Hot Off The PressNews

Delhi High Court: Prathiba M. Singh, J. has upheld the Delhi University’s (DU) decision to conduct open-book examinations (OBE) for final year undergraduate students, set to start from the 10th of August, 2020.

The Court was hearing a plea filed by multiple students of the University, which sought to challenge the university’s decision to conduct OBEs, contending that it would be discriminatory for students who did not have internet, books and/or other resources for preparing for the exam or were stuck in Covid-19 containment zones. Moreover, the ability and preparedness of the University to conduct the exams, especially in light of the possibility of various technical problems, had been questioned. The University argued that conducting OBEs was in accordance with the UGC’s guidelines to conduct exams in a time-bound manner, and students would only require basic technology to appear for the examination. It contended that holding OBEs was to prevent students from assembling in one hall, intended at preventing the spread of Covid-19.

The High Court ruled in favour of DU, allowing it to conduct the OBEs from the 10th of August, 2020. However, the Court also issued several guidelines which the University would have to follow in conducting the examinations, such as uploading question papers on a portal and emailing them to students individually, giving students an extra hour to upload their answer sheet, sending auto-generated email to each student to confirm the receipt of the answer sheet by the University, etc. The Court observed that a Grievance Redressal Committee would have to be formed by the DU to resolve issues being faced by students, Common Service Centres would be made available for students with no cyber infrastructure, and students who fail to appear in the OBEs would have the option to appear in physical examinations in September; all of these would serve as safeguards for the students.


Source: Hindustan Times

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., constituted a committee to finalise process in regard to the issuance of digital degree certificates for the students of Delhi University, while directing the same Bench also observed that,

Obtaining a degree, which should have been a cause of celebration, has been turned into a complete nightmare for all these doctors who ought to have been busy rendering medical services during the pandemic.

Petitions filed were with the intent to reflect upon the sorry state of affairs at the Delhi University. Petitioners are all doctors and graduated their MBBS course in the year 2018 and 2019 and yet have been struggling to get their original degree certificates.

After failed approaches to the University, petitioners have reached out to the Court.

In an earlier petition, Court had observed that DU ought to make alternative arrangements during the COVID-19 pandemic for issuance of digital certificates, digital mark sheets and digital transcripts online along with digital signatures and security features.

Reason cited by DU for delay in issuance of the degree certificate was non-availability of paper and the fact that DU’s contract with the printer had expired.

Further it was observed that, Court was informed that steps were being taken for printing the degree certificates in an expedited manner. Despite this being the position, the tender for printing degree certificates was not finalized and it was only yesterday i.e., 3rd August, 2020 that the tender was opened. 

In an affidavit it has been informed to the Court that a Committee has been formed for looking after the security of sensitive data of academic awards, manpower requirement, University revenue, etc. 

“…looking at the urgency for the degree of the petitioners specially the medical doctors/professionals who have already completed their degree from University of Delhi and also other urgent specific cases, the University will initiate measures so that their degree can be delivered to them on priority basis and for that purpose the related data shall be given to the Digilocker to generate their digital degree.

Further, the University will develop a system to address such type of cases in a time bound manner so that degree certificate can be provided digitally.”

Insofar as Digilocker is concerned, the Court is informed that DU has registered on Digilocker only yesterday i.e., 3-08-2020.

Bench observed that despite the sufficient time being made available to the Delhi University, it is clear that adequate steps have not yet been taken to set up the process for issuance of digital degree certificates.

There is a completely callous attitude being reflected towards the plight of students.

Further, affidavit filed by DU is lacking in several respects – in the name of the portal, the link to the portal, the form to be filled for obtaining the digital degree-certificate and in not providing a sample of the degree certificate to be issued.

Obtaining a degree, which should have been a cause of celebration, has been turned into a complete nightmare for all these doctors who ought to have been busy rendering medical services during the pandemic.

Hence in view of the above, Court constituted a Committee, which shall finalise the following:

a) The online link on the DU portal where the students can put in applications for issuance of their digital degree certificates. Alternatively, an e-mail address shall be provided where the Petitioners and similarly placed candidates can write an e-mail to obtain their degree certificates;

b) The timeline after receipt of the said email for verification and issuance of the degree certificate with the digital signature;

c) Template for the degree certificate to be issued by email;

d) Official to be responsible for affixing the digital signature and issuance of the same;

e) A sample degree certificate in favour of one of the Petitioners, duly signed with the digital signature, shall also be generated;

f) Timelines for transmission of past data to Digilocker from DU;

g) Timelines for transmission of data periodically to Digilocker so that students can easily access their certificates, transcripts, marksheets, awards etc.

Status report to be submitted on 07-08-2020 and matter for hearing is to be listed on the same date. [Dr Akshita Khosla v. University of Delhi, WP (C) 444 of 2020, decided on 04-08-2020]


Also Read:

Del HC | “No reason why DU should not adopt technically advanced methods”; Court suggests DU to issue degree certificates online through email

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., dismissed the petition filed by a Lieutenant Colonel, Indian Army challenging the Social Media Ban Policy of Indian Army.

Lieutenant Colonel with Indian Army filed a petition seeking writ of mandamus directing respondents to withdraw their policy banning petitioner and other members of the Indian Army from using social networking platforms.

The said policy requires the petitioner and other members of the Indian Army to delete their accounts from social networking platforms like Facebook and Instagram.

Petitioner also sought declaration that respondent 2 Director General of Military Intelligence is not empowered under the Constitution of India or under any other law, to modify, amend or abrogate the fundamental rights of the petitioner and other members of the Armed Forces.

