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As per the Notification dated 5th May, 2022, Chief Justice of Madras High Court dispensed with wearing of black gown by the Advocates while appearing before the Madras High Court, during Summer Vacations 2022. However, all Advocates shall compulsorily wear a collar band and black coat.
Madras High Court
[Notification No. 111 of 2022]
The Supreme Court Collegium has approved the proposal for the elevation of the following Advocates as Judges in the Delhi High Court:
1. Shri Vikas Mahajan,
2. Shri Tushar Rao Gedela,
3. Ms. Manmeet Pritam Singh Arora,
4. Shri Sachin Datta,
5. Shri Amit Mahajan,
6. Shri Gaurang Kanth, and
7. Shri Saurabh Banerjee.
In a relief to the Anganwadi workers and helpers working tirelessly at the grassroot level, the Supreme Court has held that the Anganwadi Workers and Helpers are employed by the State Government for wages in the establishments to which the Gratuity Act applies, hence, they are entitled to payment of Gratuity.
The Court also observed that the Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers, apart from rendering pre-school education. And for all this, they are being paid very meagre remuneration and paltry benefits.
Therefore, it is high time that the Central Government and State Governments take serious note of the plight of Anganwadi Workers/Helpers who are expected to render such important services to the society.
In a case where an employee had produced a fake certificate for seeking employment, the Supreme Court has held that producing the false/fake certificate is a grave misconduct and dismissal of service is a justified punishment in such cases.
In the case at hand, while the disciplinary authority had imposed a punishment of dismissal from service on the delinquent, the Bombay High Court had directed reinstatement of the respondent without any back wages and other benefits.
The Supreme Court, however, agreed with the disciplinary authority’s decision and observed:
“The question is one of a TRUST. How can an employee who has produced a fake and forged marksheet/certificate, that too, at the initial stage of appointment be trusted by the employer? Whether such a certificate was material or not and/or had any bearing on the employment or not is immaterial. The question is not of having an intention or mens rea. The question is producing the fake/forged certificate.”
In a long drawn battle between Life Insurance Corporation of India (LIC) and its temporary/badli/part-time employees over claim for absorption, a 3-judge bench of Supreme Court has appointed a two-member committee to carry out fresh verification of the claims of workers who were working between 20 May 1985 and 4 March 1991 and who claim to have been employed for at least 70 days in Class IV posts over a period of three years or 85 days in Class III posts over a period of two years shall be carried out.
Finding the report of the previous committee faulty, the Supreme Court observed,
“A public employer such as LIC cannot be directed to carry out a mass absorption of over 11,000 workers on such flawed premises without following a recruitment process which is consistent with the principles of equality of opportunity governed by Articles 14 and 16 of the Constitution. Such an absorption would provide the very back-door entry, which negates the principle of equal opportunity and fairness in public employment.”
Read all about the newly formed committee and its tasks and timelines on the SCC Online Blog.
Stating that two-finger test cannot be permitted to be continued, the Division Bench of Madras High Court directed the State Government to ban the practice of two-finger test on victims of sexual offences by the medical professionals.
Court observed that,
“…it is necessary for us to put an end to the practice of the two-finger test. We find that the two-finger test is being used in cases involving sexual offences particularly, on minor victims.”
In a matter wherein an Advocate alleged that the Court was giving priority to certain matters and to certain advocates, the Court observed that an advocate as an Officer of the Court is under an obligation to maintain the dignity and decorum of the Court. There is no room for arrogance and there is no license to intimidate the Court, make reckless accusations and allegations against a Judge and pollute the very fountain of justice.
Bench also expressed that, “It has to be borne in mind that casting scurrilous aspersions not only has the inevitable effect of undermining the confidence of the public in the judiciary but also has the tendency to interfere with the administration of justice.”
Stating that, “Great power comes with greater responsibility”, the Division Bench of Bombay HC expressed that, the expectation of responsible behaviour or responsible conduct from those persons who are active in public life cannot be an extra expectation but would be a basic one.
High Court stated that the declaration of the petitioners that they would recite religious verses either in the personal residence of another person or even at a public place is firstly, encroachment upon another person’s personal liberty and secondly, if a declaration is made with particular religious verses would be recited on the public street, the State government is justified in carrying an apprehension that such act would result in disturbance of law and Order.
Expressing that, attempts to circumvent or undermine judicial decisions need to be viewed seriously in order to ensure that the functioning of our country is unhindered, especially during turbulent times, Delhi High Court held that,
“It is only the rule of law which not only cements the civilised functioning of a country, but also drives a country towards progress and development.”
