Appointments & TransfersNews

President, after consultation with the Chief Justice of India, transfers Justice Vineet Kothari, Judge of the Madras High Court, as a Judge of the Gujarat High Court and to direct him to assume charge of his office in the Gujarat High Court.

ORDER


Ministry of Law and Justice

Case BriefsHigh Courts

Madras High Court: R. Pongiappan, J., addressed the Criminal Original Petition seeking to quash the First Information Report of first respondent police as the same was alleged to be illegal.

The instant petition was filed to quash the FIR. The said FIR was registered for the offences punishable under Sections 294(b), 323, 324, 506(1) and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002.

Petitioner Counsel submitted that petitioner 1 is the husband of the second respondent. Petitioner 1 had filed the original petition under Section 13(1)(1-b) of the Hindu Marriage Act, 1955 to seek dissolution of marriage. The said petition has been pending for commencement of trial.

In view of the above circumstances, to threaten the petitioners, respondent 2 lodged a false complaint and first respondent police without making my enquiry registered a case.

Analysis and Decision

Bench first and foremost referred to the Supreme Court decision on Kamal Shivaji Pokarnekar v. State of Maharashtra, (2019) 14 SCC 350, wherein it was held that:

“5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424. disclosed, there would be no justification for the High Court to interfere.”

Bench on perusal of the facts of the case found that the averments made in the FIR clearly constituted the prima facie case for offences under Sections 294(b), 323, 324, 506(1) and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002,

Court further relied on the Supreme Court decision in CBI v. A. Ravishankar Prasad, (2009) 6 SCC 351, wherein it was held that:

“Inherent powers of High Court under Section 482 CrPC are meant to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. These inherent powers can be exercised in the following category of cases: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. Extraordinary power under Section 482 CrPC should be exercised sparingly and with great care and caution.”

Hence, relying on the above-stated decisions, the Court expressed that:

“…only in the circumstances that registration of case itself is an abuse of process of law, inherent powers can be exercised to prevent abuse of process of law.”

Petitioners in the instant case could not prove that the registration of the FIR was an abuse of process of law, therefore, Criminal Original Petition was dismissed. [Karunamoorthi v. State, 2020 SCC OnLine Mad 6026, decided on 02-12-2020]


Advocates for the parties:

For Petitioners: W. Camyles Gandhi

For Respondent 1: S.Karthikeyan Additional Public Prosecutor

For Respondent 2: K.Vasanthanayagan

Case BriefsHigh Courts

Madras High Court: The Division Bench of N. Kirubakaran and B. Pugalendhi, JJ., while addressing the present matter, expressed that,

If the Government servant is not complying with the orders of the Government, the same can be treated as misconduct or as unbecoming of the Government Servant, warranting initiation of appropriate departmental proceedings against them.

Government constituted an Administrative Reforms Committee under the Chairmanship of Dr Justice A.K. Rajan, Retired Judge of Madras High Court to ensure the corruption-free and transparent administration and certain recommendations of the said Committee were also accepted by the Government.

In the above-stated recommendations, one of the recommendations was with regard to fixing accountability on every Government Servant, at every stage at every level.

It was also noted that even though the Government Order was passed in the year 2010, none of the departments had taken any effective steps to implement the said Government Order.

Every Government Servant is expected to act in accordance with the Acts, Rules and the Government Orders issued by the Government then and there.

If the Secretary Level Officers have not complied with the orders of the Government, how we can expect a common citizen to comply with the orders of the Government.

Further, the Court added that only on Court’s direction, Government had sent reminders to the respective Departments for implementation of the G.O based on the recommendations of the Administrative Reforms Committee. Even thereafter, only a few Departments responded with certain Circulars or some Administrative Instructions in a vague manner without implementing the said Government Order in true letter and spirit.

“Ignorantia legis neminem excusat” – Ignorance of law excuses no one. Even a common man cannot plead that he is ignorant of law of the Government. When that is the position for a common man, what would be the responsibility of the Secretary Level Officers.

High Court observed that if the Government Orders are utterly disobeyed by the Secretary Level Officers in such a manner, then who can be expected to obey the Government Orders.

In view of the above discussion, Bench stated that it expected a positive response from the State Government on the possibility of amending the existing relevant Government Service Rules, for effective implementation of G.O.(Ms)No. 24, Personnel and Administrative Department, dated 17-02-2010 and to report before this Court. [A.P. Suryaprakasam v. State of T.N., 2020 SCC OnLine Mad 5981, decided on 18-12-2020]

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., issued guidelines pertaining to deal with cases wherein accused persons are absconded leading to the pendency of cases in subordinate courts.

Pendency of cases

Petitioners Counsel submitted that an FIR was registered and final report for the same was taken by the lower Court for offence under Sections 147, 148, 341, 302 of Penal Code, 1860. Further, It was stated that since some of the accused persons were absconding, the case was being kept pending for the last 8 years without being committed to the appropriate Court.

Adding to the above, Counsel also stated that the petitioner was aged about 70 years, but no progress in the lower Court took place, instead of splitting up the case, it kept on being adjourned on the ground that the accused persons were not present or that the non-bailable warrant was pending.

Analysis and Decision

Accused Persons Absconding

Court noted the fact that several petitions have been filed before the Court wherein case have been kept pending in light of certain accused persons being absconding and subordinate Courts finding the said issue have been finding the same to be a hurdle while dealing with the cases.

The above-stated issue leads to the pendency of the case.

Hence, the Court found this to be the right time to issue certain guidelines for the Court below to deal with the cases in which accused persons have been absconding.

