief to the Anganwadi workers and helpers working tirelessly at the grassroot level, the Supreme Court has held that the Anganwadi Workers and Helpers are employed by the State Government for wages in the establishments to which the Gratuity Act applies, hence, they are entitled to payment of Gratuity.  

The Court also observed that the Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers, apart from rendering pre-school education. And for all this, they are being paid very meagre remuneration and paltry benefits. 

Therefore, it is high time that the Central Government and State Governments take serious note of the plight of Anganwadi Workers/Helpers who are expected to render such important services to the society. 

Read more… 


SUPREME COURT


Producing false/fake certificate is a grave misconduct; Dismissal of service justified in such cases 

In a case where an employee had produced a fake certificate for seeking employment, the Supreme Court has held that producing the false/fake certificate is a grave misconduct and dismissal of service is a justified punishment in such cases. 

In the case at hand, while the disciplinary authority had imposed a punishment of dismissal from service on the delinquent, the Bombay High Court had directed reinstatement of the respondent without any back wages and other benefits.  

The Supreme Court, however, agreed with the disciplinary authority’s decision and observed:  

“The question is one of a TRUST. How can an employee who has produced a fake and forged marksheet/certificate, that too, at the initial stage of appointment be trusted by the employer? Whether such a certificate was material or not and/or had any bearing on the employment or not is immaterial. The question is not of having an intention or mens rea. The question is producing the fake/forged certificate.” 

Read more… 


‘Can’t allow mass absorption of over 11,000 workers based on a flawed Report’. SC forms new Committee to put an end to the long drawn LIC versus temporary employees’ battle  

In a long drawn battle between Life Insurance Corporation of India (LIC) and its temporary/badli/part-time employees over claim for absorption, a 3-judge bench of Supreme Court has appointed a two-member committee to carry out fresh verification of the claims of workers who were working between 20 May 1985 and 4 March 1991 and who claim to have been employed for at least 70 days in Class IV posts over a period of three years or 85 days in Class III posts over a period of two years shall be carried out. 

Finding the report of the previous committee faulty, the Supreme Court observed, 

“A public employer such as LIC cannot be directed to carry out a mass absorption of over 11,000 workers on such flawed premises without following a recruitment process which is consistent with the principles of equality of opportunity governed by Articles 14 and 16 of the Constitution. Such an absorption would provide the very back-door entry, which negates the principle of equal opportunity and fairness in public employment.” 

Read all about the newly formed committee and its tasks and timelines on the SCC Online Blog.  

Read more… 


High Courts


Madras High Court| Ban the practice of two-finger test on victims of sexual offences by medical professionals

Stating that two-finger test cannot be permitted to be continued, the Division Bench of Madras High Court directed the State Government to ban the practice of two-finger test on victims of sexual offences by the medical professionals. 

Court observed that, 

“…it is necessary for us to put an end to the practice of the two-finger test. We find that the two-finger test is being used in cases involving sexual offences particularly, on minor victims.” 

Read more… 


Bombay High Court| Advocate to maintain dignity & decorum of Court, no room for arrogance and no license to intimidate Court

In a matter wherein an Advocate alleged that the Court was giving priority to certain matters and to certain advocates, the Court observed that an advocate as an Officer of the Court is under an obligation to maintain the dignity and decorum of the Court. There is no room for arrogance and there is no license to intimidate the Court, make reckless accusations and allegations against a Judge and pollute the very fountain of justice. 

Bench also expressed that, “It has to be borne in mind that casting scurrilous aspersions not only has the inevitable effect of undermining the confidence of the public in the judiciary but also has the tendency to interfere with the administration of justice.” 

Read more… 


Bombay High Court| Declaration of reciting religious verses at someone’s residence: Act of breaching personal liberty of another person?

Stating that, “Great power comes with greater responsibility”, the Division Bench of Bombay HC expressed that, the expectation of responsible behaviour or responsible conduct from those persons who are active in public life cannot be an extra expectation but would be a basic one. 

High Court stated that the declaration of the petitioners that they would recite religious verses either in the personal residence of another person or even at a public place is firstly,  encroachment upon another person’s personal liberty and secondly, if a declaration is made with particular religious verses would be recited on the public street, the State government is justified in carrying an apprehension that such act would result in disturbance of law and Order. 

Read more… 


Delhi High Court| Whether absence of rule of law or utter disregard for the same propels a country towards inevitable ruin? 

Expressing that, attempts to circumvent or undermine judicial decisions need to be viewed seriously in order to ensure that the functioning of our country is unhindered, especially during turbulent times, Delhi High Court held that, 

“It is only the rule of law which not only cements the civilised functioning of a country, but also drives a country towards progress and development.” 

With regard to contempt, the Court observed that, 

“The underlying purpose of the law of contempt is meant to serve public interest and build confidence in the judicial process. This flows from how the functioning of a democratic society is sustained by the rule of law and wilful violation of the same would enable anarchy.” 