Bench on perusal of the policy as well as other voluminous documents, stated that the policy is:

  • an outcome of constantly evolving intelligence of security threats and assessment of security safeguards needed
  • to plug the gaps and meet the ever threatening electronic and cyber infrastructure
  • an outcome of the paradigm shift in the intelligence activities of hostile nations; increased popularity of various social media platforms; the vulnerability of unsuspecting military personnel
  • necessitated by the directives, instructions and policies issued from time to time, advising the military personnel to regulate the use of social media websites, failing to meet the threat
  • virtual impossibility to keep track of lacs of online profiles or to identify the fictitious enemy profiles
  • on assessment of the different modes adopted to honey trap, not necessarily in the conventional sense ;
  • an outcome of the assessment of vulnerability of different social media platforms.

Further, Bench relied on the Supreme Court decision in Ex-Armymen’s Protection Services (P) Ltd. v.  Union of India (2014) 5 SCC 409, wherein it was held that (i) the decision on whether the requirements of national security outweigh the duty of fairness on a particular case is for the government and not for the Courts; the government alone have access to the necessary information and in any event the judicial process is unsuitable for reaching decisions on national security; (ii) those who are responsible for the national security must be the sole judges of what the national security requires and it is undesirable that such matter should be made the subject matter of evidence in a Court of law or otherwise discussed in public; (iii) what is in the interest of national security is not a question of law – it is a matter of policy and it is not for the Court to decide whether something is in interest of State or not; and, (iv) once the State is of the stand that the issue involves national security, the Court shall not disclose the reasons to the affected party.

High Court on perusal of the impugned policy found the same be suffering from the vice of non-application of mind or being not based on any material on record or being without proper deliberations.

Court stated that it does not appreciates the pleading of the petitioner as a senior officer in the Army, of army personnel being treated as slaves and the government not trusting its army.

Court noted that warfare and inter-country rivalries and animosities today are not confined to accession of territory and destruction of installations and infrastructure of enemy countries but also extend to influencing and affecting the economies and political stability of enemy country including by inciting civil unrest and disturbance and influencing the political will of the citizens of the enemy country.

Hence, if the government on complete assessment has concluded that permitting use of certain social networking websites by defence personnel’s enables the enemy countries to gain an edge, Court would be loath to interfere.

In view of the above, petition was dismissed. [Lt. Col. P.K. Choudhary v. UOI, WP (C) No. 4181 of 2020, decided on 05-08-2020]


Brief News 

Delhi High Court dismisses the challenge to the Court’s Order wherein an Indian Army Personnel was directed to delete his social media accounts from “Facebook” and Instagram in consonance of the Social Media Ban Policy for Indian Army.

Earlier, a petition was filed impugning the policy of respondent 2 Director General of Military Intelligence, to the extent it bans the petitioner and other members of Indian Army from using social networking platforms like Facebook and Instagram.

To the said petition, Bench had stated that only after perusing the policy counsels be heard.

“we are of the view that the counsels be heard after we have had an occasion to peruse the policy and if the document prescribing the policy does not record the reasons therefor, the document containing the reasons for the policy.”


Read More:

Del HC | Indian Army’s policy of social media ban for its members to be submitted in a sealed cover for perusal of Court

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., granted bail to an accused involved in the Delhi-Riots in view of the principles of bail.

Applicant accused for offences under Sections 147, 148, 149, 427 and 436 of the Penal Code, 1860. Applicant has been in judicial custody since 03-04-2020 till date.

By the present application, bail has been sought.

An FIR was registered in February, wherein according to the police, a mob engaged in rioting and destruction of property in certain areas of North-East Delhi during which the property of Mohd. Shanawaz  was burnt down, whereupon he file a complaint around 10 days after the incident.

State alleged that the applicant was one of the persons involved in arson and rioting as stated above and the same is the reason for him being in judicial custody.

4 more cases have been listed wherein the applicant was implicated and all the cases arose from the episodes of rioting that happened in North-East Delhi in February 2020.

While opposing the bail, Amit Prasad, SPP and Tarang Srivastava, APP submitted that the applicant’s identity and presence stands confirmed by the snapshot/video-graphs of the CCTV footage from Rajdhani Public School as well as from the applicant’s own cellphone.

Applicant’s CDRs also confirmed his location at the scene of the crime at the relevant time; that the complainant’s statements also point to the involvement of the applicant; and that in his statement Ct. Vikas has in fact identified the applicant.

“Court considered the effect of Pre-trial detention has on an accused, especially on his right to brief and consult his lawyers and to prepare his defence, in order to afford to the accused a real and not merely chimerical right to fair trial, as guaranteed under Article 21 of the Constitution.”

Hence, in view of the above and applying the law and principles of bail granted regular bail subject to the following conditions:

  • Personal Bond shall be furnished of Rs 50,000 with two sureties.
  • Applicant shall not leave the National Capital Region without Court’s permission.
  • Applicant shall present himself on every alternate Saturday between 11 am and 11:30 am before the Investigating Officer.
  • Applicant shall furnish to the Investigating Officer/SHO a cellphone number on which the applicant may be contacted at any time.
  • If the applicant has a passport, he shall surrender the same to the Trial Court.
  • Applicant shall not contact, nor visit, nor offer any inducement, threat or promise to the first informant/complainant or to any of the prosecution witnesses.

In view of the above, application was disposed of. [Mohd. Anwar v. State of (NCT) Delhi, 2020 SCC OnLine Del 900, decided on 04-08-2020]

Cyril Amarchand MangaldasExperts Corner

Introduction

In a largely capitalistic economy, advertisements are one of the most important sources of creating awareness about various products. We may have shifted our reliance from advertisements in print media and televisions to advertisements on social media, however, advertisements continue to remain the largest creator of demand among consumers. Companies continue to employ the most innovative techniques to woo their customers and boost sales. While attempting to do so, corporates often tend to promote their brand as being superior to their competitor’s.