Criminal Rules of practice and Circular Orders, 1958 provides for dealing with cases where the accused persons have absconded.

Guidelines

Guidelines to be kept in mind while dealing with cases of absconding accused:

  1. Where the Court has issued process for the appearance of an accused and the same could not be served and if the Court is satisfied that the accused is in absconding, the Court may, after having waited for a reasonable time, proceed under Section 82 of the CrPC.
  2. If the case involves a single accused against whom proceedings have been initiated under Section 82 of the Code, the Court shall shift the case from relevant register to the register of long-pending cases.
  3. When there are several accused persons in a case and only some of them have appeared or have been produced before the Court and if the Court is satisfied that the presence of other accused cannot be secured within a reasonable time, having due regard to the right of such of the accused in attendance to have the case against them enquired into or tried without delay, the Court may split up the case if it is satisfied that such splitting up will cause no prejudice either to the prosecution or to the accused in attendance and proceed with the enquiry or trial as regards the accused who are in attendance.
  4. While splitting up the case as referred, the Court shall assign a fresh number to the split-up case relating to the absconding accused and enter the same in the relevant register of the current year.
  5. In a case exclusively triable by Sessions Court, when there are several accused persons and only some of them have appeared or have been produced before the Court, the Magistrate Court shall follow the same procedure mutatis mutandis till the stage of splitting up of case.
  6. Magistrate Court shall thereafter comply with the provisions of Section 207 or Section 208, as the case may be, insofar as the accused in attendance and commit the case to the Court of Session.
  7. Sessions Court shall be reported about the split-up of the case and the Sessions Court shall assign a number to the split-up case, enter the same in the sessions Register and communicate the number to the Magistrate Court forthwith. The Magistrate Court shall also indicate this number in brackets along with the fresh number assigned to the split-up case relating to the absconding accused.
  8. As and when the absconding accused appears and is produced before the Magistrate Court, the Magistrate Court shall comply with clause (vi) and while committing the case to the Court of Session shall indicate the number assigned by the Sessions Court for the split up the case.
  9. Clauses (i) to (vii) above shall apply, as far as may be to cases where an accused person has appeared but has subsequently absconded.
  10. If the accused has absconded after committal of the case, the Sessions Judge shall follow the same procedure under clauses (ii) to (iv).

Practice provisions of Section 299 CrPC

High Court also stressed upon the need to put in practice the provisions of Section 299 CrPC by the trial courts which deals with recording of evidence in the absence of accused.

  • Record the order which proves that the accused has absconded and there is no immediate prospect of his arrest.
  • Depositions of prosecution witnesses may be recorded and attest and file the same in the split-up case for the purpose of furnishing it to the absconded accused as and when they appear.
  • The above-stated deposition can be given in evidence against the accused in any inquiry or trial for the offence with which he is charged, provided that the witness is either dead or he is incapable of giving evidence or his attendance would cause unreasonable delay, expense or inconvenience.[Exception to the principle embodied in Section 33 of Evidence Act.]
  • The evidence which is recorded against an absconded accused can be read when he is apprehended later and tried even if such evidence is not tendered in his presence, on the fulfilment of the above-said conditions.

Supreme Court’s decision in Nirmal Singh v. State of Haryana, (2000) 4 SCC 41 and Jayendra Vishnu v. State of Maharashtra, (2009) 7 SCC 104 were referred.

The above-stated Judgments were referred to as the said decisions provide a very clear picture on the ambit and scope of Section 299 CrPC.

High Court directed the Court below to follow the above guidelines and proceed further immediately to ensure that the accused is committed to the appropriate Court, as expeditiously as possible. [H. Aarun Basha v. State, 2018 SCC OnLine Mad 12845, decided on 19-12-2018]


Advocates who appeared in the instant matter:

For Petitioner: Mr M.Babu Muthu Meeran

For Respondent: Mr M.Mohamed Riyaz, Additional Public Prosecutor

Case BriefsHigh Courts

Madras High Court:  G.R. Swaminathan, J., observed that,

What the government does must inspire the confidence of the people. Every time a custodial death occurs, the legitimacy of the State suffers a big dent.

Factual Matrix

Petitioner a permanent resident belonged to a scheduled caste community. His elder brother fell in love with a relative namely, Punitha and in view of the objection raised by her parents, he started residing elsewhere. Punitha’s family complained as if had been abducted.

Since the elder brother and Punitha could not be traced, petitioner and other members of the family were periodically directed to appear for enquiry before the investigating officer. Further, petitioner alleged that all the family members were subjected to physical abuse.

It was further stated that, local police arrived at the petitioner’s house and several times and had beaten up the petitioner, his youngest brother i.e. Ramesh on the next visit. The younger brother of the petitioner was taken in custody and later he did not return home.

Suicide

Ramesh was found hanging, according to the petitioner he was tortured by the local police and he died as a result.

In order to cover up the crime, police made the above-stated incident appear as if he had committed suicide.

A complaint was registered under Section 174(3) of CrPC.

The petition had been filed seeking a direction to the respondents to exhume the body and conduct a second postmortem.

Court had directed for conducting the second postmortem at the burial itself. The entire second postmortem was also directed to be videographed. Hence, the second post-mortem was done accordingly.

The entire autopsy had been duly videographed and even a statement was made in writing to that effect in the status report, it turned out that what was recorded were only brief clippings.

Custodial Death

It has been stated that a proper videograph was not taken at all and in view of the same petitioner’s counsel insisted that appropriate directions will have to be issued for the future observance and strict compliance in cases of custodial death or where it is alleged that the death is due to police torture.