With regard to contempt, the Court observed that,
“The underlying purpose of the law of contempt is meant to serve public interest and build confidence in the judicial process. This flows from how the functioning of a democratic society is sustained by the rule of law and wilful violation of the same would enable anarchy.”
The International Financial Services Centres Authority (IFSCA) has issued a detailed “Framework for FinTech Entity in the IFSCs” in order to develop and regulate financial products, financial services and financial institutions in the International Financial Services Centres (IFSC) and to encourage promotion of financial technologies (‘FinTech’) across the spectrum of banking, insurance, securities, and fund management in IFS.
The Securities and Exchange Board of India has issued the Securities and Exchange Board of India (Custodian) (Amendment) Regulations, 2022 to amend Securities and Exchange Board of India (Custodian) Regulations, 1996.
The amendment modifies Regulation 8 dealing with Procedure and grant of certificate and inserts clause (7) to provide that a custodian holding a certificate of registration as on the date of commencement of the Securities and Exchange Board of India (Custodian) (Amendment) Regulations, 2022, may provide custodial services in respect of silver or silver related instruments held by a mutual fund only after taking prior approval of the Board.
On April 21, 2022, the Central Board of Direct Taxes (CBDT) has issued the Income-tax (Ninth Amendment) Rules, 2022 to amend Income-tax Rules, 1962 and introduces Conditions for furnishing return of income by persons referred in section 139 (1) of the Act.
Andhra Pradesh High Court: Cheekathi Manavendranath Roy J. dismissed the criminal petition and granted bail to the accused advocates and denied bail to accused software engineer.
The facts of the case are such that several persons have posted comments in the social media like Facebook, Twitter, YouTube etc., making certain wild and reckless allegations against the High Court and Judges of the High Court and the Judges of the Supreme Court with certain aspersions relating to the Judgments delivered by the Judges of the High Court and thereby that they indulged in the acts of bringing down the image of the judiciary and the High Court in the estimation of the members of the society, about 12 crimes were registered by the C.I.D., Amaravati. A case under Sections 153A, 504, 505(2), 506 of the Indian Penal Code, 1860 and under Section 67 of the Information Technology Act, 2000, was registered against the Petitioners. These three criminal petitions under Section 439 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”), are filed to enlarge the petitioners on bail.
The court observed that both A-18 and A- 19 who are advocates by profession have in writing tendered unconditional apology to the High Court and requested to drop the proceedings against them. The Court has accepted the said apology and closed the contempt proceedings. Additionally, as the major part of investigation relating to the role played by A-18 and A-19 is concerned, has been completed, thus, A-18 and A-19 are entitled to bail.
The Court further observed that as regards the petitioner/A-20 is concerned, he tendering unconditional apology in the contempt proceedings is pending for consideration. The High Court did not accept the same and did not close the contempt proceedings against him. Therefore, he is not similarly placed with A-18 and A-19. Further, the comment that was posted by him in the social media is of serious nature which got effect of bringing down the image of judiciary and the High Court and Judges in the estimation of the members of the society. He being an educated man and Software Engineer is not justified in making such irresponsible comments against the Judiciary and the High Court. Therefore, as his request to accept his apology is still pending before the High Court and as investigation in this case is pending against him, this Court is not inclined to enlarge A-20 on bail at this stage.
The Court thus held “The petitioners, who are A-18 and A-19 are ordered to be enlarged on bail on execution of self bond for Rs.50,000/- (Rupees fifty thousand only) each with two sureties for a like sum each to the satisfaction of IV Additional Junior Civil Judge, Guntur.”
[Gopala Krishna Kalanidhi v. State of Andhra Pradesh, 2022 SCC OnLine AP 419, decided on 25-02-2022]
Delhi High Court issues a circular that, it has come to notice that some of the Advocates/Litigants/Staff/Police & CRPF Personnel are still feeding stray animals like monkeys and dogs within this Court complex.
All the Advocates/Litigants/Staff members/Police & CRPF Personnel of this Court are, therefore, once again directed to strictly refrain from feeding the stray animals like monkeys and dogs within this Court complex.