Over the course of this article, we examine the recent decision of the Delhi High Court (“the High Court”) in Horlicks Limited  v. Zydus Wellness Products Limited[1]  (“Horlicks case”), where the High Court has dealt with the law relating to misleading advertisements and disparagement.

Article 19 and Commercial Speech

Article 19(1)(a) of the Constitution guarantees the right to freedom of speech and expression to all citizens of India, and the essential corollary to the same is the right to be informed and access to information. In  Romesh Thappar v. State of Madras[2], the Supreme Court held that Article 19(1)(a) includes the freedom of press, however, it was in Indian Express Newspaper v. Union of India[3] that the  Supreme Court  held that commercial speech is protected under the ambit of free speech and expression under Article 19 and  the Supreme Court  observed that “We are of the view that all commercial advertisements cannot be denied the protection of Article 19(1)(a) of the Constitution merely because they are issued by businessmen and its true character is detected by the object for the promotion of which it is employed.”

The above position was elaborated upon in Tata Press Ltd v. Mahanagar Telephone Nigam Ltd.[4]  (“Tata Press”), wherein the Supreme Court observed the right of the consumer as a recipient of commercial speech by stating, “An advertisement giving information regarding a life-saving drug may be of much more importance to the general public than to the advertiser who may be having purely a trade consideration. Article 19(1)(a) not only guarantees freedom of speech and expression, it also protects the rights of individuals to listen, read and receive the said speech.” Further, the  Supreme Court  also held that misleading and deceptive advertising would not fall within the protection of Article 19.

The law relating to misleading advertisement

 As evident from the name, a misleading advertisement is one that deceives, manipulates or is likely to deceive or manipulate the consumer. These advertisements have the ability to cause serious damage to the consumers, as well as competitors and hence are required to be restrained. The courts, while deciding various cases, have tried to strike a balance between protecting the right to commercial speech and the interest of consumers and competitors.

In the recent Horlicks case[5], the High Court passed an interim order restraining Zydus from telecasting its advertisement comparing Complan to Horlicks on the grounds that the same was misleading and disparaging.

 Horlicks Limited  v. Zydus Wellness Products Limited

Horlicks Limited (“Horlicks”) approached the Delhi High Court, seeking a permanent injunction restraining Zydus Wellness Products (“Zydus”) from telecasting its advertisement, which showed that one glass of Complan (a Zydus Product) is equivalent to two glasses of Horlicks. The advertisement in contention was being telecast on multiple channels in English, Bengali and Tamil. Aggrieved by the advertisement, Horlicks approached the High Court on the ground that the advertisement was misleading and amounted to disparagement.

Zydus, on the other hand contended that the advertisement was not misleading as the information provided was accurate and was subject to the recommended serving size of both the drinks. A suit on similar grounds was filed by Horlicks for an advertisement published by Zydus in print media. The High Court had granted an interim injunction, restraining Zydus from publishing the advertisement, however, the injunction was vacated, when Zydus, voluntarily modified the advertisement, by including the disclaimer about the serving size and undertook to only publish the modified advertisement.

While arriving at a decision on the interim relief, the High Court analysed and relied upon the plethora of judgments on misleading advertisements, disparagement and law governing publication of advertisements on television, including:

(i) Reckitt & Colman of India Ltd. v. M.P. Ramchandran[6], wherein the Calcutta High Court held that a seller is allowed to declare that his goods are the best or better than that of his competitor’s, despite the said declaration being false. While making such declaration, he may also compare the advantages and disadvantages of his products and that of the competitors; however, the seller is not permitted to defame the goods of his competitors and if there is no defamation, the competitor will have no cause of action to file a case of misleading advertisement and disparagement.

(ii) Dabur India v. Colortek Meghalaya Pvt. Ltd. [7] (“Dabur India”), wherein the Delhi High Court laid down the following guiding principles while dealing with the issue of misleading advertisements:

  • Advertisements are protected under Article 19(1)(a) as commercial speech;
  • An advertisement must not be false, misleading or deceptive;
  • However, there are certain cases where the advertisement must not be taken as false, but as a glorious representation of one’s own product; and
  • Only when the impugned advertisement goes beyond glorifying its product, and is deceptive and misleading, the protection under Article 19(1)(a) would not be available.

The High Court while dealing with the principles on law of disparagement laid down in Pepsi Co. Inc. v. Hindustan Coca Cola Ltd. [8], held that:

(1) The intent of the advertisement – this can be understood from its story line and the message sought to be conveyed. (2) The overall effect of the advertisement – does it promote the advertiser’s product or does it disparage or denigrate a rival product? In this context, it must be kept in mind that while promoting its product, the advertiser may, while comparing it with a rival or a competing product, make an unfavourable comparison, but that might not necessarily affect the story line and message of the advertised product or have that as its overall effect. (3) The manner of advertising – is the comparison by and large truthful or does it falsely denigrate or disparage a rival product? While truthful disparagement is permissible, untruthful disparagement is not permissible.”

(iii) In Havells India Ltd. v. Amritanshu Khaitan[9] the Delhi High Court clarified the difference between comparative advertising and misleading advertising and disparagement. It observed that comparative advertising is healthy and encouraged in the spirit of competition, however, disparagement is not; and a cause of action shall arise in case of a misleading advertisement.