Bench referred to the Division Bench of this Court in a PIL in WP (MD) No. 78 of 2019, decided on 28-09-2020.

Further, the Court stated that,

“…foundations of any democratic government rest on popular acceptance. Though State primarily functions through its coercive apparatus, its actions must be perceived as proper by the people.”

“A dead person is equally entitled to justice. I would call it posthumous justice.”

Court also observed that, Whenever someone suffers an unnatural death, the circumstances that led to it will have to be unearthed. Otherwise, there would be no closure.

To ensure the above stated, Court issued the following directions:

(i) The Judicial Magistrate conducting the enquiry under Section 176(1)(A) CrPC shall ensure that the family of the deceased or its representatives are given access to see the body both front and back and are also allowed to take video and photos.

(ii) No autopsy shall take place or commence without the next of kin having seen the body. Of course, if the family of the deceased refuses to see the body, even after so being permitted by the concerned Judicial Magistrate conducting the enquiry, the Judicial Magistrate can, in writing, permit the conducting of postmortem.

(iii) The autopsy shall be carried out by a team of two doctors who have a master’s degree in forensic medicine and are attached to a Medical College and Hospital in the State. In other words, what is called forensic autopsy must be conducted.

(iv) The autopsy shall be done by adhering to the norms laid down by the Hon’ble Division Bench in V. Eswaran v. Government of Tamil Nadu, dated 16-04-2019 in W.P. No. 10694 of 2019 and in W.P.(MD)No. 78 of 2019, dated 28-09-2020.

(v) The whole body shall be x-rayed in order to find out if there are any fractures. The entire autopsy should be videographed from the start of the examination till its completion by adhering to the following six phases set out in Modi ‘a Textbook of Medical Jurisprudence and Toxicology’ 26th Edition edited by Justice K.Kannan.

vi) The autopsy report should be prepared expeditiously and handed over to the investigating officer in the case so that the filing of the final report is not delayed. A copy of the autopsy report as well as video should be simultaneously given to the legal heir or representatives of the family of the deceased. This alone will enable them to take recourse to legal remedies immediately. 

If after receipt of the autopsy report, the legal heir/representatives of the deceased family give in writing that they intend to move the High Court, the body shall be preserved in the mortuary for at least 48 hours. If the body is disposed of either by cremation or otherwise in the meanwhile, the very purpose of holding a second post-mortem will be rendered infructuous.

While parting with the decision, Court stated that:

All of us know that hasty cremation in the tragic Hathras gang rape case led to controversy. It is in the interest of the police to take the family of the deceased into confidence and avoid rushing things through. They are stakeholders in the process and the police have to treat them accordingly.

Court allowed the petition with the aforesaid directions. [Santhosh v. District Collector, Madurai District; 2020 SCC OnLine Mad 5541, decided on 02-12-2020]

Case BriefsHigh Courts

Madras High Court: The Division Bench of N. Kirubakaran and B. Pugalendhi, JJ., while addressing the instant matter ordered an Interim direction directing the respondents to restrain the TV channels from telecasting obscene and vulgar programmes and Advertisements.

Telecast of vulgar and obscene programmes and advertisements

The instant petition was filed to seek direction for respondents to take immediate and effective steps including monitoring, prosecution, pre-censorship, etc. against the television channels and cable operators regarding, telecast of vulgar and obscene programmes and advertisements violating the programme code and advertisement code and other penal laws etc., and create adequate and easily accessible effective complaint Redressal Mechanism for lodging complaint and immediate redressal regarding telecast of vulgar and obscene programmes and advertisements in television.

Bench was shocked to note that in the television, about 10 p.m. all the television channels telecast some advertisements, which exhibit obscenity to promote the sale of condoms, which in fact, are being viewed irrespective of the age and absolutely available in all television channels.

Anybody who sees these programmes will be shocked by the pornographic content.

Nudity is exhibited in advertisements, which is punishable under Section 16 of the Cable Television Network (Regulation) Act, 1995. Firther, it was also stated that. as per Rule 7(1) of the Cable Television Network Rules, 1994, the programmes telecast should not offend “morality”, “decency” and “religious susceptibilities” of the subscribers.

As per Rule 7(2) (vi), the Cable Operators shall ensure that the portrayal of the female form, in the programmes carried in cable service is tasteful and aesthetic and is within the well established norms of good taste and decency.

However, in the programmes/advertisements, which are telecasted in the television in the name of selling condoms and aphrodisiacs, inner wears are in violation of the Cable Television Network Rules, 1994.

Minds of Youngsters and Children

Nudity is available in the name of Doctor’s advice as well as advertisements and it is freely available and is being viewed by all including the children.

Interest of justice requires to issue a direction as prayed for and also to safeguard the children and women, therefore interim direction restraining the telecast of vulgar and obscene programmes and advertisements violating the programme code and advertisement code and other penal laws etc., has been ordered.

Ministry of Information and Bradcasting gave it’s response as follows:

“…all programmes and advertisements telecast on private satellite TV Channels should be in conformity with the prescribed Programme and Advertising Codes enshrined under the said Act and the Rules thereunder, which contain a whole range of parameters to regulate programmes and advertisements. Appropriate action is taken as and when violation of said Codes is established.”

Court observed that there is no censorship for the advertisements and programmes which are being telecasted on Satellite TV Channels.