Read more… 


Legislation Updates 


IFSCA issues framework for FinTech entity in IFSCs 

The International Financial Services Centres Authority (IFSCA) has issued a detailed “Framework for FinTech Entity in the IFSCs” in order to develop and regulate financial products, financial services and financial institutions in the International Financial Services Centres (IFSC) and to encourage promotion of financial technologies (‘FinTech’) across the spectrum of banking, insurance, securities, and fund management in IFS. 

Read more… 


SEBI (Custodian) (Amendment) Regulations, 2022 

The Securities and Exchange Board of India has issued the Securities and Exchange Board of India (Custodian) (Amendment) Regulations, 2022 to amend Securities and Exchange Board of India (Custodian) Regulations, 1996. 

The amendment modifies Regulation 8 dealing with Procedure and grant of certificate and inserts clause (7) to provide that a custodian holding a certificate of registration as on the date of commencement of the Securities and Exchange Board of India (Custodian) (Amendment) Regulations, 2022, may provide custodial services in respect of silver or silver related instruments held by a mutual fund only after taking prior approval of the Board. 

Read more…  


Income-tax (Ninth Amendment) Rules, 2022 

On April 21, 2022, the Central Board of Direct Taxes (CBDT) has issued the Income-tax (Ninth Amendment) Rules, 2022 to amend Income-tax Rules, 1962 and introduces Conditions for furnishing return of income by persons referred in section 139 (1) of the Act.  

Read more … 


 

 

Case BriefsHigh Courts

Delhi High Court: C. Hari Shankar, J., expressed that, Unwarranted and needless hypersensitivity is not expected of Judicial Officers, who are expected, at all times to maintain composure and poise, befitting the office they hold.

In the present matter, the petitioner was aggrieved by the imposition of costs of Rs 5 lacs for misusing the process of law and causing inconvenience to the Government machinery by the Additional Rent Controller.

Analysis and Decision

High Court while analysing the matter, stated that it was unable to understand the reason for the ARC to have expressed the sentiments that he had chosen to express in the impugned order.

The Bench found no justification for the ARC to take exception at all, much less such a serious exception, to the fact that the petitioner had fairly agreed to allow the respondents to continue in the tenanted premises for two more months.

Further, the Court added that it was ironical that an eminently fair attitude, exhibited by the petitioner aroused the wrath of the ARC and invited, on the head of the petitioner costs of Rs 5 lacs.

Court expressed its discomfiture at the manner in which the impugned order was passed and in order to not prejudice the career of the ARC, who was a young Judicial Officer, Bench deemed it appropriate to close the present matter by setting aside the impugned order insofar as it imposed the costs of Rs 5 lacs with a word of advice to the ARC to ensure that, in future, a great degree of temperance is exhibited by him in the discharge of his judicial functions.

In view of the above, the petition was allowed. [Suchit Gupta v. Gaurav Saini, 2022 SCC OnLine Del 1273, decided on 28-4-2022]


Advocates before the Court:

For the Petitioner: Mr Kunal Kalra, Advocate

Case BriefsHigh Courts

Delhi High Court: Prateek Jalan, J., addressed the issue of whether visits of sundry family members to the matrimonial home, without permanency or the intention to treat the premises as a shared household, would render them members of the “shared household.

Respondent 1 in the present proceedings was the petitioner’s husband and respondent 2 was her mother-in-law. Respondent 3 was the petitioner’s sister-in-law and respondent 4 was the husband of respondent 3.

It was stated that the petitioner had filed an application under Sections 12, 17, 18, 19, 20 and 22 of the DV Act and all the four respondents were arrayed as accused. A notice was issued, and the matter was adjourned for consideration on the point of summons to other respondents. Further, MM issued summons to respondent 2 also, but came to the conclusion that respondents 3 and 4 had not been residing in the shared household, hence no summons was issued to them.

The petitioner had challenged the order by way of an appeal under Section 29 of the DV Act and the appellate court affirmed the view taken by the MM.

Analysis, Law and Decision

In the present matter, Court noted in the complaint that the petitioner had mentioned in the memo of parties that the respondents 1 and 2 were residents at the matrimonial home, whereas respondents 3 and 4 were residents of BB- 18C Janakpuri, New Delhi.

The complainant had lived with the respondents 1 and 2 in a shared household in Jalandhar, and the joint family consisted of the petitioner and the respondents 1 and 2.

Respondents 3 and 4 being the sister-in-law of the petitioner and her husband, visited often for various lengths of time, but there was no suggestion that they were, or intended to be, permanently resident in the said household.

High Court expressed that,

Just as the woman living fleetingly or casually at different places, would not convert those places into a “shared household”, the visits of sundry family members to the matrimonial home, without permanency or the intention to treat the premises as shared household, would not render them as members of the “shared household”.