(iv) In Gillette India Limited v. Reckitt Benckiser (India) Private Limited[10], the Madras High Court noted the difference between electronic media and print media, while deciding cases of disparagement. In doing so, it observed that electronic media has greater power to leave a lasting impression in the minds of the viewers as compared to print media and held that, “catchy phrase, a well enacted skit or story line, or even distinctive sounds or distinctive collocation of colours make a lasting impact and more so, when viewed repeatedly.

The High Court while relying on the abovementioned cases held that the impugned advertisement was misleading and disparaging, even though the disclaimer was provided in the advertisement, the same was not clear and the advertisement created an impression that one cup of Complan was equal to two cups of Horlicks, without considering the serve size. The High Court, based on the above observation, held that the balance of convenience was in favour of Horlicks, who would suffer an irreparable injury if telecast of the impugned advertisement was not restrained and hence, granted the relief of interim injunction.

Conclusion

The law on misleading advertisement is ever evolving and the HC judgement in  Horlicks case[11] is an addition to the long list of judgements on misleading advertisement. It is interesting to note that the High Court allowed the circulation of the same advertisement in print media, however, restrained the telecast of the same. We understand that the differentiation between print media and electronic media lies in their impact on the audience. Since electronic media uses a combination of audio-visual techniques, it is more likely to influence its audiences and hence requires stricter regulations. Hence, the same advertisement was allowed to be published in print media, however, restrained from being telecast on television.

Additionally, an analysis of the case laws referred above shows that the law relating to misleading advertisements is extremely subjective and a small alteration in the fact may affect the outcome. It appears that while it is not disparaging and misleading for a seller to compare his products with his competitor’s and even claim that his product is better than those of his competitor’s, it may be disparaging and misleading if the competitor’s goods are shown to be inferior to the seller’s.


*Partner, Cyril Amarchand Mangaldas, Advocates & Solicitors

**Associate, Cyril Amarchand Mangaldas, Advocates & Solicitors

***Associate, Cyril Amarchand Mangaldas, Advocates & Solicitors

[1] Horlicks Limited  v. Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020.

[2] Romesh Thappar v.  State of Madras, 1950 SCR 594

[3] Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India,  (1985) 1 SCC 641

[4] Tata Press Ltd v. Mahanagar Telephone Nigam Ltd, (1995) 5 SCC 139.

[5] Horlicks Limited v Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020

[6] Reckitt & Colman of India Ltd. v. M.P. Ramchandran , 1998 SCC OnLine Cal 422

[7] Dabur India v. Colortek Meghalaya Pvt. Ltd. , 2010 SCC OnLine Del 391

[8] Pepsi Co. Inc.  v. Hindustan Coca Cola Ltd. , 2003 SCC OnLine Del 802 the Court laid the following principles:

  • Intent of the advertisement;
  • Manner; and
  • Story line and the message sought to be conveyed.

[9] Havells India Ltd. v. Amritanshu Khaitan , 2015 SCC OnLine Del 8115

[10] Gillette India Limited v. Reckitt Benckiser (India) Private Limited, 2017 SCC Online Bom 207

[11] Horlicks Limited  v. Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020

Case BriefsHigh Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., directed that the statements under Section 164 of the Code of criminal Procedure, 1973 of children in need of care and protection should be recorded by the Metropolitan Magistrate over video conferencing or by visiting the observation homes.

Petitioner has established a Child Care Institution under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Reason for filing the present petition was that, out of a rescue operation in July, 2020 ten minors who were working as child labour were rescued and brought to the Mukti Ashram.

Contention of the petitioner is that the children were compelled to leave Mukti Ashram and physically attend the Court of the Metropolitan Magistrate for recording of their statements under Section 164 of the Code of Criminal Procedure, 1973 and for giving samples for COVID-19 testing.

Respondents should lay down procedures for recording of the childrens’ statements and their medical testing, which does not require them to leave the institution or at atleast to attend at crowded public places.

Bench stated that in the interest of the children who require care and protection it should be necessitated that their exposure t crowded environments be avoided in the prevailing circumstances of the COVID-19 pandemic. As far as possible, they shouldn’t be required to leave the premises of the Child Care Institution in which they are housed.

Court directed as follows:

  • Statements under Section 164 of the Code of Criminal Procedure, 1973 of children in need of care and protection can be recorded by the Metropolitan Magistrate over video conferencing or if the Metropolitan Magistrate deems it necessary, he/ she can visit the concerned observation homes/Child Care Institutions where such children are housed, for recording the statement in person.
  • Proceedings before the Child Welfare Committees and other bodies where the children are required to participate, are already being conducted by video-conference. We direct that this process should be continued, and the requirement of taking the child out of the home/ Child Care Institution should be avoided as far as possible.
  • Covid-19 tests will also be carried out by the State authorities for the children in need of care and protection who are staying at different homes/Child Care Institutions under the Juvenile Justice (Care and Protection of Children) Act, 2015. The sample shall be collected for this purpose either at the home/Child Care Institution or at the office of the Sub-Divisional Magistrate of the area. The authorities will ensure that all precautions for the welfare of the child are taken, and that the sample is expeditiously collected, so that the child can return to the home/ institution.

In view of the above observations, petition was dismissed. [Bachpan Bachao Andolan v. GNCTD, WP(C) No. 4361 of 2020, decided on 28-07-2020]

COVID 19Hot Off The PressNews

Suspension of functioning of Delhi High Court and its Subordinate Courts has been extended till 31-07-2020.