In view of the said, respondents should answer on the censorship of programmes telecast of satellite TV channels as contemplated under Section 5(A) of the Cinematographic Act 1952.[K.S. Sagadevaraja v. Secy., Ministry of Information and Broadcasting; WP (MD) No. 16087 of 2020, decided on 11-11-2020]

Appointments & TransfersNews

Appointments

President appoints the following as the Additional Judges of the Madras High Court:

(1) Govindarajulu Chandrasekharan,

(2) A.A. Nakkiran,

(3) Veerasamy Sivagnanam,

(4) Ganesan Ilangovan,

(5) Smt. Ananthi Subramanian,

(6) Kannammal Shanmuga Sundaram

(7) Sathi Kumar Sukumara Kurup

(8) Murali Shankar Kuppuraju

(9) Miss Manjula Ramaraju Nalliah

(10) Thamilselvi T. Valayapalayam

The appointment of S/Shri (1) Govindarajulu Chandrasekharan,  (2) A.A. Nakkiran,  (3) Veerasamy Sivagnanam, and (4) Ganesan Ilangovan would be for a period of two years with effect from the date they assume charge of their respective offices.

However, the period of appointment of Smt. Ananthi Subramanian would be with effect from the date she assumes charge of her office till 30-07-2022.

The appointment of S/Shri Sathi Kumar Sukumara Kurup, Murali Shankar Kuppuraju, Miss Manjula Ramaraju Nalliah, and Smt. Thamilselvi T. Valayapalayam, would be for a period of two years with effect from the date they assume charge of their respective offices.

However, the period of appointment of Smt. Kannammal Shanmuga Sundaram, would be with effect from the date she assumes charge of her office till 19-07-2022.


Ministry of Law and Justice

[Notification dt. 01-12-2020]

Case BriefsSupreme Court

Supreme Court: In a case where the Madras High Court dismissed a writ petition without deciding the validity of Section 40(a)(iib) of the Income Tax Act on the ground that the matter is still sub judice before the Income Tax Authority, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah*, JJ has held

“When the vires of Section 40(a)(iib) of the Income Tax Act were challenged, which can be decided by the High Court alone in exercise of powers under Article 226 of the Constitution of India, the High Court ought to have decided the issue with regard to vires of Section 40(a)(iib) on merits, irrespective of the fact whether the matter was sub judice before the Income Tax Authority. Vires of a relevant provision goes to the root of the matter.”


Background


In the present case, a show cause notice was issued for the Assessment Year 2017-stating that the VAT expense levied on the appellant is an exclusive levy by the State Government and therefore squarely covered by Section 40(a)(iib) of the Income Tax Act and therefore VAT expenditure is not allowable as deduction in accordance with Section 40(a)(iib) of the Income Tax Act, while computing the income of the appellant.

The appellant had argued that the amount which is deductible in computing the income chargeable in terms of the Income Tax Act is not being allowed under the garb of the aforesaid provision and that

“ (…) the said provision is discriminatory and violative of Article 14 of the Constitution of India, inasmuch as there are many Central Government undertakings which have not been subjected to any such computation of income tax and are enjoying exemption.”

The High Court dismissed the said writ petition without deciding the validity of Section 40(a)(iib) of the Income Tax Act by observing that the issue of raising a challenge to the vires of the provision at this stage need not be entertained as the matter is still sub judice before the Income Tax Authority, even though it is open to the aggrieved party to question the same at the appropriate moment.


What the Supreme Court Said


Once the show cause notice was issued by the assessing officer calling upon the appellant – assessee to show cause why the VAT expenditure is not allowable as deduction in accordance with Section 40(a)(iib) of the Income Tax Act, while computing the income of the appellant, it can be said that the cause of action has arisen for the appellant to challenge the vires of Section 40(a)(iib) of the Income Tax Act and the appellant may not have to wait till the assessment proceedings before the Income Tax Authority are finalised.

“The stage at which the appellant approached the High Court and challenged the vires of Section 40(a)(iib) of the Income Tax Act can be said to be an appropriate moment.”

Therefore, it was held that the High Court ought to have decided the issue with respect to the challenge to the vires of Section 40(a)(iib) of the Income Tax Act on merit and has failed to exercise the powers vested in it under Article 226 of the Constitution of India by not doing so.

The Court, hence, without expressing any opinion on merits with respect to legality and validity of Section 40(a)(iib) of the Income Tax Act, remanded matter to the High Court.

[Tamil Nadu State Marketing Corporation v. Union of India,  2020 SCC OnLine SC 953, decided on 25.11.2020]


*Justice MR Shah has penned this judgment 

For appellant: Senior Advocate Rakesh Dwivedi

For Union of India: Additional Solicitor General K.M. Natraj

Case BriefsHigh Courts

Madras High Court: The Division Bench of N. Kirubakaran and B. Pugalendhi, JJ., addressed a matter wherein it was stated that the law students in order to escape from the police have been using the Advocate Stickers on their vehicles.

Counsel, M. Subash Babu took note on behalf of the Chairman, Bar Council of India, New Delhi and Nirajan S. Kumar, Counsel took notice of the Chairman, Bar Council of Tamil Nadu and Puducherry.

Petitioner’s Counsel alleged that the students who have been studying in the Law Colleges are using Advocate stickers by sticking them in their vehicles in order to escape from the police.

Adding to the above, many instances have been reported in the newspapers, in which goondas have missed the Advocate stickers while carrying the contrabands as well as for criminal activities.

Bench directed respondents to answer the following:

Whether the Advocate sticker is legally authorized and whether it has got legal sanction and why not this Court bans the Advocate sticker as it is being used for criminal activities by sticking it in the vehicles in order to intimidate the Police and escape from the cluthes of law.

