Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In an application seeking the appointment of the applicant as a fit and proper person to be guardian of the minor children and for grant of sole and permanent custody of the minor children, Krishnan Ramasamy, J. has directed the father/respondent to hand over interim custody of the children to the mother/applicant, till the disposal of the main original petition.

In this case, the applicant and respondent got married in the year 2009 and have 2 children. Thereafter, matrimonial disputes arose between the parties, and the wife was subjected to harassment and was thrown out of the matrimonial home in 2021 by the respondent, while he retained the custody of the children. Thereafter, the applicant filed various petitions and applications, seeking dissolution of marriage, custody of minor children and visitation rights etc.

The Court noted that this Court by various orders has granted the visitation rights to the applicant to ensure that the well-being of the children be unaffected by the estranged and strained relationship of the parents, however, the respondent has failed to comply with the said orders. Further, the respondent has even indulged in parental alienation and tutored the children to act and behave contrary to the wishes of the applicant and according to the respondent. He has even updated the children about the Court proceedings, which prompted the elder son to act against the mother and to resist to stay with her, and to demand from her to withdraw the case filed against his father.

The Court observed that without parental alienation, this could not be possible for a tender aged child to insist and demand his mother to withdraw the case and impose the condition that unless she withdraws the case, he would not come to his mother.

The Court further observed that the respondent is throwing the blame on the children stating that the children themselves are not interested in going and staying with the mother and that he cannot force them, and it is beyond his hands; also, in the Court orders there is no specific role mentioned directing the respondent to act in the matter of convincing and handing over the children to the applicant. This clearly proves the aspect of parental alienation on the part of the respondent. Further, his inability to advise and persuade the children, further evidents his inability and incapability to maintain and keep the custody of the children anymore.

Moreover, the Court viewed that “to turn a child against a parent is to turn a child against himself. Parental alienation is inhuman, and it is a menace to a child, who directly needs two hands to hold, both the mother and father till he/she walks throughout the life or at least till he/she attains majority” Further, it was observed that hatred is not an emotion that comes naturally to a child against his/her mother/father unless it is taught by the person whom the child believes. A parent indulging in parental alienation means he/she is polluting the tender mind of the innocent child by portraying the mother/father as a villain, which would have a considerable impact on him/her throughout his/her life.

The Court observed that “the welfare of the child is of paramount consideration but being with the parent who is not ready to teach and persuade his children to love their own mother, cannot be accepted. Further, it is not fair on the part of the respondent in not accommodating the children to spend time with their mother despite the Court orders.

Moreover, the Court observed that “children have a fundamental right and need for an unearthened and loving relationship with their parents and denying the said right would amount to child abuse” and the respondent, without justification, has been indulging in such child abuse. It was observed that when there is healthy co-parenting, the children will lead a happier childhood instead of becoming an emotionally broken adult who will in turn become non-understanding and unsympathetic citizens.

The Court further viewed that the welfare of a child is not to be measured only by money and physical comfort, as it includes material welfare; however, they are secondary matters, the primary considerations of matters are the stability and the security, the loving and understanding, care and guidance, warm and compassionate relationships that are essential for the full development of the child’s own character, personality and talents.

Further, the Court observed that it appears prima facie that the respondent poisons the minors’ minds against the mother and acted against the welfare of the minors and for the healthy growth of the children, their custody was discontinued with the respondent as there is very high probability that if the children continue to stay with him, they will be influenced to such an extent that they will never want to return to their mother, it will cause mental and physical disorders including psychological pain, anger and depression, which would certainly cause harm to the welfare of the child.

The Court also observed that it is incumbent upon a parent, having the custody of the children, to encourage co-parenting despite having personal hatred towards the spouse and allow the children to move freely with their parent, as the quality of the relationship between the co-parents have a strong influence on the mental and emotional well-being of the children.

Moreover, the Court observed that “the concept of marriage is not for mere satisfying carnal pleasure, but it is mainly for the purpose of Pro generation, which leads to the extension of the families of the two individuals, who have been united over a sacred oath, taken by both”. Further, it was observed that the law can satisfy the ego, but it can never satisfy the requirements of the child, as the framers of the law were only conscious of the welfare of the child and not on the mental turmoil that would be faced by a child in such a calamitous situation.

The Court further viewed that in matters relating to custody of children, primarily, the Court will consider the welfare of the children and decide which parent is suitable to look after the child in a better manner by providing them all necessary facilities and comforts, however, what the Court cannot evaluate is, whether the child feels happy only with one parent, ultimately, the child is the silent sufferer, having lost the love and affection of another parent. Thus, taking into consideration the welfare of the child, the Court granted interim custody to the mother/ applicant.

[X v. X, Application No. 2011 of 2021, decided on 16.09.2022]

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a writ petition filed for directing the respondents to obtain a declaration from the organisers of all Dusshera Groups and Sound Hire Service Providers to prohibit singing and playing any non-devotional songs and ‘Kuthu Pattu’ during Dusshera festival at Arultharum Mutharamman Thirukovil, Thoothukudi District, the division bench of R. Mahadevan and J. Sathya Narayana Prasad, JJ., has directed the police authorities to prohibit obscene and vulgar dance performance during Dusshera Festival. The Court took note of the photographs of Dusshera festival, filed by the petitioner and observed that show that such dances are performed by paid dancers exhibiting obscene and vulgar postures making mockery of the traditional culture and customs to be followed in Dusshera festival and denigrating the Hindu religious sentiments. Further, portrayal of women in an indecent fashion itself is an offence under the provisions of the Indecent Representation of Women (Prohibition) Act, 1981.

The Court noted that petitioner has initially filed seeking the very same relief for the Dusshera festival of the year 2017 and again in 2018. Wherein the Court has directed the authorities to ensure that there is no display of vulgarity or obscenity in connection with the temple festival of Arultharum Mutharamman.

The Court viewed that the petitioner has produced materials to substantiate his plea of exhibition of obscene and vulgar dance during the earlier Dusshera festival for the years 2017 and 2018. Thus, the apprehension of the petitioner to protect the traditional culture and customs of Dusshera festival from the vulgar and obscene dance performance, is well founded, and directed that the obscene and vulgar dance performance should be specifically prohibited by the Police authorities in the forthcoming festival and if anyone violates the same, appropriate action shall be taken against them in line with the Circular Memorandum dated 09.04.2019 issued by the Director General of Police, Tamil Nadu, that provides consolidated instructions regarding the procedures to be followed while granting permission to conduct cultural events, sports events, procession/meeting etc.

[B.Ramkumar Adityan v. District Collector, Writ Petition (MD)No.21756 of 2022, decided on 14.09.2022]


Advocates who appeared in this case :

For Petitioner: Advocate S. Sankar

For Respondents: Government Pleader P. Thilakkumar

Additional Public Prosecutor T. Senthil Kumar

Advocate M. Muthugeethayan

Madras High Court
Appointments & TransfersNews

The President has appointed Shri Justice T.Raja, senior-most Judge of the Madras High Court, to perform the duties of the office of the Chief Justice of that High Court, with effect from 22.09.2022 consequent upon superannuation of Shri Justice M. Duraiswamy, Judge, who is performing the duties of the Chief Justice, Madras High Court.

Madras High Court
Case BriefsHigh Courts

Madras High Court: In a suo motu contempt petition against the YouTuber Savukku Shankar, the division bench of G.R. Swaminathan and B. Pugalendhi, JJ. has held Savukku guilty for criminal contempt for proclaiming in the public domain that all Judges are corrupt and dishonest, as it was not a slip of the tongue and he himself asserted, he has been in the field for almost 13 years, and he knows what it means to utter a particular remark. Therefore, the Court sentenced Savukku to six months simple imprisonment.

The Court viewed that Savukku is no stranger to contempt proceedings and for the past six years the criminal contempt initiated against Savukku Shankar has not seen the light of the day which has emboldened him to be more vituperative, reckless and scandalous.

The Court observed that Suvakku is already facing proceedings for criminal contempt because he alleged in the open court that since one of the judges felt offended by his harsh criticism of some of the judgments, the said proceedings have been initiated. It was further observed that no exception can be taken to fair criticism of one’s judgments or judicial functioning and Article 19(1)(a) of the Constitution guarantees the right to freedom of speech and expression, however, this right is not absolute and is subject to Article 19(2) of the Constitution.

The Court observed that Savukku tweeted on 18.07.2022 raising a question as to whom one of the judges met at ‘Alagar Koil’ on a day when the case pertaining to ‘Maridhas’ was being enquired and was clearly suggesting that the outcome of the said case was influenced by the person whom one of the judges allegedly met. Since this innuendo questioned the judicial integrity of the Judiciary, the Registry was directed to take action in the matter.