Here’s the Court Order:

The Hon’ble Administrative and General Supervision Committee of this Court while considering further extension of suspended functioning of this Court and in view of the prevailing situation of spread of coronavirus (2019-nCOV) pandemic in the NCT of Delhi, in continuation of this Court’s Office orders No.373/Estt./E1/DHC dated 23.03.2020, No.194/RG/DHC/2020 dated 25.03.2020, No.R-43/RG/DHC/2020 dated 15.04.2020, No.R125/RG/DHC/2020 dated 02.05.2020, No.R-201/RG/DHC/2020 dated 16.05.2020, No. R271/RG/DHC/2020 dated 21.05.2020, No.1381/DHC/2020 dated 29.05.2020, No.15/DHC/2020 dated 13.06.2020 and No.21/DHC/2020 dated 29.06.2020 has been pleased to order that the suspended functioning of the High Court of Delhi shall stand extended till 31.07.2020 on the same terms as contained in the Order dated 13.06.2020 of this Court.

NOTICE

NOTICE


Delhi High Court

Notice dt. 14-07-2020

COVID 19Hot Off The PressNews

Rapid Antigen Diagnostic Test for Covid-19 to be conducted in High Court of Delhi

A medical team deputed by the Health Department of the Govt of N.C.T. of Delhi shall conduct Rapid Antigen Diagnostic Test for Covid 2019 in High Court of Delhi. A camp is accordingly being organized for three days i.e. 10th, 13th and 14th July, 2020 from 10.00 am to 02.00 pm. ‘.

All the officers and officials of this Court, who are desirous to undergo the said test, are  requested to send information in advance on Whatsapp to the Mr.Pawan Kumar Kalra, Joint Registrar, General Administration-II (Mob No. 9910390927) for making appropriate arrangements to regulate the rush.

All such willing officers/officials are requested to report, as per the given time-slot and date, in the main public entry area of the Extension Block of this Court. They shall also bring their respective Identity Cards.

CIRCULAR


Delhi High Court

[Circular dt. 09-07-2020]

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., while addressing a bail application directed the Jail Superintendent to provide the necessary gadgets for the prisoner to attend B.A. Main Examination which will be conducted online.

Present petition was filed with the purpose to grant interim bail for a period of 45 days on account of petitioners examination for B.A programme to be held on 10th July, 2020.

Mock test series for the stated examination had already begun from 4th July, 2020 and was to be continued till 8th July, 2020. Petitioner wished to attend the remaining mock tests for practice.

It was noted that vide an order dated 22nd May, 2019 petitioner had prayed for an interim bail on the same ground as has been placed in the present petition and he was allowed to take exam while in custody.

High Court in the present petition has directed the Jail Superintendent to provide the petitioner with necessary gadgets and an instructor to operate the computer, if require, so that the petitioner can appear in the said main examination as well as mock test series which will be conducted online.

In view of the above, petition was disposed of. [Ranjeet Singh v. State of Delhi (NCT), Bail Appln. No. 1553 of 2020, decided on 06-07-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: A Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., disposed of the petition wherein cooks working in Air Force Kitchens are being made to work for 14 days then 14 days quarantine, then for 7 days they can go to their respective residences — their grievance is that they are being forced to stay away from their homes for 28 days.

Grievance of All India Association of Air Force Civil Cooks

Petitioner-association is being made to live at the Station of their posting and a roster of 14+ 14+ 7 is being followed wherein for the first 14 days they are kept in quarantine, for the next 14 days they are made to work as cooks and thereafter they are given 7 days at home.

The contention placed before the Court is that they are being forced to stay away from their homes for 28 days in a month and out of which for 14 days their services are not utilised, by keeping them quarantined.

In view of the above stated contention, petitioner stated that it is not in terms of their employment that they will be made to stay away from their respective families.

Grievance is also made that they are not being treated as ‘Corona Warriors’ and being thus not conferred benefits to which ‘Corona Warriors’ are entitled.

Decision

Petition has been filed without regard to the prevalent circumstances and the large scale loss of employment and resultant hardships being faced by those without assurance of employment.

Members of the petitioner though having surety of employment are making grievances of inconveniences allegedly being suffered by them, forgetting that the members of the petitioner , as cooks is permitted to return to their respective residences after duty hours every day, are likely to bring them COVID-19 infection, when reporting back for duty.

They cannot thus seek enforcement of employment terms as in normal times, when the entire country is going through abnormal times.

Further the Court added that, while working in the kitchen at the Air Force Stations, the members of the petitioner cannot be said to be exposed in any manner to the Corona virus, to claim themselves to be “frontline workers” as the counsel for the petitioner argues.

Court also enquired from the respondents counsel appearing — why the members of the petitioners cannot be made to reside at the respective Air Force Stations for a longer period than of 14+14 days, say for three or six months at a time, as per the requirement, so that the time spent in quarantine by the members of the petitioner at the Air Force Stations is brought down.

With regard to petitioners grievance in respect to meals being charged. Court has asked the respondents counsel, whether a better arrangement therefor can be worked out or charges for meals be dispensed.

Thus, Court on finding no merit in the present matter and disposed it of while requesting the respondents to either centrally or regionally or at each Station, hold consultations with the representatives of the members of the petitioner and to explore if any other arrangement, satisfactory to the members of the petitioner, can be worked out. [All India Air Force Civilian Cooks Assn. v. UOI, 2020 SCC OnLine Del 663 , decided on 22-06-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: C. Hari Shankar, J., granted an ad-interim injunction and restrained police from making any investigation against Ganga Ram Hospital in an FIR filed against the hospital by the Delhi Government.

Ganga Ram Hospital — Petitioner sought interim stay of all proceedings consequent to FIR alleging commission of offence under Section 188 of Penal Code, 1860.