Delhi High Court
[Circular dt. 28-2-2022]
Supreme Court: Holding Advocates to be officers of the Court, the bench of AM Khanwilkar* and CT Ravikumar, JJ t has held that it would be open to the Chief Metropolitan Magistrate (CMM)/District Magistrate (DM) to appoint an advocate commissioner to assist him/her in execution of the order passed under Section 14(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
The Court was hearing the appeal against the Bombay High Court judgment wherein it was held that that Section 14(1A) of the 2002 Act does not permit the CMM/DM to authorise an advocate. The language used in the provision is amply clear. Such delegation could be done only to an officer subordinate and none else. The High Court rejected the argument that the overburdened CMM/DM had inadequate subordinate staff and it would be difficult, if not virtually impossible for the secured creditor to take possession of and realise the outstanding dues by disposing the secured asset. The High Court was not impressed with that argument and preferred to strictly construe the stated provision.
This issue arose because of the expression used in the said provision, “may authorise any officer subordinate to him”.
Section 14 of the 2002 Act predicates that if the secured creditor intends to take possession of the secured assets, must approach the CMM/DM by way of an application, in writing, and on receipt of such request, the CMM/DM must move into action in right earnest. After passing an order thereon, he/she (CMM/DM) must proceed to take possession of the secured assets and documents relating thereto for being forwarded to the secured creditor in terms of Section 14(1) read with Section 14(2) of the 2002 Act. Section 14(2) is an enabling provision and permits the CMM/DM to take such steps and use force, as may, in his opinion, be necessary. This position obtained even before the amendment of 2013 i.e., insertion of sub-Section (1A) and continues to this date.
Incidentally, along with insertion of sub-Section (1A), a proviso has also been inserted in sub-Section (1) of Section 14 of the 2002 Act whereby the secured creditor (Bank/Financial Institution) is now required to comply certain conditions and to disclose that by way of an application 28 accompanied by affidavit duly affirmed by its authorised officer in that regard. Sub-Section (1A) is in the nature of an explanatory provision and it merely restates the implicit power of the CMM/DM in taking services of any officer subordinate to him. The insertion of sub-Section (1A) is not to invest a new power for the first time in the CMM/DM as such.
Thus, the question to be decided before the Supreme Court was whether the past practice followed by most of the courts across the country in recognising the power of the CMM/DM to appoint an advocate as a commissioner to assist him in merely taking possession of the secured assets and documents relating thereto and to forward the same to the secured creditor, needs to be discontinued as being prohibited owing to insertion of sub-Section (1A)?
At the outset the Court observed that the construct of the provision must depend on the context of the legislative intent and the purpose for which such dispensation has been envisaged. The setting in which the expression has been used in the concerned section of the Act would assume significance.
The Court observed that the statutory obligation enjoined upon the CMM/DM is to immediately move into action after receipt of a written application under Section 14(1) of the 2002 Act from the secured creditor for that purpose. As soon as such application is received, the CMM/DM is expected to pass an order after verification of compliance of all formalities by the secured creditor referred to in the proviso in Section 14(1) of the 2002 Act and after being satisfied in that regard, to take possession of the secured assets and documents relating thereto and to forward the same to the secured creditor at the earliest opportunity. The latter is a ministerial act. It cannot brook delay. Time is of the essence. This is the spirit of the special enactment. However, it is common knowledge that the CMM/DM are provided with limited resources. That inevitably makes it difficult, if not impossible, for the CMM/DM to fulfil his/her obligations with utmost dispatch to uphold the spirit of the special legislation.
“It is common knowledge that in the respective jurisdictions, there is only one CMM/DM. If he is expected to reach at every location himself for taking possession, in some jurisdictions it would be impracticable, if not impossible, for him to do so owing to large number of applications in the given jurisdiction being a commercial city.”
Hence, strict construct would defeat the legislative intent and purpose for enacting the 2002 Act. Indeed, logistical problems of the Office of the CMM/DM cannot be the basis to overlook the statutory provision. However, an advocate is and must be regarded as an officer of the court and subordinate to the CMM/DM for the purposes of Section 14(1A) of the 2002 Act.
The Court, further, held that the Advocate Commissioner is not a new concept. The advocates are appointed as Court Commissioner to perform diverse administrative and ministerial work as per the provisions of Code of Civil Procedure and Code of Criminal Procedure. An advocate is an officer of the court.
“It is well established that an advocate is a guardian of constitutional morality and justice equally with the Judge. He has an important duty as that of a Judge. He bears responsibility towards the society and is expected to act with utmost sincerity and commitment to the cause of justice. He has a duty to the court first. As an officer of the court, he owes allegiance to a higher cause and cannot indulge in consciously misstating the facts or for that matter conceal any material fact within his knowledge.”