The Court noted that the Savukku has given an interview to a YouTube Channel, namely, ‘Red Pixon’ on 22.07.2022, thereby trivializing the issue by suggesting that the Judge referred by him in his tweet could have met the temple priest. But in the very same interview, he said that “the entire higher judiciary is riddled with corruption”. Thus, the Court took cognizance of the aforesaid offending statement and issued notice to Savukku calling him to show cause as to why proceedings for criminal contempt should not be taken against him.

The Court noted that Suvakku has admitted that he had made the offending statements., however, he contended that these proceedings are bereft of jurisdiction and as the matter had not been forwarded to the Advocate General in the first instance, the present proceedings are not maintainable as per Rule 8 of the Contempt of Court Rules, 1975.

Suvakku further claimed to be deeply concerned with the under-representation of the suppressed classes and the over-representation of brahmins in higher judiciary and is entitled to highlight public causes and that he should not be prevented from doing so, but the Court held that would not amount to a mitigating circumstance at all.

The Court observed that “Section 15 of the Contempt of Courts Act, 1971 enables the High Court to take action on its own Motion and when such suo motu action is taken and Article 215 of the Constitution is invoked, there is no requirement to obtain the consent of the Advocate General”.

The Court also viewed that the statement that “the entire higher judiciary is riddled with corruption” was the subject matter of the show cause notice, and do not require a forensic mind to conclude that they are ex-facie scandalous and to denigrate and deride the institution of judiciary, and further applied the legal maxim “res ipsa loquitor” i.e. the thing speaks for itself, on this statement. It was further viewed that “Contemnor would be well within his rights to highlight specific instances of corruption., but they must be backed by materials. He cannot tar the entire institution with a single brush, as that would be crossing the lakshman rekha by a long shot”.

The Court took also note of the derogatory statement made by Savukku that “some District Judges appoint good looking widows and utilize their services”, and observed that, “this use of general and sweeping expressions is offensive and falls foul of law, however, making specific allegations based on prima facie evidence and in good faith would definitely fall within the ambit of the right to freedom of speech and expression”, and observed that the offending statements made by Savukku fall under criminal contempt of the highest degree as it portrays the entire institution of higher judiciary as corrupt.

The Court further noted that Savukku has not spared even the Supreme Court and its Judges and observed that “the contribution of the Apex Court is unparalleled. All its Judges are entitled to the highest respect and remarks impinging on their dignity cannot be casually made”

Moreover, Section 22 of the Contempt of Courts Act, 1971 states that the provisions of the Act shall be in addition to, and not in derogation of, the provisions of any other law relating to contempt of Courts and Article 215 of the Constitution declares that every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself.

The Court took note of the ruling in Arundhati Roy, In Re, (2002) 3 SCC 343, wherein the Court held that “all citizens cannot be permitted to comment upon the conduct of the courts in the name of fair criticism which, if not checked, would destroy the institution itself”. Further, it noted in Prashant Bhushan, In re (Contempt Matter), (2021) 1 SCC 745, the Court held “that the power of the court to initiate contempt is not in any manner limited by the provisions of the Contempt of Courts Act, 1971.

The Court also noted that Savukku has also stated that Judges are only for the rich and the powerful and observed that he is not an unknown individual and is a well-known YouTuber watched by lakhs of viewers. In the comments section of his interviews, Judges and Courts are portrayed in the most savage terms and his words have the effect of lowering dignity and prestige of Judiciary.

Moreover, the Court on the issue of whether the same judge who initiated the proceedings could have been a part of the Bench, observed that even when contempt is committed in the presence of a Judge concerned, he can still hear the matter if the contempt case is assigned to him or her by the Chief Justice.

The Court viewed that Savukku has neither expressed any regret nor offer any apology and has asserted that he was justified in making such derogatory statements. Further, a plain reading of these statements would lead anyone to the conclusion that they are likely to lower the prestige and dignity of courts and judges. Therefore, the Court holds that Savukku is guilty of criminal contempt and placed reliance on the principles set out by the Division Bench in the decision W. Peter Ramesh Kumar, In re, 2016 SCC OnLine Mad 1322, and sentenced him to six months simple imprisonment.

[The Registrar v Savukku Shankar, Suo Motu Contempt Petition 2022 SCC OnLine Mad 4542, decided on 15.09.2022]


Advocates who appeared in this case:

For Registry: Senior Advocate A.L.Somayaji

Advocate N. Mohideen Basha

For Respondent No.1: Contemnor in-person

For Respondent No.5: Asst. Solicitor General of India L.Victoria Gowri,

Madras High Court
Case BriefsHigh Courts

Madras High Court: The five-judge bench of P.N. Prakash, N. Anand Venkatesh, R. Mahadevan, M. Sundar, A.A. Nakkiran, JJ. in a 3:2 majority decision, held that jurisdiction of the High Court on its original side over matters of child custody and guardianship is not ousted in view of the provisions of the Family Courts Act, 1984 (FCA)and the decision in Mary Thomas v. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 continues to be a good law; while P.N. Prakash and N. Anand Venkatesh, JJ. disagreed with the majority opinion, and observed that the statutory jurisdiction under the Guardians and Wards Act, (GAWA)1890 is now exclusively vested with the Family Court and resort to the inherent jurisdiction under Clause 17 can be had only in cases where there is no statutory remedy before any court for redress.

The dissenting judges noted that the full bench in Mary Thomas v. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 has not adverted to the actual conflict that was between Pamela Williams v Patrick Cyril Martin, 1969 SCC OnLine Mad 264 and Rajah of Vizianagaram v The Secretary of State for India (1936) 44 L.W. 904, and has not examined the provisions of the GAWA, nor have examined the object and purpose behind the Family Courts Act, 1984 (FC Act) or the scope and effect of Sections 7 and 8 of the FC Act. Further, there was absolutely no discussion about Clause 17 of the Letters Patent at all and the full bench has confined itself to the issue as to whether the High Court was a District Court under the FC Act, 1984, vis-à-vis, the definition of ‘District court’ contained in Section 2(4) of the Code of Civil procedure,1908 (CPC), further, it also overlooked the fact that resorting to Section 2(e) of the FC Act to telescope the definition of “District” into the Family Courts Act, 1984 was unnecessary, thus, the Court viewed that the decision in Mary Thomas requires reconsideration.

The Court noted that, one of the primary issues to be considered in this case is that whether the jurisdiction of the High Court under Clause 17 of the Letters Patent could be taken away by the FC Act, 1984, in respect of matters concerning guardianship, custody or access to a minor, and viewed that this line of argument is over-simplistic and it overlooks a vital distinction between two very different types of jurisdictions, viz., the statutory jurisdiction exercised by the High Court under the GAWA , and the jurisdiction of the High Court under Clause 17 of the Letters Patent.

Placing reliance on a decision in Navivahoo v. Turner, 1889 SCC OnLine PC 10 , the Court viewed that it has no application to a case concerning the exercise of inherent parens patriae jurisdiction by the High Court as according to the history of Clause 17, the jurisdiction of this Court as a parens patriae in respect of infants, mentally retarded persons in the State of Tamil Nadu is a facet of its inherent jurisdiction, inherited from the erstwhile Supreme Court of Madras. Further, it is evident from Section 9 of the GAWA, which states that a petition for appointment of a guardian for the person or property of minor shall be made to a “District Court” having jurisdiction in the place where the minor ordinarily resides. Moreover, Section 4(4) of GAWA, expressly defines the District Court as the meaning assigned to that expression in the Code of Civil Procedure,1882, and includes a High Court in the exercise of its ordinary original civil jurisdiction.  Thus, as per Section 4(4), it is clear that a High Court, while exercising jurisdiction in respect of a petition under the GAWA would be a District Court within the meaning of the Act, exercising its ordinary original civil jurisdiction for the City of Madras, and not under its inherent jurisdiction under Clause 17 of the Letters Patent.

The Court took note of the ruling in S.D. Joshi v High Court of Bombay (2011) 1 SCC 252 wherein the Court held that “the Family Courts are to exercise special jurisdiction which is limited to the subject-matters spelt out under Sections 7(1)(a) and (b) of the FC Act, and  is vested with all jurisdiction exercisable by any District Court or any subordinate civil court under the law”, and viewed that legislative intent envisaged the Family Court as a Court of exclusive jurisdiction in respect of certain matters concerning the family, including guardianship and custody of children It is like a Special Court constituted to hear certain types of cases following a specially devised procedure and whose orders are made subject to appeal under a special provision with a special period of limitation.