Background

Petitioner submitted that a reading of guidelines issued on 18th May, 2020 by ICMR revealed that it was only by the said guidelines that a specific requirement was incorporate, to the effect that all testing of COVID-19 suspected cases, whether symptomatic or asymptomatic were to be conducted by “real -time RT-PCR test only”.

On April, 20th, 2020, GNCTD issued an Order wherein following was informed:

GNCTD had created a COVID App, in which all Government/private COVID testing labs and COVID hospitals were required to fill the requisite data, to ensure proper follow-up of COVID-19 cases.

The Order required all concerned government/private hospitals to get the requisite data filled on the COVID App immediately on regular basis to supplement efforts for checking the spread of COVID-19, and also directed all government/private labs to update the COVID App on regular and immediate basis, after submission of each and every sample for testing.

On April, 30th, 2020, an Order was issued by GNCTD, wherein concern was expressed with regard to the pendency of test samples sent by districts in hospitals to various labs for COVID-19 testing, multiplicity in reports, resulting in difficulties and reconciliation of data and assessment of the number of people getting infected with COVID-19 virus.

Fulcrum of Controversy

RT-PCR App is the fulcrum of controversy in the present matter. This app was aimed at streamlining data flow of tested persons, reducing data entry at labs, speeding up declaration of results and enabling data flow of suspected cases into the system for further action at the district level.

Specimen Referral Form and the above-stated app are similar except for the fact that the app is an electronic version of the said form.

Standing Counsel, Rahul Mehra was also unable to pick out the difference between the RT-PCR app and Specimen Referral Form.

Further on 7th May, 2020 it was issued by Nursing Home Cell of the Directorate General of Health Services, GNCTD (DGHS) that no manual Sample Requisition Form will be accepted and private lab concerned would receive samples only after conforming that the details had been entered on the RT-PCR App.

Show Cause Notice to Ganga Ram Hospital

Petitioner was issued — with following of the ICMR testing protocol for testing of asymptomatic patients.

On 3rd June, 2020, an Order was issued by the DGHS observing that, in apparent disobedience of the office order dated 6th May, 2020, proscribing use of manual/physical SRFs at sample collection centres with effect from 8th May, 2020 and usage, instead of the RT-PCR App, petitioner was still not using the said App.

Petitioner was directed to explain, within two days, why it had not started using the RT-PCR App. The petitioner was also directed to stop RT-PCR sampling of COVID-19 suspects/contact cases, with immediate effect.

Petitioner informed the Court that it had identified a Data Entry Operator, for registration of the RT-PCR App as well as nine phlebotomists, whose details were annexed. Once the Data Entry Operator was registered, the petitioner undertook to enter all past entries in the RT-PCR App and to ensure compliance, with the said requirement, in future.

On 5th June, 2020 an FIR was registered against the petitioner from the office of the Deputy Secretary, health, GNCTD, alleging commission of offence under Section 188 IPC (Disobedience to order duly promulgated by public servant).

Why has the present petition been filed?

By the present petition, petitioner prays for quashing of the above-stated FIR, issuance of an appropriate write, Quashing of the Order wherein the petitioner has been prohibited from conducting RT-PCR sampling for COVID-19 suspects/contact cases, has become infructuous, as the said order has been withdrawn and the petitioner has been permitted to conduct sampling.

R. Suri and Sidharth Luthra, Senior Counsel for the petitioner and Rahul mehra, Senior Standing Counsel (Criminal) for GNCTD/State.

Decision 

Bench stated that the only allegation in the impugned FIR was clearly in violation by the petitioner with regard to the orders requiring collection of samples for COVID-19 testing, to be done only through RT-PCR App.

Further the Court stated that, there is no reference in the FIR, to this infraction, on the part of the petitioner,  in collecting samples through the RT-PCR app, having caused or obstruction, annoyance or injury, or risk of obstruction, annoyance, or injury, to any person lawfully employed, or having caused, or attempted to cause, danger to human life, health or safety, or riot or affray.

Disobedience of an order, promulgated by a public servant, is, clearly, by itself not an offence under Section 188 of the IPC.

Consequently, it has to be held that the allegations in the FIR do not disclose the commission of a cognizable offence.

An FIR need not be an encyclopaedia or contain, within it, all minute factual details, regarding the incident, which is alleged to amount to an offence. Even so, the facts, stated in the FIR, and the allegations contained therein, must disclose the commission of a cognizable offence. Else, the very registration of the FIR would be unjustified.

In Court’s opinion, the impugned FIR did not allege any impediment to human health, or loss to human life, having resulted as a consequence of the default, on the part of the petitioner, in complying with the requirement of using the RT-PCR App.

Court is aware of the fact that Regulation 18 of the 2020 COVID Regulations contains a warning, to the effect that any person/institution/organization found violating any provision of the said Regulations would be deemed to have committed an offence punishable under Section 188 of the IPC.

In the present case, violation, by the petitioner is alleged, not directly of the 2020 COVID Regulations, but of governmental Office Orders, issued thereunder.

“…criminal process cannot be initiated, against an institution, merely on the ground that such violation has taken place, sans any allegation that it has led to one of the consequences statutorily engrafted in Section 188 of the IPC.”

Thus, in view of the above terms, an ad-interim injunction, restraining the Police from investigating, consequent in the impugned FIR seems to be justified.

Petitioner-hospital is a frontliner in the war against COVID-19 pandemic.

Balance of convenience would also be in favour of interdicting, for the present, any investigation, consequent to the impugned FIR. As and when the present petition is finally decided, if it is found that no case, for quashing the impugned FIR, or the investigation following thereupon, is made out, the Police could always resume its investigation.