Therefore, the view taken by the MM and the Appellate Court did call for interference under Section 482 of the CrPC. Hence the petition was dismissed. [Bharti Anand v. Sushant Anand, 2022 SCC OnLine Del 1191, decided on 26-4-2022]


Advocates before the Court:

For the Petitioner: C.P. Vig, Advocate

For the Respondents: None

Case BriefsHigh Courts

Delhi High Court: In a maintenance matter, Subramonium Prasad, J., expressed that, if a husband has sufficient means, he is obligated to maintain his wife and children and not shirk away from his moral and familial responsibilities

A petition was filed challenging the order wherein the Family Courts directed the petitioner/husband to pay interim maintenance of Rs 20,000 per month to the respondent/wife.

Analysis, Law and Decision


Section 125 CrPC was enacted to ensure that women and children are provided maintenance by the husband so as to protect them from a life of potential vagrancy and destitution.

Supreme Court had consistently upheld that the conceptualization of Section 125 was meant to ameliorate the financial suffering of a woman who had left her matrimonial home; it is a means to secure the woman’s sustenance, along with that of the children, if any.

“…if a husband has sufficient means, he is obligated to maintain his wife and children and not shirk away from his moral and familial responsibilities.”

The underlying purpose and social context of Section 125 CrPC was examined by the Supreme Court in Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353.

Hence, the Court expressed that the purpose of Section 125 CrPC is to provide a speedy remedy for the supply of food, clothing and shelter to the deserted wife.

With regard to interfering with the order of the Courts below, the Bench stated that,

Judicial discipline, circumspect this Court from interfering in an Order rendered by the Courts below and only justifies interference if the Order is egregious in nature and suffers from legal perversity.

Bench found the impugned order passed by the Family Court to be well reasoned, hence it did not warrant any interference. [Jitendra Kumar Garg v. Manju Garg, 2022 SCC OnLine Del 1180, decided on 26-4-2022]


Advocates before the Court:

For the Petitioner:

Mr. Rajinder Mathur and Akshat Singhal, Advocates

For the Respondent:

None

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., expressed that the issue of whether in the absence of a third party, the refundable security deposit can be claimed would be for the Arbitrator to determine.

The petitioner sought the appointment of an Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996.

It was stated that the petitioner had purchased the ground 7th, 8th, 9th, 10th, 11th and 12th floors of New Tower, Bhikaji Cama Place, R.K. Puram, Delhi along with respective car parking areas at Hyatt Complex from respondent vide four registered Sale Deeds along with perpetual right to use the car parking area.

Further, the petitioner transferred and assigned all rights and title in the premises to IndusInd Bank Limited along with the perpetual right to use the car parking area.

Thereafter, the petitioner sought a refund of the security deposit of Rs 15 crores deposited by the petitioner pursuant to the Refundable Security Deposit Agreement entered between the petitioner and the respondent.

Since, the claim of the petitioner now was in terms of the Refundable Security Deposit Agreements, Clause 7 whereof provides for arbitration, the petitioner invoked arbitration and thereafter filed the present petition.

Analysis and Decision

The petitioner sought reference to arbitration in terms of Clause 7 of the Agreements. However, Clauses 2 and 3 of the Agreements were also integral parts which provide that only on the third party providing the Refundable Security Deposit to the respondent, the petitioner can claim Refundable Security Deposit and the third party is neither a party to the agreement nor party to the present petition.

Supreme Court’s decision in Cholro Controls India (P) Ltd. v. Severn Trent Water Purification Inc., (2013) 1 SCC 641, though dealing with an international arbitration under Section 45 of the Act, held that even third parties who are not signatories to the arbitration agreement can be joined in arbitration. It laid down categories where the third parties can be impleaded to the arbitration and held that the expression “claiming through them” should be construed strictly.

High Court observed that,

“The key rationale for holding that the courts’ review of the arbitration agreement should be limited to a prima facie standard is the principle of competence-competence.”

“The rule of priority in favour of the arbitrators is counterbalanced by the courts’ power to review the existence and validity of the arbitration agreement at the end of the arbitral process.”

The Bench held that,

“Once a valid arbitration agreement exists between the parties, the issue whether the petitioner is entitled to any relief in the absence of a third party to the agreement or that third party is required to be impleaded in the proceedings, is covered by the Doctrine of Competence-Competence and it will be for the Arbitrator to decide the said issue.”

Court requested Justice Usha Mehra, a former Judge of this Court to arbitrate the disputes between the parties.

In view of the above, the petition was disposed of. [Vistrat Real Estates (P) Ltd. v. Asian Hotels North Ltd., 2022 SCC OnLine Del 1139, decided on 22-4-2022]


Advocates before the Court:

For the Petitioner: Ms Ranjana Roy Gawai, Advocate.

For the Respondent: Mr Sidhant Kumar and Ms Manyaa Chandhok, Advocates.

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