The Court noted that another primary question is whether the High Court is a “District Court” for the purpose of Sections 7 and 8 & 2(e) of the FC Act, 1984, read with Section 2(4) of the CPC, and further viewed that Section 7(1) of the FC Act, 1984, invests the Family Court with all the jurisdiction over a suit or proceeding in relation to the guardianship of the person, or the custody of, or access to, any minor which jurisdiction was being exercised by a District Court under any law for the time being in force. Thus, the guardianship and custody jurisdiction statutorily vested with the High Court under the GAWA, in its capacity as a District Court, can now be exercised only by the Family Court by virtue of Section 7 of the FC Act, 1984

The Court further observed that the High Court cannot exercise its statutory or inherent jurisdiction concurrently with the Family Court while deciding matters of custody and guardianship under the GAWA, as Section 7(1) read with Explanation (g) and Section 8(a) of the FC Act, 1984, leads to this inescapable conclusion that the jurisdiction exercised by any District Court in respect of matters of custody or guardianship under the GAWA , will be exercised by the Family Court and that no District Court  shall exercise such jurisdiction. Further, Explanation (g) to Section 7(1) of the FC Act, 1984, must be construed liberally to further the object of the legislation, that it would take within its fold, application for appointment of a guardian for the person and property of the minor as well.

Moreover, the inherent jurisdiction of the Madras High Court under Clause 17 of the Letters Patent, 1865, is not affected by the FC Act, 1984. However, resort to the inherent jurisdiction under Clause 17 can be had only in cases where there is no statutory remedy before any Court.

[S. Annapoorni v. K.Vijay, 2022 SCC OnLine Mad 4367, decided on 02.09.2022


Appearances

For Petitioner: Advocate B. Poongkhulali

For Respondent : Advocate A.R. Palanisaamy


Also Read:

Madras High Court’s 3:2 verdict upholds its original jurisdiction in child custody cases; holds Mary Thomas to be a good law

 

Madras High Court
Case BriefsHigh Courts

Madras High Court: In an appeal filed under Section 374(2) of Code of Criminal Procedure, 1973 (CrPC) r/w Section 36-B of Narcotic Drugs and Psychotropic Substances, Act, 1985 (‘NDPS Act’) to set aside the conviction and sentence rendered by the Trial Court, G. Jayachandran, J. has set aside the conviction of the appellant/accused, and has observed that by preponderance of probability, he has established the absence of knowledge, further the evidence relied by the complainant does not prove that the appellant was conscious of the presence of heroin in the parcel given to him by another accused.

In this case, the appellant was alleged to be found possessing 1½ kg of Heroin with intention to transport it illegally to Kuwait, thereby committed offences under Sections 8(c) r/w 21(c), 22(b), 23(c) and 29 of NDPS Act. The issue in this case was, whether the Trial Court was correct in holding the accused guilty of possession of heroin relying upon Sections 35 and 54 of the NDPS Act, which provides for presumption of culpable mental state and the animus to possess.

The Court observed that the Trial Court, for reasons not properly explained, had failed to follow the dictum laid down in Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222 and in Noor Aga v. State of Punjab (2008) 6 SCC 417 and has wrongly applied the dictum laid in Madan Lal v. State of Himachal Pradesh 2003 (7) SCC 465 and Megh Singh v. State of Punjab (2004) SCC (Cri) 58 which are factually different from the case in hand.

The Court noted that the appellant claimed that he was not aware of the contents of the parcel given by the absconding accused, as he came and gave the parcel to the appellant saying it contained tamarind and wheat flour. Further, the appellant without any hesitation identified his bag and allowed the officials to examine his bag, as he was not aware of the character of the powder he was carrying, till the officials disclosed to him that it was heroin. Thus, the appellant was not conscious that he was in possession of heroin. Moreover, by preponderance of probability, the appellant has rebutted the presumption of culpable mental state. Further, to establish that the possession was conscious, the prosecution relied on the Call Details Records, however, no proof was produced by the complainant that cell number belongs to the appellant.

The Court also viewed that the previous statement recorded by Police Constable under Section 161(3) of CrPC has to be treated on a par with the statement recorded under Section 67 of the NDPS Act by the Officer of Narcotics Control Bureau (NCB) and the Trial Court erred in referring this inadmissible document to presume culpable mental state of the appellant. It further viewed that the complainant has failed to probe the case properly and there has been a perfunctory investigation at all stages.

The Court observed that “though not in all cases, the carrier can plead absence of culpability, in the peculiar circumstances and facts of this case, the knowledge of contraband in the airbag cannot be attributed to the appellant”. Thus, the appellant is set at liberty in this case.

[Anandam Gundluru v. Inspector of Police, 2022 SCC OnLine Mad 4486, decided on 01.09.2022]


Advocates who appeared in this case :

T.S.Sasikumar, Advocate, for the Appellant;

Special Public Prosecutor N.P.Kumar, Advocate, for the Respondent.

Madras High Court
Appointments & TransfersNews

The President appoints Shri Justice M. Duraiswamy, senior-most Judge of the Madras High Court, to perform the duties of the office of the Chief Justice of that High Court, with effect from 13.09.2022 consequent upon superannuation of Shri Justice Munishwar Nath Bhandari, Chief Justice, Madras High Court.

Madras High Court
Case BriefsHigh Courts

Madras High Court: In a case relating to the issue of concurrent jurisdiction of the High Court over matters of child custody and guardianship with the family Courts, the five-judge bench of P.N. Prakash, N. Anand Venkatesh, R. Mahadevan, M. Sundar, A.A. Nakkiran, JJ. in a 3:2 majority decision, held that jurisdiction of the High Court on its original side over matters of child custody and guardianship is not ousted in view of the provisions of Explanation (g) to Section 7(1) read with Sections 8 and 20 of the Family Courts Act, 1984 (FCA)and the decision in Mary Thomas v. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 continues to be a good law.

P.N. Prakash and N. Anand Venkatesh, JJ disagreed with the majority opinion of R. Mahadevan, M. Sundar, A.A. Nakkiran, JJ and observed that the statutory jurisdiction under the Guardians and Wards Act, 1890 is now exclusively vested with the Family Court and resort to the inherent jurisdiction under Clause 17 can be had only in cases where there is no statutory remedy before any court for redress.

The Court observed that the jurisdiction vested upon this Court under Clause 17 of Letters Patent of 1865 would broadly fall within the Civil Jurisdiction, however, what has been vested is an inherent jurisdiction of the superior Court in the nature of ‘parens patriae’ (parent of the nation) jurisdiction to safeguard the interests of such category of persons, such as, infants, lunatics and idiots, who are incapable or not in a position to take care of themselves or to safeguard their own interests.

The Court further observed that, to view an inherent jurisdiction such as the ‘parens patriae’ jurisdiction as a residuary jurisdiction or a purely supervisory jurisdiction would be to discourage against the very nature of such jurisdiction. Further, while the power and jurisdiction available to this Court under Clause 17 are not only much broader and larger in its scope and extent, but also would encompass every situation that warrants the interference of the High Court as a superior Constitutional Court in order to safeguard the interests of infants; and the jurisdiction vested in the Family Court by statute on guardianship is only one facet of the jurisdiction which inheres in a superior Constitutional Court, like the High Court. Thus, the fields occupied by the High Court and the Family Court cannot be said to be one and the same in the matters of guardianship and custody and while the jurisdiction of the High Court is much larger, there may be very few areas of overlapping jurisdiction between them.

Placing reliance on the ruling in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 , wherein the the Court held that “Letters Patent jurisdiction has to be expressly excluded and in the absence of an express repeal, the Letters Patent may be impliedly taken away only where the special enactment is a self-contained code”, the Court viewed that the FCA,1984 is only a procedural legislation and not a self-contained code because the substantive laws continue to be the statutory provisions or the personal laws relating to marriage, maintenance etc. As such, in the absence of any express repeal, the Letters Patent cannot be taken away by a legislation.

Moreover, Article 225 of the Constitution of India expressly preserves the jurisdiction of the existing High Courts, the jurisdiction of the High Court under Clause 17 is thus constitutionally preserved and in the absence of a self-contained code that deals with guardianship, the powers of the High Court cannot be ousted. Further, in view of Article 372, Clause 17 will continue to be in force until repealed or amended by a competent legislature or by an appropriate self-contained code. Thus, it is now well established that the High Court as a superior Constitutional Court can deal with matters of guardianship and custody even in its exercise of writ jurisdiction.