Hence, the stay application was allowed. [Ganga Ram Hospital v. State, 2020 SCC OnLine Del 662 , decided on 22-06-2020]

Hot Off The PressNews

The High Court of Delhi Rules for Video Conferencing for Courts 2020 permit public viewing of court proceedings. The relevant Rule is extracted hereinafter: –

“16.1 In order to observe the requirement of an open Court proceeding, members of the public will be allowed to view Court hearings conducted through video conferencing, except proceedings ordered for reasons recorded in writing to be conducted in-camera. The Court shall endeavour to make available sufficient links (consistent with available bandwidth) for accessing the proceedings.”

Thus, links will be offered for public viewing so long as the stability of the system is not disturbed i.e. is consistent with the available bandwidth. Therefore, all those who are interested in obtaining links for viewing court hearings can contact the concerned Court Master/court official on their mobile phone numbers published in the cause list, in the very least, by 9 p.m. on the day prior to the date of hearing.

However, if for any reason contact with the concerned Court Master/court official is not made by 9 p.m. on the date prior to the date of hearing fixed in the matter, then, the person seeking a link should get in touch with the Court Master/court official by 10 a.m. on the day of the hearing.

No request though, will be entertained once the hearing has commenced except with the permission of the court.

Those who are given a link for viewing the court proceedings will ensure that their mic is kept on mute mode and the video on switch-off mode.

CIRCULAR


Delhi High Court

Circular dt. 20-06-2020

Hot Off The PressNews

Online e-Filing System of Delhi High Court shall be e-inaugurated at 5 PM today by Justice D.N. Patel, Chief Justice, Delhi High Court in the august presence of Companion Judges of Delhi High Court and other distinguished guests.

This facility will enable the Advocates/litigants-in-person to file fresh cases/caveat as well as applications/reply/rejoinder/documents/vakalatnama etc. in the pending cases from their chamber/office/residence or any other place at any time, without the necessity of personally visiting the Filing Counters/Designated Counters.

 

CIRCULAR


Delhi High Court

Public Notice dt. 11-06-2020

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., while addressing a bail application of a person alleged to have been involved in burning the shop during the Delhi Riots, stated that:

“..ordinarily this court would not have entered upon any discussion on the evidence at the stage of considering bail, however here is a case where a purported unlawful assembly of some 250-300 persons is alleged to have committed offences; of which the police have picked-up only two.”

What transpired the bail application?

Present bail application has been filed by a person who has been taken into custody under Sections 147, 148, 149, 427 and 436 of Penal Code, 1860, though he sought bail on the grounds that neither has he been named in the FIR nor is there any allegation in the FIR nor any other material collected during investigation which would have identified him as one of the perpetrators in the offences alleged.

Supplementary Statement of Complainant

The first statement of the complainant has not been filed on record. Though APP submitted that the same has been extracted in-extenso in the FIR itself.

Senior Counsel, Rebecca John — for the applicant

Submissions:

  • Complainant’s supplementary statement on which the State sought to rely did not in any manner identify or connect the applicant to the alleged offences.
  • No test identification parade was conducted of the applicant to get the complainant to identify him
  • Applicant is a resides 15-minutes away from the complainant’s shop; and therefore the applicant’s presence in the vicinity of the shop cannot be assumed, unless there is evidence to that effect, which there isn’t.

Another point that is to be taken note of is that the co-accused with the applicant has already been admitted to bail by Additional Sessions Judge.

APP, Hirein Sharma for the State — Opposing Bail

While opposing the bail he submitted that applicant had been identified by complainant; Constable Vikas and the CCTV footage of Rajdhani School also identifies the applicant — these hold a sufficient basis to hold him in judicial custody. Overall there were around 250 to 300 rioters in the area at the relevant time.

Complainant’s supplementary statement

Complainant only submitted that in the video and photos shown to him in the police officer’s cellphone, he had identified 2 persons who set fire to his shop and, if confronted, he will be able to identify other persons who were present.

According to the State’s status report dated 23rd may, 2020, no footage of the incident is available and the cameras installed by PWD in various parts of the area are still awaited.

Ct. Vikas in his statement submitted two names including the applicant’s name.

It is extremely important to note however, that in the complainant’s statement upon which the FIR was recorded, the complainant says that when the rioters vandalised his shop, he tele- phoned the police but the police telephones were going busy ; and that therefore he ran away to save his life. In the teeth of this statement of the complainant that there was no police help on hand, Ct. Vikas claims that he was present at the scene of the offence and in- ter-alia saw the applicant commit the offences.

Now another point with regard to CCTV footage that is to be noted is that the Rajdhani School and applicant’s shop are at a 400 meters distance with a 5 minute walk but on 2 different sides of a turn in the road. Therefore, it appears incredible that camera/s installed in the school would be able to ‘see’ the complainant’s shop.

Additional Status report of the State says that:

“…. Granting of bail at this early stage may send an ad- verse message in the society and such crimes should not be allowed to happen in the national capital. ….”.

(Emphasis supplied)

Decision of the Bench

“Prison is primarily for punishing convicts; not fo detaining undertrials in order to send any ‘message’ to society.”

Further the Court observed that remit of the Court is to dispense justice in accordance with law, not to send messages to society.

It is this sentiment, whereby the State demands that undertrials be kept in prison inordinately without any purpose, that leads to overcrowding of jails ; and leaves undertrials with the inevitable impression that they are being punished even before trial and therefore being treated unfairly by the system.