[V. Ramesh v. Vice-Chancellor, Dr Ambedkar Law University,  2020 SCC OnLine Mad 5519, decided on 11-11-2020]

Case BriefsHigh Courts

Madras High Court: B. Pugalendhi, J., while partly allowing the appeal modified the offence to fall under Section 354 of the Penal Code 1860 from Section 377 IPC.

The instant appeal was filed against the conviction and sentence imposed on the appellant.

Trial Court found the appellant not guilty for the offence under Section 376 of Penal Code, 1860 but found him to be guilty for the offence under Section 377 IPC.

Appellant filed the instant appeal against the trial court’s decision.

Prosecutions’ Case

Victim who has been stated to be partially deaf and completely dumb was aged 37 years at the time of occurrence and also unmarried.

While the victim was taking bath in the pump set, the accused went behind and hugged her with an intention to commit rape.

Analysis

Though the accused attempted to rape the victim girl, she escaped from such an attempt.

Considering the evidence of the Doctor [PW8] that there was no external injury, other than the injury noted in the shoulder of the victim and also considering the evidence of the Doctor [PW8] and the certificate issued by the Doctor, this Court opined that the said act of the appellant would fall under Section 354 IPC and not under Section 377 IPC.

Bench noted that no material on record was placed to show that the accused had committed an unnatural offence.

PW4 an innocent victim thwarted on the accused, the moment he hugged her from back and therefore, she did not suffer any injury on her private parts.

“Section 375 IPC: Rape

A man is said to commit ‘rape’ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—

First — Against her will.

Secondly — Without her consent.

Thirdly — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly — With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly — With or without her consent, when she is under sixteen years of age.”

Section 377 IPC deals with the unnatural offence.

In accordance with the medical evidence, the victim girl suffered an abrasion on her shoulder in the scuffle to protect her from the accused, but no injury on her private parts was caused.

In view of the above, the question for consideration was whether the said act of the accused would amount to the commission of offence under Section 377 or 375 IPC or will it fall under Section 354 IPC?

Court held that the overt act attributed as against the accused does not fall under the ingredients for the offence under Sections 375 or 377 IPC. Whereas, the appellant attempted to outrage the modesty of the victim, who is partially deaf and dumb.

Section 354 IPC: Assault or criminal force to woman with intent to outrage her modesty

“Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

In view of the above position, Supreme Court’s decision in Aman Kumar v. State of Haryana, (2004) 4 SCC 379 was referred.

Supreme Court’s decision in Tarkeshwar Sahu v. State of Bihar (Now Jharkhand), (2006) SCC 8 560 was referred in regard to the issue that in the absence of charge under any other section, whether the accused should be acquitted or convicted for outraging the modesty of a woman. In this decision of the Supreme Court, Section 222 of the CrPC was invoked, which provides that in a case where the accused is charged with a major offence and the said charge is not proved, the accused may be convicted of the minor offence, though he was not charged with it.

In the present case, Court states that though the appellant was prosecuted for the offence under Section 376 IPC, he was convicted and sentenced for the offence under Section 377 IPC.

In view of the occurrence of the incident, the Court held that the said act of the appellant as discussed above would fall under Section 354 IPC.

Hence the appeal was partly allowed. [Vairamuthu v. State, Crl. A (MD) No. 357 of 2015, decided on 01-10-2020]

Case BriefsHigh Courts

Madras High Court: G.K. Ilathiraiyan, J., while addressing the instant matter, observed that, a person who is inducted as the Non-Executive Director of an accused company and not responsible for the day-to-day affairs of the company, he/she cannot be vicariously liable for the offence committed by the company.

Petitioners Counsel submitted that the petitioner was arrayed as Accused 3 on the complaint filed by the respondents for the offences punishable under Section 138 of Negotiable Instruments Act, 1881.

Magistrate took cognizance as against the petitioner when there was absolutely no specific allegation against the petitioner to attract the offences under Section 141 of NI Act and issued summon without application of mind.

Petitioner being merely Director of the company was not liable to be prosecuted for the offences under Section 141 of NI Act.

Further, it was stated that the respondent cannot presume every Director knows about the transaction while fastening criminal liability as against the Director of the Company.

To attract the offences under Section 141 of NI Act as against the petitioner, the complainant should have specifically averred in the complaint that at the time of offence the petitioner was in charge of and responsible for the conduct and the business of the company.

Adding to its contention, it was also stated that if a person who was in charge of the day to day management of the company or by stating that he / she was in charge of affairs of the company cannot be vicariously made liable under Section 141(1) of NI Act.

Counsel for the petitioner Nithyaesh Natraj and Counsel for the respondent R. Prasanna Vineeth Durai.

Dishonour of Cheque

On the Complaint lodged, in total there were 4 accused of the offences punishable under Sections 138 and 141 of NI Act. It was alleged that the accused persons had already availed term loan from the complainant to the tune of Rs 65 lakhs. Accused towards partial discharge of their liability issued eight cheques in favour of the respondent but the same were returned dishonoured on being presented for the reason “account closed”.

Respondent after serving statutory notice under Section 138 of NI Act, initiated proceedings for the offences punishable under Sections 138 and 141 of NI Act against the accused persons.

Respondent made allegation foisting liability on the petitioner in the complaint as follows:

“the second accused being the Managing Director and the third accused being one of the Director who are respectively in charge of the managing all such business activities of the first accused company and also running the day to day affairs naturally aware about their liability”.

Analysis and Decision

Bench stated that Section 141 of the NI Act does not make all the Directors liable for the offence. The person sought to be made liable should be in charge and responsible for the conduct of the business of the company at the relevant time.