The Court referred to the ruling in Benedict Denis Kinny v. Tulip Brian Miranda, 2019 SCC OnLine Bom 13043, and observed that the power of the Constitutional Courts in exercise of their inherent jurisdiction are inviolable as they cannot be taken away by legislation or even by a constitutional amendment if that would hamper the basic structure of the Constitution. Thus, to say that such a broad power of a constitutional court which can be taken away only by way of a constitutional amendment and not by a statute but can be limited by statute to be used only as a residuary power, is a contradiction of sorts.

Hence, the Court observed that “since the parens patriae jurisdiction of the High Court is an inherent power stated expressly in the Letters Patent and saved by Articles 225 and 372 of the Constitution, they continue to be part of the inherent powers of the superior constitutional courts and no statute much less a procedural Legislation, can place fetters on such a power”.

Further, the Court while interpreting Section 7 (1) read with Explanation (g) of the FMA, 1984 observed that the power to appoint a guardian for the property of the minor also along with the person of a minor would not be legally permissible.

It was also observed that the Parliament in its wisdom, has used the term ‘High Court’ not in one but in eight different provisions of FCA, thus, it has consciously chosen to not to use this term in Sections 7 and 8 of FCA, hence, the Court cannot read anything into a statutory provision which is plain and unambiguous .Further, reading the FCA as a whole starting from 59th Report of the Law Commission to statement of objects and reasons and provisions, it is clear that the Parliament never intended to deprive High Court of its powers in guardianship of the person or the custody of or access to any minor matters and its intention was only to create Special Courts and move these matters out of the realm of regular District Courts.

Moreover, the Court observed that the High Court does not need an appendix of either the Guardians and Wards Act,1890(GAWA) or any other statute in order to exercise its jurisdiction under Clause 17 of the Letters Patent, and if the petition has stated the provisions under the GAWA and invoked the jurisdiction of the High Court under Clause 17 it will not make the High Court a District Court for the purposes of its exercise of jurisdiction under Clause 17 of the Letter Patent,thus, the exercise of the ordinary original jurisdiction of the High Court within the meaning of Section 4(4) of the GWA when invoked along with the meaning of Clause 17 of the Letters Patent, cannot be said to be ousted by the FCA,1984.

The Court further viewed that Section 4(4) of GAWA talks about the 1882 CPC. Therefore, the definition of ‘District Court’ under GAWA is hardly a guide to conclude the reference on hand. It further noticed that under GAWA, the term ‘the Court’ has also been explained vide section 4(5) and that inter-alia talks about District Court having jurisdiction to entertain an application under GAWA for appointment of guardian. Thus, a conjoint reading of sections 4(4), 4(5) and section 3 of GAWA makes it clear that the power of the High Court is intact.

Moreover, Section 100-A of Code of Civil Procedure ,1908 (CPC) makes it clear that the Letters Patent of any High Court cannot be swept away by section 2(4) CPC and if anything contained in the Letters Patent has to be excluded it has to be done expressly.

The Court denied any reconsideration of the decision in Mary Thomas Vs. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 as the full bench in this case has appropriately dealt with the issue and the only fact that the said decision did not advert to, discuss or analyse the conflict between the decisions in Pamela Williams v Patrick Cyril Martin, 1969 SCC OnLine Mad 264 and in the Rajah of Vizianagaram v The Secretary of State for India (1936) 44 L.W. 904 alone, cannot be a reason to hold that this decision requires reconsideration as there was no apparent conflict between these two judgements. Further, these judgements have been rendered by two Division Benches at different points in time where the legal circumstances surrounding them were very different.

Further, the Court noted that the reconsideration of Mary Thomas has been sought on two grounds that the full bench did not consider Raja Soap Factory v. S.P. Shantharaj, (1965) 2 SCR 800,and Section 20 of FCA has overriding effect, and viewed that the Mysore High Court did not have original jurisdiction on the date of presentation of plaint in Raja Soap Factory. Moreover, Section 20 of FCA has no application as clause 17 of Letters Patent confers substantive power while section 20 is a procedural provision and there is nothing inconsistent.

[S. Annapoorni v. K.Vijay, 2022 SCC OnLine Mad 4367, decided on 02.09.2022]


Advocates who appeared in this case :

B. Poongkhulali, Advocate, for the Petitioner;

A.R. Palanisaamy, Advocate, for the Respondent.

Madras High Court
Case BriefsHigh Courts

Madras High Court: In a case relating to a writ petition filed by Tamil Nadu electricity minister V. Senthil Balaji for issuance of a writ of certiorari, to call for the entire records in connection with the Enforcement Case Information Report (ECIR) issued by the Enforcement Directorate (ED), and to quash the same as illegal and unconstitutional, the division bench of T.Raja and K. Kumaresh Babu, JJ. observed that the quashing of the proceedings in Complaint case of 2021 and staying of the proceedings in Complaint Case of 2020 and of 2021, the scheduled offence for the present case is eclipsed, suspended or stop operating during the period of stay, and the ED should have awaited the finality of the said proceedings, thus, refrained ED from proceeding any further pursuant to the impugned proceedings.

The Court took note of the ruling in Vijay Madanlal Choudhary v. Union of India, 2021 SCC OnLine SC 3286, wherein the Court dealt with the powers of the authority to proceed against a person under the Prevention of Money laundering Act, 2002(‘PMLA’), and held that when a person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by a Court of competent jurisdiction, then, there can be no offence of money-laundering against that person and viewed that the proceedings in complaint case of 2021 have been quashed, the ED would not proceed against Senthil Balaji. However, the respondent submitted that the benefit of the order of quash cannot be extended to the orders of stay granted in two other cases, as they should come for inquiry responding to the summons issued under Section 50 of PMLA.

The Court observed that the effect of an order of stay means that the operation of the impugned order is stayed or stands stalled as if the impugned order does not exist. Moreover, as the ECIR itself was only on the basis of the said three First Information Reports,thus the Court viewed that “when the proceedings pursuant to the FIR have been stayed by the High Court, whether the ECIR,which is also pursuant to the FIR, can be proceeded with, is a question that stares at open, and our considered answer is in the negative”.

The Court further observed that apart from the said FIR’s there were no other materials based upon which the proceedings under PMLA have been initiated, thus,when the cases which culminated from the said FIR’s have been stayed, the authority must have refrained itself from proceeding any further, as the summon issued to Senthil Balaji was pursuant to the initiation of ECIR based upon the FIR’s, and there was no scheduled offence as per Section 2(y) of the PMLA for the  ED to proceed under the said Act.

The Court took note of the ruling in Arun Kumar v. Union of India, (2007) 1 SCC 732,wherein the Court held that an authority by erroneously assuming existence of a jurisdictional fact, cannot confer upon itself jurisdiction which it otherwise does not possess.

Thus, the Court held that the impugned proceedings/summons do not have any legal sanctity and the interim order of stay will be subject to the final orders in the main proceedings, after which the eclipse would also wane away. Hence, it left open all the questions that are raised on the merits and de-merits of the proceedings initiated by the respondent, to be dealt with in appropriate proceedings.

[V.Senthil Balaji v. Karthik Dasari, 2022 SCC OnLine Mad 4417, decided on 01.09.2022]


Advocates who appeared in this case :

For Petitioners: Senior Advocate Sidharth Luthra

Senior Advocate S.Prabhakaran

For Respondent: Additional Solicitor General R.Sankaranarayanan

Special Public Prosecutor S.Sasikumar

Madras High Court
Case BriefsHigh Courts

Madras High Court: In a case relating to a petition filed by the Central Bureau of Investigation (CBI) for directing the media to refrain from disclosing the identity and other particulars of the rape victims of the famous ‘Pollachi sexual abuse and extortion case’, M.Dhandapani, J. observed that since the matter pertains to sexual abuse and sexual violence, all the print and electronic media are restrained from publishing, telecasting or broadcasting any materials pertaining to deposition of the victims or any of the witnesses; the identities of the victims, their family members and the witnesses, either in morphed form or blurred form. Further, restrained the media from publishing any oral, documentary or digital evidence that may be marked during the course of the trial.

In the present case, a weekly magazine, ‘Nakkheeran’ had published materials which the Court has directed to be kept within a closed sphere so that the victims and their family will feel secure and would disclose the true facts during the trial. However, the published materials have given intricate details about the depositions of the victims including their names and the manner in which they came in contact with the accused, thereby putting their lives at risk.