The Court, hence, observed that sub-Section (1A) of Section 14 of the 2002 Act is no impediment for the CMM/DM to engage services of an advocate (an officer of the court) — only for taking possession of secured assets and documents relating thereto and to forward the same to the secured creditor in furtherance of the orders passed by the CMM/DM under Section 14(1) of the 2002 Act in that regard.
The Court made clear that it does not follow that the advocate so appointed needs to be on the rolls in the Office of the CMM/DM or in public service. There is intrinsic de jure functional subordinate relationship between the CMM/DM and the advocate being an officer of the court. The apprehension of the borrowers about improper execution of orders of the CMM/DM passed under Section 14(1) of the 2002 Act by the Advocate Commissioner, is plainly misplaced. Further, being an officer of the court and appointed by the CMM/DM, the acts done by the Advocate Commissioner would receive immunity under Section 14(3) of the 2002 Act — as an officer authorised by the CMM/DM.
“There is no reason to assume that the advocate so appointed by the CMM/DM would misuse the task entrusted to him/her and that will not be carried out strictly as per law or it would be a case of abuse of power. Rather, going by the institutional faith or trust reposed on advocates being officers of the court, there must be a presumption that if an advocate is appointed as commissioner for execution of the orders passed by the CMM/DM under Section 14(1) of the 2002 Act, that responsibility and duty will be discharged honestly and in accordance with rules of law.”
[NKGSB Cooperative Bank Limited v. Subir Chakravarty, 2022 SCC OnLine SC 239, decided on 25.02.2022]
Counsels
For Banks: Senior Advocate Rana Mukherjee, and Advocates Viraj Kadam, Manish Shanker Srivastava, Devendra Kumar Singh and M.L. Ganesh,
For Borrowers: Advocate B. Raghunath,
For State of Maharashtra: Advocate Rahul Chitnis
In supersession of this Court’s notice No. 3435/G-11/Genl./DHC dated 18-11-2021, it is notified that the wearing of “Gowns” by Advocates practicing in Delhi High Court has been dispensed with w.e.f. from 2nd March 2022 (Wednesday), till further orders.
Delhi High Court
[Notice dt. 25-2-2022]
Supreme Court Collegium has approved the proposal for the elevation of the following Advocates as Judges in the Madras High Court:
1. Ms. Nidumolu Mala,
2. Shri Sunder Mohan,
3. Shri Kabali Kumaresh Babu,
4. Shri S. Sounthar,
5. Shri Abdul Ghani Abdul Hameed, and
6. Shri R. John Sathyan.
Supreme Court of India
[Collegium Statement dt. 16-2-2022]
Supreme Court Collegium has approved the proposal for elevation of the following Advocates as Judges in the Bombay High Court:
1. Shri Kishore Chandrakant Sant,
2. Shri Valmiki Menezes SA,
3. Shri Kamal Rashmi Khata,
4. Smt. Sharmila Uttamrao Deshmukh,
5. Shri Arun Ramnath Pednekar,
6. Shri Sandeep Vishnupant Marne,
7. Smt. Gauri Vinod Godse,
8. Shri Rajesh Shantaram Patil,
9. Shri Arif Saleh Doctor, and
10. Shri Somasekhar Sundaresan.
[Supreme Court of India]
[Collegium Statement dt. 16-2-2022]
Table of Contents
Editorial………………………………………………………………………………… IX
Advertising in the Era of Social Media Influencers:
A Socio-Legal Analysis of the Indian Digital Landscape
Farah Hayat…………………………………………………………………….. 1
Evaluating Privacy Violations of Facial Recognition Technology in the Backdrop of OECD Privacy Principles
Prerna Sengupta and Riddhi Bang………………………………………….. 22
Privacy, National Security, And Government Interests: The Many Facets of End-to-End Encryption in India
Aditi Singh and Ujjwal Agarwal…………………………………………….. 46
The Crime of Being Obscenely Private on the Internet: Section 67 and 67A of the IT Act, 2000
Mani Munjal and Anuj Nakade……………………………………………… 64
President appoints S/Shri (1) V. Narasingh, (2) Biraja Prasanna Satapathy and (3) Murahari Sri Raman, to be Judges of the Orissa High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.
Ministry of Law and Justice
[Notification dt. 10-2-2022]
President appoints S/Shri (1) Konakanti Sreenivasa Reddy alias Srinivasa Reddy, (2) Gannamaneni Ramakrishna Prasad, (3) Venkateswarlu Nimmagadda, (4) Tarlada Rajasekhar Rao, (5) Satti Subba Reddy, (6) Ravi Cheemalapati, and (7) Smt. Vaddiboyana Sujatha, to be Judges of the Andhra Pradesh High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.