Therefore, it was stated that there is no deemed liability of the Director in such case.

Several Supreme Court decisions have held that the complaint has to specifically say as to how and in what manner Director was responsible for the conduct of the business of the company.

Court held that unfortunately, in the impugned complaint, the allegation did not satisfy the requirements of Section 141 of the NI Act.

Further, on perusal of the complaint, Court observed that the petitioner was inducted as the Non-Executive Director of the first accused company, therefore the petitioner was not responsible for the day to day affairs of the company and hence cannot be made liable vicariously for the offence committed by the company.

Therefore, the Court, in order to secure ends of justice, opined to necessarily interfere with the proceedings in exercise of its jurisdiction under Section 482 of CrPC.

Hence, the Criminal Original Petitions were allowed and the proceedings on the file of Metropolitan Magistrate were ordered to be quashed as far as the petitioner was concerned, whereas, for other accused, the trial court has been directed to complete the trial. [Vijaya Arun v. New Link Overseas Finance Ltd., Crl. OP Nos. 5, 8 & 11 of 2020, decided on 18-08-2020]

Case BriefsHigh Courts

Madras High Court: A Division Bench of N. Kirubakaran and B. Pugalendhi, JJ., said that a Constitutional Authority has to take a decision, if a Bill is presented for assent, as soon as possible. It was also stated that the protection under Article 361 of the Constitution has been given by the Framers of the Constitution, with hope and trust in the Appointees that they would perform their constitutional functioning promptly.

The High Court was hearing a petition seeking direction to the Governor to take a decision with regard to “The Tamil Nadu Admission to Under Graduate Courses in Medicines, Dentistry, Indian Medicine and Homeopathy on preferential basis to the Students of the Government Schools Bill, 2020” pending before him for assent. The Advocate General submitted before to the Court that the Constitutional Authority is in need of three to four weeks time to take a decision with regard to the Bill. It was noted that the said Bill was passed unanimously on 15-09-2020 and the same was sent for assent to the Constitutional Authority on the very same day, yet the same is pending for last two months.

It was noted by the Court that since the introduction of NEET Examination in the year 2017, so far only 14 students from the Government Schools got admission to the Medical Courses. On High Court’s posing a question with regard to the non-taking of a decision by the Constitutional Authority, the Advocate General referred Article 361(“Protection of President and Governors and Rajpramukhs“) of the Constitution of India and submitted that in the said Article, protection has been given that the Governor who is not answerable to any Court for exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.

The Court was of the view that no doubt Article 361 gives protection to the Constitutional Authority. However, in the given circumstances, a decision has been taken, taking into consideration the future of the Government School students, who are invariably from marginalized and poor sections, as soon as possible as provided under Article 200 of the Constitution of India.

Article 200 of the Constitution of India :

200. Assent to Bills.—When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:

Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom:

Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.

The High Court stated that, “A perusal of Article 200 – ‘Assent to Bills’, would reveal that the Constitutional Authority has to take a decision, if a Bill is presented for assent, as soon as possible.

It was also said that the protection under Article 361 “has been given by the Framers of the Constitution, with hope and trust in the Appointees that they would perform their constitutional functioning promptly and there would not be any situation, wherein they would be called for to give an explanation or they will be questioned by the Court of law.

In view of the above, the High Court concluded that, when the situation changes and present kind of situation arises, a different approach has to be taken by the Courts in the interest of the public. It is well-settled law that “Extraordinary situation requires extraordinary remedies”. When public interest requires, the High Court has to do its constitutional duties and to address the situation. However, the Court was of the opinion that such a situation would not arise to pass any order in the present matter. [S. Ramakrishnan v. State of T.N., 2020 SCC OnLine Mad 5207, decided on 29-10-2020]

Case BriefsHigh Courts

Madras High Court: B. Pugalendhi, J., while refusing to recuse from the present case reminded himself of the harsh criticism of Justice V.R. Krishna Iyer.

Justice V.R. Krishna Iyer had addressed a letter to His Excellency the Governor of Kerala as well as the Chief Justice of Kerala High Court, on the recusal of three Judges of the Kerala High Court from hearing an appeal, stated that every Judge is obliged by his oath of his office to hear every case posted before him and do justice and that not to hear a case or decline to do justice is breach of the solemn obligation vested in them. In fact, His Lordship has also opined that such recusal should invite impeachment by Parliament or dismissal by the President.

Present criminal appeals were filed by the State against the Judicial Magistrates’ Order under Section 256 of Criminal Procedure Code, 1973.

Magistrate had dismissed the District Collector’s complaint about his non-appearance under Section 256 Criminal Procedure Code, 1973 and acquitted the respondents/accused from the charges under Section 4(1-A) read with 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957.

Further complaints were also filed to confiscate the multicolour granite block seized from the accused’s land and dispose of the same.

Aggrieved in view of the above, State preferred the criminal appeals.

Certain observations that were made by the Magistrate:

  • Anshul Mishra, I.A.S, the then-District Collector who had filed the complaints in his official duty as the District Collector was on the date of complaint he was not the District Collector and hence committed the offence under Sections 181, 182, 193 and 199 of Penal Code, 1860.
  • Special Public Prosecutors also aided the complainant in the said offence.

In view of the above observations, Anshul Mishra, I.A.S, the then-District Collector filed the Crl. OP (MD) Nos. 7655 & 7656 of 2016 to expunge the remarks made against him.