The Court observed that “the publication of the aforesaid materials is not only in bad taste, but against the very spirit of the order and is a direct interference in the dispensation of justice”. It further viewed that weekly magazine ‘Nakkheeran’ is required to be impleaded in this petition as a respondent, to show cause as to the necessity for publishing the said material, when it has been specifically held by the Court that the Witness Protection Scheme is to be implemented by the State in the interest of the victims and witnesses.

The Court viewed that it did not implead the media to be respondents in the aforesaid petition, as the Court had reposed faith on the media to be mindful of its duty to its citizens and also hoped that media would realize the turmoil which the victims and their family would have gone through in the aftermath of the offence committed against them, which is not only against them, but against the entire humanity.

However, it viewed that “its impressions are mere hallucinations and that the print and electronic media are not mortals to understand the implications of the act that they commit, which, in effect, affect the victims and their family members gravely, but are merely guided by the ratings and the monetary considerations that fall out of the news that they take to the palm of its citizenry”.

The Court noted that the magazine has published the names of the victims with their detailed deposition before the investigating officers along with the names of the accused, without thinking that this would not only jeopardize the ultimate outcome of the trial but would have an intimidating effect on the victim forcing them to go into a shell and desist from coming out with the truth for fear of their lives and that of their family. Further, the Court observed that “this will only lead to the offenders walking out unpunished and ultimately the entire investigative mechanism as also the justice delivery system would be ridiculed not only by the public, but also by the media”. Thus, the Court ordered Nakkheeran Publications and its Editor to be impleaded as party in the case, and further restrained the media from disclosing any more information relating to the victims,witnesses or their families.

The matter will next be taken up on 15.09.2022.

[State v. K. Arulnantham, 2022 SCC OnLine Mad 4391, order dated 02.09.2022]

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a case related to a reference made by the Additional District and Sessions Judge under S. 366 Code of Criminal Procedure, 1973 for confirmation of the death sentence awarded to Kattai Raja and the criminal appeal filed by him challenging the conviction and sentence, the division bench of P. N Prakash and R. Hemalatha, JJ. held that this is yet another ‘run-of-the mill case' and not a case falling under the category of ‘rarest of rare cases' for awarding death penalty, thus, modified the punishment to life imprisonment without any remission benefits for 25 years and to pay a fine of Rs.10,000/-, and in default, to undergo rigorous imprisonment for a period of six months.

The Court noted that a horrifying murder was committed by Kattai raja aided by four of his accomplices by repeatedly attacking the victim's head and hands with a bill hook. Further, as per the FIR, the time of the complaint was 3.30 p.m., on 18.06.2013, however, the FIR reached the concerned Magistrate only at 12.30 a.m. on 19.06.2013

The Court by placing reliance on the ruling in Ravinder Kumar v. State of Punjab, (2001) 7 SCC 690, held that delayed FIR even by some hours would not by itself adversely affect the case of the prosecution and in some instances, it may not be treated fatal to the prosecution.

The Court, while taking note of all the evidence, viewed that a brutal nature of the assault has been inflicted on the victim and the wild and bizarre attack and the resultant injuries are heart rending. Further, there have been multiple fractures on the two thighs and the skull, and the neck opened up in the attack exposing the brain, blood vessels and other internal organs.

The Court took note of the ruling in Machhi Singh v. State of Punjab, (1983) 3 SCC 470, wherein the Court laid out specific grounds, like, the way of commission of homicide, crime deserving hatred in society, intensity of the crime and character of casualty of homicide, on the basis of which it can be determined if a case is falling under the umbrella of ‘rarest of rare case’ or not.

It further observed that “there is no straight-jacket formula for the ‘rarest of rare doctrine' and it can be divided into two sub-parts; aggravating circumstances and mitigating circumstances; in the instant case, the aggravating circumstances are evidently disturbing especially with having such a notorious track record and criminal background”.

Moreover, the court was of the view that in cases like the present one, the attempt to drag the legal proceedings to the maximum extent and intimidate people has been the standard modus operandi and it is disturbing to see that in the instant case, the trial commenced nine years after the murder and Kattai raja not only jumped the bail, but also went into hiding for a prolonged period during which also he was very active in committing heinous crime including murder. It also observed that “the ghastly murder in this case exhibited premeditation and meticulous execution and the attack was a calculated one to annihilate the victim”.

The Court, by applying the principles laid down in Bachan Singh v. State of Punjab (1980) 2 SCC 684), viewed that the victim himself had borrowed money from Kattai Raja knowing well his full credentials. Further, murders for disputes involving money, land and women are very common and even though this murder, was shocking, but does not come within the category of “rarest of rare cases” for awarding capital punishment. The Court reduced the punishment to imprisonment for life, with a condition that Kattai raja must not be entitled to any remission benefits for a period of 25 years in the light of the decision in Sahib Hussain Alias Sahib Jan v. State of Rajasthan (2013)9 SCC 778.

[State of Tamil Nadu v Kattai Raja, 2022 SCC OnLine Mad 4353, decided on 30.08.2022]


Advocates who appeared in this case :

For Appellants: Advocate V. Gopinath

For State: Public Prosecutor Hasan Mohamed Jinnah

Additional Public Prosecutor A.Thiruvadi Kumar

Advocate .S.Santhosh

Advocate.J.R.Archana

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a case related to allegation of murder and rape of a 12th standard school-girl, G.K.Ilanthiraiyan, J. viewed that there is no evidence to attract the offence under rape and murder and on perusal of the suicidal note of the deceased, it is very clear that the deceased felt difficulties in studies. Therefore, it is a clear case of suicide by her.

The Court observed that:

“It is an unfortunate and sorry state of affairs that the teachers who teach the students are facing threat from their students and their respective parents. It is very unfortunate that the petitioners have now been arrested and under imprisonment for advising the students to study well. Even as per the suicidal note, there is no evidence to show that the petitioners instigated the deceased to commit suicide soon before her death”

In the present case the deceased studied in 12th standard at Sakthi Higher Secondary School as a day scholar. Thereafter, she was boarded in the hostel of the said school. On 13.07.2022, the parents of the victim girl received a phone call from the school and were informed that the victim jumped from the third floor of the hostel. After 30 minutes, the parents received another call and were informed that their daughter died, and her body was kept in the Government Hospital. Thereafter the parents of the deceased verified the place of death and found that there was no evidence to show that the deceased jumped from the building,thus, her parents suspected the school authorities with regards to their daughter's death and lodged a complaint.

The FIR was initially registered under S.174 of the Criminal procedure Code, 1973 and was later altered to the offence under S. 305 of the Penal Code, 1860 and S. 75 of Juvenile Justice (Care and Protection of Children) Act, 2002 and S. 4(B)(ii) of Tamil Nadu Prohibition of Harassment of Women Act, 2002 against five accused persons.

The Court observed that the parents of the deceased compelled her to continue her studies in Residential School and the statements of the classmates of deceased revealed that the deceased felt difficulties in solving equations in Chemistry, further, as per the suicide note also, the deceased felt difficulties in solving the equations in Chemistry. Moreover, she requested the correspondent and Secretary in the suicidal note to return the tuition fees as well as the book fees to her parents. Therefore, it is a clear case of suicide and there is absolutely no evidence to show that the petitioners had instigated the deceased to commit suicide as alleged by the prosecution.

Placing reliance on the autopsy reports and expert opinion, the court observed that “the other injuries found on the body of the deceased are all ante-mortem injuries and there is no iota of evidence for rape and murder of the deceased as per the postmortem reports”. It further observed that the mark found in the right breast of the deceased happened due to gravel injuries, the blood stain in the inner garments is due to the extravasation of blood in the surrounding para vertebral muscles. Further, there is no injuries found on her private parts.

The Court observed that “when the teachers are directing their students to study well and to tell the derivation or equation, it is part and parcel of the teaching, and it would not amount to abetment to commit suicide. Therefore, the offence under S. 305 of Penal Code is not at all attracted as against the petitioners”, hence, bail was granted to all the petitioners.

[Kiruthika Jayaraj v. State of Tamil Nadu, Crl.O.P.Nos.20088,20135 and 20406 of 2022, decided on 26.08.2022]


Advocates who appeared in this case :

S.Prabakaran, Advocate, for the Petitioners;

Public Prosecutor Hassan Mohammed Jinnah and Additional Public Prosecutor A.Damodaran, Advocate, for the Respondent.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a case related to an appeal filed to set aside the judgment and enlarge the appellant on bail, the division bench of S.Vaidyanathan and A.D.Jagadish Chandira, JJ. observed that no offence had actually taken place and no complaint has arisen from the so-called victim, but it is the case of the prosecution that merely on a suspicion of a police officer on duty who after seeing the appellant had enquired about him and on his confession statement the entire case of the prosecution had commenced and thereafter, keeping the statement of the appellant as a basis, the other links of the case of the prosecution, namely, the associates of the appellant in the alleged conspiracy had been fused.