In regard to the present matter, Court cannot but notice that the offences under Sections 147/148/149 IPC arise in the context of an ‘unlawful assembly’, which Section 141 IPC defines as an assembly of 5 or more persons acting with unlawful purposes as defined in that provision ; while in the present case only 2 persons appear to have been charged.

On perusal of the above, Court admits the applicant to regular bail on following conditions:

  • Rs 50,000 Personal Bond; 2 sureties of the like amount from blood-relatives
  • Cannot leave NCR without Court’s permission
  • Shall present himself on every alternate Wednesday between 11 am and 11.30 am before the investigation officer.
  • Passport to be surrendered
  • applicant shall not contact nor visit nor threaten nor offer any inducement to the first informant/complainant or any of the prosecution witnesses. The applicant shall not tamper with evidence.

Court added to its observation that,

In this peculiar circumstance, this court was compelled to sift the evidence only prima-facie and limited to cursorily assessing how the police have identified the applicant from that large assembly of persons.

In view of the above discussion, bail application is allowed. [Firoz Khan v. State (NCT of Delhi), Bail Application No. 945 of 2020, decided on 29-05-2020]

COVID 19Hot Off The PressNews

Functioning of the High Court of Delhi and its Subordinate Courts shall remain suspended till 14-06-2020.

It has further been ordered that as per earlier directions, all the Benches of the High Court shall take up urgent matters through videoconferencing as per Roster notified on 20.05.2020 and the notes contained therein.

Matters listed in the subordinate courts from 01.06.2020 to 12.06.2’020 be adjourned en bloc and information in this regard be uploaded on District Court website.

To read the detailed notice’s, please follow the link below:

Public Notice 1

Public Notice 2


Delhi High Court

Notice dt. 29-05-2020

COVID 19Hot Off The PressNews

In order to further contain the spread of COVID-19, Delhi High Court notified that till further orders, while appearing before this High Court or its Subordinate Courts, through videoconferencing or otherwise, the Advocates are exempted from wearing gowns, coats, Sherwanis, Achkans, Chapkans and Jackets.

However, they shall be dressed in a sober and dignified manner and expected to adhere to the rest of the Dress Code, as prescribed in Part VI, Chapter IV of the Bar Council of India Rules (Rules framed under Section 49(1) (gg) of the Advocates Act, 1961).

The above directions shall come into force with immediate effect.


Delhi High Court

[Circular dt. 25-05-2020]

Appointments & TransfersNews

Justice Sangita Dhingra Sehgal has tendered her resignation from the office of Judge, Delhi High Court, in pursuance of proviso (a) to clause (1) of Article 217 of the Constitution, with effect from 30th May, 2020.

Heres’ the Notification: NOTIFICATION


Ministry of Law and Justice

Notification dt. 21-05-2020

COVID 19Hot Off The PressNews

Aarogya Setu, a mobile application, has been developed by the Government of India to connect the people of India with essential health services to collectively fight against pandemic (Covid-19) outbreak.

The mobile application is aimed at augmenting the initiatives of the Government of India, particularly the Department of Health, in proactively reaching out to and informing the users of the application regarding risks, best practices and relevant advisories pertaining to the containment of COVID-19. It also helps significantly in contact-tracing and curbing the spread of Covid-19.

Considering the benefits and advantage of Aarogya Setu mobile application, all the officers/officials of this Court are requested to download, install and use the same.


Delhi High Court

[Office Order dt. 13-04-2020]

COVID 19Hot Off The PressNews

Pursuant to Order No.40-3/2020-DM-1(A) dated 14.04.2020 issued by the Government of India regarding continuance of lockdown upto 03.05.2020 and in continuation of this Court’s Office orders No.373/Estt./E1/DHC dated 23.03.2020 and No.194/RG/DHC/2020 dated 25.03.2020, Hon’ble the Administrative and General Supervision Committee of this Court has been pleased to order that the functioning of the High Court of Delhi shall continue to remain suspended till 03.05.2020 on same terms.

The arrangements qua mentioning and hearing of urgent matters by this Court through videoconferencing shall continue as before. However, the number of Benches, hearing matters through videoconferencing, would be increased further.

To read the detailed Orders , follow the link below:


Delhi High Court

[Office Order dt. 15-04-2020]

COVID 19Hot Off The PressNews

In a unanimous decision by a Full Bench presided over by the Chief Justice, the Delhi High Court had resolved that the High Court as well as all the subordinate courts will remain open in the month of June 2020.

The decision to suspend the summer break was taken in light of the inconvenience caused to the litigants due to the restrictive functioning of the Court amid COVID-19 lockdown. The Court has been hearing only hearing urgent matters amid outbreak of COVID-19 pandemic.  To make up for the loss of court working hours due to COVID-19 lockdown, the Full Court passed the resolution, the relevant portion of which reads:

“Since during the period of suspension of work, the hearing is limited to the matters of extremely urgent nature or urgent nature, there is negligible fresh filing of cases, lesser disposal and corresponding escalation in arrears, resulting in extreme hardship to litigants.

In view of the severe hardship faced by the litigants due to the prevailing pandemic of COVID-19 that has impaired the functioning of the courts, it has been unanimously resolved by the Full Court that to make up for the loss of court working hours and to ensure restoration of normalcy in the functioning of the courts at the earliest, in modification of the resolution of the Full Court dated 16.09.2019, declaring the period of the Summer vacations for this Court and the Courts subordinate thereto in the month of June 2020, this Court and courts subordinate thereto shall continue functioning during the entire month of June i.e. from 01.06.2020 to 30.06.2020. It is hoped and expected that members of the Bar shall extend their full cooperation in making the functioning of the courts meaningful and purposeful during the month of June 2020.”