Grievance

Petitioner stated that on receiving the complaints in regard to illegal mining, transportation and storage of minerals, he formed a special team to conduct a comprehensive, scientific, systematic inspection in all the granite quarries in Madurai.

Based on the special teams report District Collector took action in accordance with the Mines and Minerals (Development and Regulation) Act, by filing the complaints before the competent Court under Section 200 CrPC read with Section 22 of the Mines and Minerals (Development and Regulation) Act.

Analysis

“Nowadays, if anybody, reminds the duty, they are viewed differently. As an individual person, everybody expects their servants to be loyal and sincere to them, but, at the same time, if the Government servant does his duty sincerely and diligently, it is viewed in a different manner, as a sin. This is how our values have evolved.”

Respondents / Accused have pressurised this Court to get away from the cases.

Bench stated that,

“…though the respondents / accused pointed out in their complaint that as a Government Counsel I appeared against these respondents / accused in certain proceedings for more than 200 occasions, they did not point out any single instance, where I misled or wrongly projected the case of the respondents / accused, in those proceedings.”

Judicial Independence

Court added that “Judicial Independence” is defined as a pre-requisite to the rule of law and a fundamental guarantee of fair proceedings.

A Judge shall exercise the judicial function independently on the basis of the Judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.

In the Supreme Court’s decision of Trishala v. M.V. Sundar Raj, (2010) 15 SCC 714, it was held that simply because the Judge whilst at the Bar was a Standing Counsel for the Municipal Corporation, it cannot be held that he is precluded either in law or on propriety from hearing any case in which a Corporator is a party in his personal capacity; more so, when the relevant facts were not brought to his notice.

Order of Acquittal

In the present matter, with no complicated legal issue, appeals have been pending for 3 years, respondents/accused are enjoying the acquittal for 3 years even without a trial and they may intent to retain this favourable order of acquittal for some more time. But the Advocates, being the Officers of the Court, owe certain duties not only to their clients, but also to the Court.

Mud on the Judge

The Advocates before throwing mud on the Judge must realise that by doing so, they are attacking themselves and the Institution. As a Judge and an Advocate, we command certain respect and privileges in the society and the same is derived from this Institution and its judgment.

Non-Appearance of Complainant

Appeals are arising out of an order passed under Section 256 CrPC for the non-appearance of the complainant. The grievance of the State in the appeals is without providing an opportunity to adduce evidence, the learned Judicial Magistrate adopted a shortcut method to acquit the accused.

“The parties, who are enjoying favourable orders, will not come forward to proceed with the case and the other side are the ultimate sufferer.”

“District Collector/petitioner in Criminal Original Petitions is vindicated for having discharged his duty diligently. He is waiting for justice for the past four years. But the petitions could not be taken up for hearing, one way or the other. “

Judicial Magistrate’s Order has not followed the basic principles in deciding the issue.

Court added that, most of the Government servants lose their sincerity since their salary is assured, even if they do not work. At present, very few officials are working with honesty, integrity and sincerity and even those officers are afraid of the consequences and avoid their duties.

Illegal Mining Activities

Object for which the amendments were made in the Mines and Minerals (Development and Regulation) Act, by introducing the provisions under Sections 4(1A), 21, 21(4A) and 23(C) by Act 38 of 1999 is only to curb the rampant illegal mining activities.

Bench stated that,

The Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011, was framed by the State only on the powers conferred under Section 23(C) and it cannot override the provisions under Section 4(1-A), 21 and 21(4-A) of the Act.

Hence, the Judicial Magistrates’ order referring the provisions under the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011, when the complaint itself was filed for taking cognizance under the Mines and Minerals (Development and Regulation) Act, was not proper.

In view of the above, the impugned order cannot be maintained.

“Condemnation of the petitioner without giving him an opportunity of being heard was a complete negation of the fundamental principle of natural justice.”

The following directions were passed by the Court:

  • Matter to be remitted back to the trial court.
  • Observations made by the Judicial Magistrate as against the District Collector and Special Public Prosecutors stand expunged.
  • District Collector shall appear before the trial court within a period of 2 months.

Before parting, Court expressed with pain that even for answering 1+1= 2, at times, it has to explain in detail. [Anshul Mishra v. District Collector, 2020 SCC OnLine Mad 1725, decided on 12-08-2020]

Case BriefsHigh Courts

Madras High Court: Abdul Quddhose, J., partly allowed an appeal that had been filed by the claimants seeking enhancement of compensation granted by the Motor Accident Claims Tribunal.

The Motor Accident Claims Tribunal under the impugned Award had directed the respondents to pay the Appellants/claimants a compensation of Rs 5,10,200 together with interest and cost for the death of Venkatesh as a result of an accident caused by a vehicle owned by the first respondent and insured with the second respondent. In the claim petition, the claimants had pleaded that the deceased was aged 28 years and was a businessman earning Rs 10,000 per month at the time of the accident but no documentary evidence was produced in support of the monthly income of the deceased, the Tribunal under the impugned Award had fixed the monthly income of the deceased on notional basis at Rs 3,300.