The appellant was charged with offences under Ss.153-A(1)(b), 120-B, 201 of Penal Code, 1860 (IPC); S.7(1)(a) of Criminal Law Amendment Act,1932 (CLA); S. 25(1A) of Arms Act, 1959 and S.16 of Unlawful Activities (Prevention) Act, 1967 (UAPA), and was remanded to judicial custody on 08.03.2022 and is in incarceration for more than 100 days.

The Court took note of the provisions of the UAPA Act and observed that “when an offence falls within the provisions of Chapter IV of the Act, necessarily, while deciding an application for bail, the court has to take into consideration the proviso to Section 43D (5) of the Act and has to formulate an opinion as to whether there are reasonable grounds for believing that the accusation against the accused is prima facie true”.

The Court observed that initially, the prosecution had come out with allegations against the accused for the offences punishable under the provisions of IPC and CLA Act, later, the offence under the provisions of Arms Act got included and thereafter, the offence punishable under the provision of UAPA Act was introduced. It viewed that the provisions of UAPA Act have been included only in order to deny/delay the appellant from getting bail from the court and there is no other material to pin-point that the appellant and other accused had intended to commit the murder of the victim to create terror and fear among the public and people of other sections.

The Court further observed that “the State police has referred the case to be investigated by the National Investigation Agency (NIA), however, said proposal was rejected by NIA which speaks much about the case of the prosecution”. It relied on the judgement in National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, wherein the Court laid down the aspects that need to be considered for deciding a bail application; and further took note of the ruling in Union of India v. K.A. Najeeb (2021) 3 SCC 713, wherein the court held that “ the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution and both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised”.

Moreover, as there was no complaint from any person and nobody was injured in this case, this case was merely registered based on suspicion and confession statement of the appellant; The Court held that “the allegations against the appellant do not fall within the definition of “Terrorist Act” and there are no reasonable grounds for believing that the accusation against the appellant is prima facie true”, hence, released the appellant on bail.

[Sadam Hussain v. State of Tamil Nadu, Criminal Appeal No.597 of 2022, decided on 26.8.2022]


Advocates who appeared in this case :

S.M.A.Jinnah, Advocate, for the Appellant;

Add. Public Prosecutor Babu Muthumeeran and Special Public Prosecutor (NIA) R.Karthikeyan, Advocate, for the Respondents.

Madras High Court
Case BriefsHigh Courts

Madras High Court: In a case related to an appeal filed for the cancellation of an order of dismissing the bail application by the Special Court under the National Investigation Agency Act (Sessions Court for Exclusive Trial of Bomb Blast Cases) (Special Court), S.Vaidyanathan and A.D. Jagadish Chandira, JJ. released the appellant on bail on executing a bond for a sum of Rs.25,000/ with two sureties and directed the Special Court to proceed further with the trial on a day-to-day basis.

The present case was registered under Ss. 16, 17, 18 and 20 of Unlawful Activities (Prevention) Act, (UAPA),1967 and Ss. 120-B, 34, 124-A and 489-C Indian Penal Code, 1860(‘IPC’) against the appellant and other accused for offences related to a threat emerging from a live conspiracy to smuggle explosives and terrorists into India from Sri Lanka and execute bomb attacks at the US Consulate in Chennai, Israel Consulate in Bangalore, other vital installations and places of public congregation in Southern India. The other accused persons were convicted. However, during the investigation, the appellant was found to be a habitual trafficker of high-quality counterfeit Indian currency notes, he was enlarged on statutory bail by the Special Court, while so, since the appellant did not turn up before the Special Court for the hearing of the case, summons were issued on various dates, and since he did not turn up even for that, the Court had issued a non bailable warrant of arrest against him.

Meanwhile, he was arrested by the Chennai Police under Section 392 IPC, and while he was in prison, he was produced before the Special Court and was remanded under Section 309 CrPC.and the trial as on date is pending for framing of charges against the appellant.

After that the appellant filed for bail and the same was dismissed by the Special Court invoking Section 43D (5) of the UAPA finding “prima facie” case as against the appellant, which lead to the present appeal.

The Court noted that the appellant had been granted statutory bail and it wasn’t cancelled. However, the Special Court had remanded the appellant under Section 309 CrPC., and by referring to the ruling in Raghubir Singh v. State of Bihar (1986) 4 SCC 481, wherein the Court held that S. 309(2) merely enables the court to “remand the accused if in custody” and it does not empower the court to remand the accused if he is on bail. It does not enable the court to “cancel bail” as it were, and that can only be done under Section 437(5) and Section 439(2).

The Court observed that “the appellant stands on a different footing than the other accused persons, who have been found guilty and convicted. Further, even though the delay in conducting the trial may be attributed to the appellant prior to his arrest, he is not responsible for the delay after his arrest and that he has been in prison for almost a year without there being any progress in trial and that in toto he had been in prison for more than 4 years.”

The Court also took note of the ruling in Union of India v. K.A. Najeeb (2021) 3 SCC 713, wherein, the Court held that the presence of statutory restrictions like Section 43-D (5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution, and both can be harmonised. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial. The courts are expected to appreciate the legislative policy against grant of bail but the rigors of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Further in Asim Kumar Haranath v. National Investigation Agency (2021) SCC OnLine SC 1156, it was held that while deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long as timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice.

The Court observed that:

“the law is well settled, that in case where the accused is on bail in non-bailable offence and did not appear on hearing date and non bailable warrant is issued, on appearance of the accused or on his production by police through Prisoner on transit (PT) warrant, opportunity should be given to the accused to explain his non-appearance and decide as to whether to let him off by recalling the warrant or to cancel the bail by recording reasons and he cannot be straightway remanded to judicial custody as a PT warrant can never be converted into a regular warrant in a case where the accused person is already on bail”

It further observed that as the appellant is in custody for more than a year without any progress in trial, and even the gravity of offence against him is comparatively lesser than that of the other convicted accused, the continued detention of the appellant is in violation of his right of personal liberty and the appellant is entitled to grant of bail subject to imposition of certain stringent conditions and directed the Special Court shall proceed further with the trial on a day to day basis in accordance with the guidelines given in Vinod Kumar v. State of Punjab (2015) 3 SCC 220.

[Noorudeen v. State of Tamil Nadu, 2022 SCC OnLine Mad 4223, decided on 26.08.2022]


Advocates who appeared in this case :

R. Sankarasubbu, Advocate, Counsel for the Appellant;

Public Prosecutor R.Karthikeyan, Advocate, Counsel for the Respondent.

Madras High Court
Case BriefsHigh Courts

Madras High Court: In an appeal filed against the ruling of the Motor Accident Claims Tribunal, granting compensation to the three deceased persons travelling on a single motorcycle and one of the claimant being the rider of the only vehicle involved in the accident; R. Tharani, J. has held that under S.166 of the Motor Vehicles Act, 1988 which provides for the application of compensation for certain nature of accidents, it is the duty of the claimants to prove negligence on the part of the rider. It further held that the tort feasor himself cannot claim compensation, and as the rider has borrowed the vehicle from the owner; thus, he stepped into the shoes of the owner and he must be considered as the owner of the vehicle, and due to that he cannot claim any compensation from the Insurance Company. It was further observed that claimants can file a petition either under S.163 (A) or S.166 of the Motor Vehicles Act, 1988 and it’s not proper to file it under both the provisions.

In this case, the rider of the two-wheeler allowed two persons to occupy the vehicle as pillion riders and he hit the vehicle on the sand heap on the road and dashed against a palmara tree. The rider of the two-wheeler, died on the spot and the other two persons died on the way to the hospital. The Appellants are their dependents and they have claimed compensation. The Motor Vehicle Tribunal has awarded separate compensation to all the claimants. The Insurance company has filed the present appeal against those awards.

The Court took note of the Supreme Court’s ruling in Ningamma v. United India Insurance Co. Ltd. ,(2009) 13 SCC 710, wherein the Court also dealt with the similar issue, whether the legal representatives of a person who was driving a vehicle after borrowing it from the owner meets with accident without involving any other vehicle, would be entitled to claim compensation under Section 163-A of M.V. Act? The Supreme Court held that “No borrower steps into the shoes of the owner and the owner cannot himself be a recipient of compensation as liability to pay the same is on him.”