The Court while partly allowing the appeal enhanced the compensation stating Tribunal ought to have given due consideration to the year of the accident which happened in the year 2004 before assessing the notional monthly income of the deceased making it 4,500. Further, the Court relying on the Supreme Court judgment of National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 stated that the Tribunal had not awarded any compensation towards loss of future prospects and loss of estate which the Appellants/claimants were legally entitled, it further reduced the deduction of personal expenses to 1/4th from 1/3rd calling it erroneous, further increasing the loss of consortium and funeral expenses in accordance with the judgment. Lastly, relying on the Supreme Court judgment of Sarla Verma v. DTC, (2009) 6 SCC 121 the Court held that Tribunal had erroneously adopted 18 multiplier instead of 17 while calculating the loss of dependency as correct multiplier to be adopted for a person aged 28 years was 17 multiplier and not 18. The Court however removed the compensation towards loss of love and affection to the Appellants/claimants which they were not entitled to as seen from the evidence available on record. The compensation awarded by the Tribunal under the impugned Award thus was enhanced from Rs 5,10,200 to Rs 10,33,900. [Lakshmi v. S. Rajashekar, 2020 SCC OnLine Mad 2647, decided on 29-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Appointments & TransfersNews

Supreme Court Collegium

Supreme Court Collegium on 23-09-2020, approved the proposal for elevation of the following Judicial Officers, as Judges of the Madras High Court:

1. Shri G. Chandrasekharan,

2. Shri A.A. Nakkiran,

3. Shri Sivagnanam Veerasamy,

4. Shri Ilangovan Ganesan, and

5. Smt. Ananthi Subramanian.

6. Smt. Kannammal Shanmuga Sundaram,

7. Shri Sathikumar Sukumara Kurup,

8. Shri Murali Shankar Kuppuraju,

9. Ms. Manjula Ramaraju Nalliah, and

10. Smt. Thamilselvi T. Valayapalayam.

COLLEGIUM STATEMENT

COLLEGIUM STATEMENT


Supreme Court of India

[Collegium Statement dt. 23-09-2020]

COVID 19Hot Off The PressNews

Physical Court Hearing

Administrative Committee of the Madras High Court has decided to open physical court hearing partially with 6 Division Benches at Principal Seat at Madras and 2 Division Benches at Madurai, with a combination of the physical court hearing and virtual court hearing with effect from 07-09-2020.

Overcrowding of the Courts

Physical Court Hearing of three Division Benches in Principal Seat at Madras will be pre-lunch session and Three Division Benches in the post-lunch session in order to avoid overcrowding in Courts.

Virtual Court Hearings will be alternatively conducted for the rest of the day.

Benches would be functioning for half a day through the physical court hearing and for the next half a day through a virtual court hearing, so as to facilitate the lawyers of both categories, who opt for physical court or virtual court hearings.

Trial Basis

The above-stated categories will be adopted on a trial basis in order to assess the feasibility of the running of physical court hearings, which can be suitably varied after observing the functioning of the Courts in this manner for two weeks.

Other respective Benches will continue to function through virtual court hearing as before, subject to any modification to be announced upon a decision to be taken by the High Court in the future.

Read the notification here: NOTIFICATION


Madras High Court

[Notification dt. 29-08-2020]

Fact ChecksNews

In a Whatsapp forward circulating alongwith screenshots of a newspaper article, social media in Tamil Nadu is abuzz with the news that Madras High Court has ordered landlords not to collect rent for the months of April, May and June.

The screenshots of the four messages are given below:

If we look at the third image, mischievously certain words have been underlined to give the impression that Madras High Court has waived off rent for 3 months. However this is not the case. In reality, a Public Interest Litigation has been filed in the Court to waive off rent for these months of the Lockdown. The Court has issued notice to the government to reply to the PIL filed. No order has been issued by the Court and the matter is still subjudice.

The plea was moved by the petitioner Advocate LK Charles Alexander, citing that governments of Maharashtra and Karnataka have deferred rent payments for tenants owing to the Covid crisis. He moved the High Court seeking the state government of Tamil Nadu  to restrain landlords from demanding rent during this period.

The order of the High Court has not yet been uploaded on the Court website therefore we approached the petitioner L.K. Charles Alexander directly, who confirmed to us that the case of LK Charles Alexander vs.The Secretary to Government, Writ Petition No. 8378/2020 was heard on 2nd July, 2020.  The matter was taken up by the division bench of R. Subbiah and Krishnan Ramaswamy, JJ. and they had ordered that two weeks time is given to the government to file an affidavit.

On March 29 and March 30, 2020  the centre and state government of Tamil Nadu had issued orders to defer payment of rent for the month of March however no such decision has been taken until now for the months of April, May and June.

Therefore, we can safely say that the social media message with the maroon background is clearly misleading. No order has been issued by the Courts or the State Government of Tamil Nadu to defer payment of rent and the matter is subjudice. The Court has merely issued a notice to the Government to reply to the PIL.


Nilufer Bhateja, Editorial Assistant has put this story together

COVID 19Hot Off The PressNews

In view of the persisting status of the Corona Virus Pandemic, particularly as reported in the State of Tamil Nadu, and the same is likely to continue for some time in future, Hon’ble the Administrative Committee of the High Court of Madras has resolved to continue the functioning of the High Court and the Subordinate Courts as per the Circular dated 24-3-2020, till 30th April, 2020.


Madras High Court

[Circular dt. 12-04-2020]

Appointments & TransfersNews

Supreme Court Collegium recommends the transfer of Justice Subramonium Prasad, Judge, Madras High Court to Delhi High Court.

He was Elevated as an Additional Judge of the High Court of Madras on 04.06.2018


Supreme Court Collegium

[Collegium Statement dt. 12-02-2020]

Appointments & TransfersNews

Justice Vijaya Kamlesh Tahilramani has tendered her resignation from the office of the Chief Justice of the Madras High Court, in pursuance of proviso (a) to clause (1) of Article 217 of the Constitution, with effect from the afternoon of 06-09-2019.


Ministry of Law and Justice

[Notification dt. 20-09-2019]