The Court in the present appeal, set aside the award granted by the Tribunal to the rider of the two-wheeler, and observed that “the rider of the motorcycle was the tort feaser and he borrowed the vehicle from his brother – the first respondent therein and hence, the claim on his death is not maintainable. The claimants are not entitled to claim any compensation”.

The Court, by relying on its own judgments and other Supreme Court judgments observed that there were three persons travelling on a motorcycle at the time of accident, which is against the Rules. Hence, there was contributory negligence on part of the two pillion riders. The Court deducted 50% towards the contributory negligence of the two-pillion riders.

[National Insurance Company Limited v. Sumathi , 2022 SCC OnLine Mad 4221 decided on 12-08-2022]


Advocates who appeared in this case :

D.Sivaraman, Advocate, Counsel for the Petitioners;

N.Sudhagar Nagaraj, Advocate, Counsel for the Respondent.

Madras High Court
Case BriefsHigh Courts

Madras High Court: In the case relating to the issue raised by the petitioners, that whether Tamil Nadu Electricity Regulatory Commission (‘the Commission’) constituted under Section 82 of the Electricity Act, 2003(‘the Act’) without having a person of law as one of its members is competent to entertain and dispose of the petitions, relating to tariff fixation under Section 86(1)(a) of the Act, and whether the Commission discharges an adjudicatory function while dealing with such petitions., G.R. Swaminathan, J. observed that a law member is required to be on the bench of the commission during adjudicatory matters, but, presence is not mandatory for matters involving quasi-judicial functions, however, in the present case, the Court also took note of the ruling in State of Gujarat v. Utility Users Welfare Association, (2018) 6 SCC 21, wherein it was held that it is mandatory that there should be a person of law as a Member of the Commission, hence, it restrained from passing the final order on the tariff petitions till a law Member is appointed and held that the moment the appointment of the law Member is notified, the Commission is free to formally dispose of the Tariff Petitions.

The Court further observed that tariff fixation is not an adjudicatory function by relying on the ruling in State of Gujarat v. Utility Users Welfare Association, (2018) 6 SCC 21, wherein it was held that the determination of tariff is a regulatory function, thus, it observed that tariff fixation is not an adjudicatory function. The Court even clarified that despite the above observation of the Supreme Court being the obiter dicta and not a ratio decidendi, it will be binding on the High Court. It rejected the petitioner’s contention that tariff fixation is adjudicatory function, and held that “since it is not an adjudicatory function, there is no bar for the Bench comprising the present Chairman and the technical Member to hear the tariff petitions”

However, the Court reiterated State of Gujarat v. Utility Users Welfare Association, (2018) 6 SCC 21 , that there must be a member with legal background in the Commission and it cannot be ignored, hence, it restrained the Commision from passing final order on the aforementioned tariff petitions, despite it being a regulatory function, till a law Member is appointed and allowed the present proceedings to continue, by stating that “everything can be finalized by the Commission as now constituted except the formal declaration of the orders on the tariff petitions. The moment the appointment of the law Member is notified, the Commission is free to formally dispose of the Tariff Petitions”

It further gave the petitioners a week’s time to place their objections/suggestions before the Commission.

[Tamil Nadu Spinning Mills Association v. Tamil Nadu Electricity Regulatory Commission, 2022 SCC OnLine Mad 4262, decided on 23.08.2022]


Advocates who appeared in this case :

Counsel for the Petitioner: Sricharan Rangarajan

Counsel for the Respondents: Senior Advocate P.Wilson,

Mr.Richardson Wilson

Senior Advocate G.Rajagopalan

Senior Advocate Chitra Sampath

Government Pleader K.Balasubramani

Madras High Court
Case BriefsHigh Courts

Madras High Court: In the case relating to the rights of the LGBTQIA+ community, N. Anand Venkatesh, J. has observed that six months’ time sought by the Government to finalize the Transgender Policy and the rules is completely unacceptable and this shows that priority is not being given to this issue and expects the Government to appreciate the concern shown by this Court. The Court took note of the submissions given by the Additional Advocate General and directed all concerned, including the press, to take note of the notification published in the gazette on 20.08.2022 and to address persons belonging to LGBTQIA+community by using only the notified terms.

The Court observed:

This process has been going on for more than a year and it is not known as to why six months’ time is sought for to bring out the Transgender Policy and the rules under the 2019 Act. The Government must bear in mind that persons belonging to LGBTQIA+ community have been sidelined from the mainstream of the Society for too long and it is high time that top priority is given to implement the policy and rules”.

It further viewed that, if the Government is really willing and serious about the upliftment of LGBTQIA+ community, some urgency must be shown to finalize the policy and the rules.

The Court, hence, directed the Additional Chief Secretary to file a status report and to explain the present status of the policy, the rules and the process yet to be completed regarding the same, after which the Court will fix some time lines for the completion and implementation of the policy and the rules. It also directed the National Medical Commission to upload the recommended modifications given by the expert committee on their website.

The Court further directed the counsel for the respondents to file the status report after taking specific instructions from the National Medical Commission, as to whether any subsequent draft regulations have been uploaded on the website by incorporating conversion therapy as a professional misconduct, and whether any communication to the Medical Colleges and Education Boards has been made for implementing the revised guidelines for competency-based PG Training Programme for MD in Psychiatry and for preparation of module on psychiatric issues among LGBTQIA+ community group.

The Court expressed disappointment towards the reasons provided by the Ministry of Social Justice and Empowerment for failing to enlist the NGOs who are active in the field of welfare of LGBTQIA+ community, despite the previous order, and observed that “a careful scrutiny of the allocation of business rules of the Department of Social Justice and Empowerment clearly shows that it is the Ministry, who is responsible for enlistment of NGOs and they seem to be under the mistaken understanding that welfare of Transgender persons will not cover the persons belonging to LGBTQIA+ community. The persons belonging to this community are sidelined by this society and they require societal empowerment.”

The Ministry has been further directed to take up the issue seriously, since the NGOs, who are working for the upliftment of the LGBTQIA+ community must be properly empanelled.

The Court to protect the rights of LGBTQIA+ community in Tamil Nadu directed the government to develop guidelines.

The matter will next be taken up on 02.09.2022.

[S. Sushma v. Commissioner of Police, 2022 SCC OnLine Mad 4255, decided on 22.08.2022]

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: The Division bench of Munishwar Nath Bhandari, CJ. and N. Mala, J. has held that the temple or group of temples which were constructed as per the Agamas would be governed by the custom and practice, not only in respect of the worship of the deity, but in all respects, which includes even the appointment of Archakas, and not by the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020. ( ‘The Rules 2020')

The Court observed that:

“If any appointment of Archaka is made offending the Agamas, it would be amenable to challenge before this court by the individual aggrieved person. It is again clarified that the direction in this judgment would apply only to temples which were constructed as per Agamas, and not for any other temple and, therefore, we have not accepted the challenge to Rules 2(c), 2(g), 7, 9 and 11 to 15 of the Rules of 2020, but apply the doctrine of reading down to protect the rights guaranteed under Articles 16(5), 25 and 26 of the Constitution of India.

In the present case, a batch of writ petitions were filed challenging constitutionality of certain provisions of the Rules, 2020 in reference to Articles 16(5), 25 and 26 of the Constitution of India and the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. (‘The Act, 1959'). It is regarding the appointment of Archaka in those temples where construction, installation of idols and worship of deity is as per Agamas. The petitioners argued that the government, by ignoring the rituals and customs stipulated in the Agamas, framed the Rules of 2020 of prescribing eligibility and qualification for different posts, including Archaka.

The Court reiterated Seshammal v. State of Tamil Nadu, (1972) 2 SCC 11, and Adi Saiva Sivachariyargal Naia Sangam v. Government of Tamil Nadu , (2016) 2 SCC 725, wherein the appointment of Archaka has been allowed as per the Agamas. The Court was of the view that the judgments of the above two cases need to be squarely applied to the facts of the present case, but certain clarification on the facts is required and for that even the issue is to be addressed in reference to the challenge to the Rules of 2020.

The Court first dealt with the constitutionality of Rule 2(c), of the Rules of 2020 which defines the term “appointing authority”, under which the appointing authority is not only trustee, but even a Fit Person. The petitioners challenged the authority of the Fit Person to appoint Archakas.

The Court observed that the definition of the term “appointing authority” is not offending the constitutional provisions in any manner or even the provisions of the Act of 1959. The Court also stated that “the right to make appointment of the Archakas lies with the trustees, but this court cannot be oblivious to the fact that in the absence of the trustees, the affairs of the temple have to be looked after by someone. Only in the absence of trustees or for any reason given in Section 49 of the Act of 1959, a fit person is appointed to exercise the power of trustees”.

The Court directed the government to not continue the arrangement of fit person for indefinite period and ordered that the trustees should be nominated or appointed at the earliest.

Further, Rules 7 and 9 of the Rules of 2020 have been challenged mainly on the ground that they stipulate eligibility, qualification and age even for appointment of Archakas, and even if an Archaka is performing pooja for last many years and gained experience, he would be ineligible for appointment in the absence of requisite qualification. The Court, while upholding the constitutionality of Rules 7 and 9 of the Rules of 2020, read down these provisions in regard to the appointment of Archakas in the temple or group of temples, which were constructed as per Agamas and observed that “if Rules 7 and 9 of the Rules of 2020 are struck down, it will create a situation where the appointment to other posts than of Archakas would remain unguided (…). However, the appointment of Archakas in the temples constructed as per Agamas would be governed by the Agamas and for that the Rule under challenge would not apply. It would otherwise offend Articles 25 and 26 of the Constitution of India.”.

It was further observed that Rule 2(g) of the Rules of 2020 that provides the definition of the term “Executive Authority”, do not offend any constitutional provision because Section 28(1) of the Act of 1959 directs the trustees to administer the affairs of the temple in accordance with the terms of the trust or the usage of the institution. Hence, the inclusion of the word “Executive Officer” after the words trustee and fit person would not be any person other than who can administer the religious institution.

Rule 11 to 15 of Rules 2020 were held to be constitutional. Further, the Court, by not holding Rule 17 to be unconstitutional, held that “Necessary protection given under Article 26 of the Constitution of India would be maintained and thereby the transfer of the Archakas would not be permissible unless it is a case of transfer of Archaka of the temple governed by a particular Agama to a temple governed by same Agama”.

The Court clarified that this judgment would not be applicable to those temples which are not constructed as per the Agamas. It also pointed out the grey area as to the identification of the temples constructed as per the Agamas and observed that “while the Apex Court recognized the right of a doctrine or belief guaranteed under Article 26 of the Constitution of India, it left it open for the individual to challenge the appointment of Archakas in the temples which were constructed as per Agamas”. Thus, the Court has issued direction to the State Government to constitute a Five-Member Committee and appointed M. Chockalingam, Retired Judge of the Madras High Court as its Chairperson to identify the temples which were constructed as per Agamas.

[All India Adi Saiva Sivacharyargal Seva Sangam v. State of Tamil Nadu, Writ Petition No 17802 of 2021 decided on 22-08-2022]


Advocates who appeared in this case :

Advocate General. P Valliappan, Advocate, Counsel for the Petitioners;

R. Shanmugasundaram and N.R.R. Arun Natarajan, A.G.Shakeenaa, Advocates, Counsel for the Respondent.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a case of marital discord and petitioner-wife, a practicing advocate was seeking removal of respondent-husband from the matrimonial home, R N Manjula, J. granted protection order and directed the husband to move out of the matrimonial home in the best interest and welfare of the children and to ensure peaceful possession and enjoyment of the petitioner wife in the home in any manner.

The petitioner wife filed an Original Petition for dissolution of marriage against the respondent-husband. During the pendency of matrimonial proceedings, the wife filed an interim application seeking mandatory injunction directing the respondent to move out of the matrimonial home in the best interest and welfare of the children till the disposal of the Original Petition which was partly allowed by the Family Court directing the respondent to not disturb the peaceful possession and enjoyment of the petitioner in the matrimonial home in any manner whatsoever where the petitioner living along with her children, till the disposal of the main petition. Assailing this, the revision petitioner preferred the instant Civil Revision Petition.

The Court noted that instead of giving a supportive hand to the petitioner by being accommodative of her demanding profession, the respondent developed a complaining attitude and found fault with the respondent for being engaged with her work.

Placing reliance on Samir Vidyasagar Bhardwaj v. Nandita Samir Bhardwaj, (2017) 14 SCC 583, the Court noted that if the removal of the husband from home alone is the only way to ensure domestic peace, the courts need to pass such orders irrespective of the fact whether the respondent has or has not another accommodation of his own. If the husband has got alternate accommodation, it is fine that he can be asked to accommodate himself in those alternate premises. If he does not have any other accommodation, it is up to him to secure alternate accommodation.

On the impugned order passed by the Family Court, the Court remarked that “Allowing the respondent to be at the same home but directing him that he should not disturb the other inmates of the home is something impractical. A relief for a person who fears about an impending atom bomb, would be just to remove the bomb from his/her vicinity.”

Thus, the Court observed that when a couple lives under one roof, the conduct of one party to the other is always vital in defining the respect and recognition the family would get from others. If domestic peace is disturbed due to unruly acts of one party, namely the husband, there need not be any hesitation in giving the practical enforcement for the protection order by removing the husband from the house.

The Court modified the impugned order passed by the Family Court and directed the respondent-husband to leave the house where the petitioner and the children live and find alternate accommodation within a period of two weeks from the date of receipt of a copy of the order, failing which, the respondent shall be removed from the matrimonial home with the help of police protection.

[V Anusha v. B Krishnan, CRP (PD) No. 1824 of 2022, decided on 11-08-2022]


Advocates who appeared in this case :

S. P. Arthi, Advocate, for the Petitioner;

D. Suresh Kumar, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: S M Subramaniam, J. observing that it is painful to pen down that the colonial slavery system of extracting household and menial works in the residences of the higher Police officials are still prevailing in the State of Tamil Nadu and is a slap on the Constitution and the Democracy of our great Nation directed that this the slavery system of engaging uniformed Police personnel in the residences of the higher officials must be abolished forthwith.

The writ petition was filed under Article 226, Constitution of India, praying for the issuance of a writ of Certiorari, calling for the records relating to Form-C dated 07-01-2014 issued under Rule 8, Tamil Nadu Public Premises (Eviction of Unauthorized Occupants) Rules, 1978 by the Respondent 3 herein.

Director General of Police, Tamil Nadu issued a memorandum dated 05-08-2022, instructing the Police officials to strictly follow the Government Orders and the interim orders passed by the High Court against the usage of Police personnel for household work consequent to which it was informed to the Court that 19 Police personnel were withdrawn and put on regular departmental duties.

The Court noted that it is aware that large number of uniformed Police personnel are still performing household and menial works in the residences of the higher Police officials and the instructions issued by the Government dated 16-06-2022, have not been followed scrupulously by the Police department.

The Court further noted that mere communication and inter-departmental communications are insufficient, and implementation of the Government orders is of paramount importance. Once the Government has issued an order, it is needless to state that the Police department has to follow it scrupulously, failing which, they are liable to be prosecuted under the Service Rules.

The Court observed that such uniformed trained Police personnel are performing the household and menial jobs in the residences of the higher officials at the cost of the taxpayers’ funds. The public has a right to question the mindset of the higher officials.

The court remarked the Government of Tamil Nadu, pursuant to the Nationwide decision taken in the Hon’ble Chief Minister’s conference, abolished the Orderly System on 05-09-1979 in G.O. (Ms.) No.2231 and unfortunately, even after abolition, the practice is in force, despite the fact that the Principal Secretary to Government, Home Department, issued a clear mandate, through his letter dated 16-06-2022, pursuant to the directions of this Court. When the Government Orders are not followed scrupulously in their letter and spirit, an inference is to be drawn that higher Police officials are not functioning under the effective administrative control of the Government.

Pursuant to the memorandum passed by DGP, Tamil Nadu and lapse of about two months, very few uniformed personnel were withdrawn from the household and menial jobs being performed in the residences of the higher Police officials.

The Court opined that the slavery system of engaging uniformed Police personnel in the residences of the higher officials must be abolished forthwith, failing which, this Court will have no option, but to opt for other course of action under the provisions of the Constitution of India.

The Court thus suo motu impleaded Director General of Police, Mylapore, Chennai as a respondent and asked to file an affidavit regarding the complete implementation of the orders of this Court and the order passed by the Principal Secretary to Government, Home Department.

The Court further directs Director General of Police, Tamil Nadu to file a status report/affidavit before the Court on or before 18-08-2022.

[U Manickavel v. State, WP No. 2627 of 2014, decided on 12-08-2022]


Advocates who appeared in this case :

Mr. M. Deivanandam, Advocate, for the Petitioner;

Mr. P. Kumaresan Additional Advocate General Assisted by Mrs. S. Anitha Special Government Pleader, Advocates, for the Respondents.


*Arunima Bose, Editorial Assistant has reported this brief.