Ministry of Law and Justice
[Notification dt. 10-2-2022]
Table of Contents
Articles
The International Standards for Disciplinary Responsibility of Judges and the National Legislation of Uzbekistan
Sulaymanov Odiljon Rabbimovich…………………………………………… 1
Protection of Elderly: A Historical perspective
Neelam Batra…………………………………………………………………… 8
Impact of National Education Policy 2020 on Legal Education
V.K. Ahuja……………………………………………………………………… 27
The Fundamental Right to Privacy in India vis-à-vis Paparazzi Intrusion: Making a Case for Protecting Celebrities against Unauthorised Paparazzi Intrusion
Kanika Jamwal……………………………………………………………….. 42
Writ of Habeas Corpus Vis A Vis Queer Women: An Analysis
Ishita Sharma………………………………………………………………….. 56
Indian MSME Development Post-2014
Satish Kumar, Shalini Arora & Anil K Pandey…………………………… 64
Top Story
Inherited property of a female Hindu dying issueless and intestate to return to source
In an important ruling on the property of female Hindu, the Supreme Court has held that the property of a female Hindu dying intestate would return to source I.e. if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. However, if she dies leaving behind her husband or any issue, then Section 15(1)(a) of the Hindu Succession Act, 1956 comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.
Supreme Court
In a big relief to the 12 BJP MLAs who were suspended by the Maharashtra Legislative Assembly on 05.07.2021, for a period of 1 year due to “indisciplined and unbecoming behavior resulting in maligning the dignity of the House”, the Supreme Court has held that the suspension beyond the remainder of the concerned (ongoing) Session is unconstitutional, grossly illegal and irrational.
The Court observed that suspension beyond the Session would be bordering on punishing not only the member concerned, but also inevitably impact the legitimate rights of the constituency from where the member had been elected.
The suspended MLAs belong to BJP, the principal Opposition Party in the Maharashtra Legislative Assembly. The Ruling Party is a coalition between the Shiv Sena, the Nationalist Congress Party (NCP) and the Indian National Congress (INC) christened as “Maha Vikas Aghadi”.
On July 5, 2021, 12 BJP MLAs were suspended after the house witnessed heated exchanges between the members of the Opposition Party and the Ruling Party due to an impression formed by the former that the business of the House was being conducted in unilateral manner, with conscious and engineered effort to suppress voice of the Opposition Party.
In an interesting case where one SBI account holder was left with a balance of Rs. 59/- only in his account due to the existence of another bank account with strikingly similar name in the same branch, the Supreme Court has set aside the “highly erroneous” impugned order passed by the National Consumer Disputes Redressal Commission solely relying upon the suo-moto report called for from SBI during the pendency of the revision application.
The Account Holder Sunil Kumar Maity was informed by the bank that his account number has changed. A sum of Rs. 3, 00, 000 was deposited in this new account number. However, a few days later, his passbook showed a balance of Rs. 59 only. Interestingly, this “new” account number belonged one “Sunil Maity” who had withdrawn a sum of Rs. 1 lakh and 2 lakhs on two occasions.
The bank report submitted before the NCDRC indicated that the bank had every reason to believe that wrong account number was intentionally inserted by the appellant himself. Surprised that the NCDRC relied on this report to pass an order in favour of the bank, the Supreme Court observed that “There was no way that the appellant would have known that the second respondent, namely Sunil Maity had an account in the same branch. No sane person would deposit cash or cheque meant to be deposited in his account in an account number belonging to another person with similar name.”
High Court Updates
Can a Kazi adjudicate disputes like a Court and pass an order like a decree?
In a recent ruling, the Madhya Pradesh High Court while entertaining a Public Interest Litigation observed that if a Kazi entertains a dispute and acts as a mediator to settle the dispute between the members of the community that would be permissible, but he cannot adjudicate the dispute like a court and pass an order like a decree.
“…we boast ourselves as an educated society, but we live our lives with double standards”: Allahabad HC condemns prevailing caste system even after 75 years of independence
While condemning the prevailing caste system even after 75 years of independence, Allahabad High Court made a very significant observation in a cold-blooded murder in an alleged honour killing case, that,
Caste system in our society is deep rooted, we boast ourselves as educated society, but we live our lives with double standards. Even after 75 years of Independence we are not able to get out with this social menace. This is pitiable and tragic. It is the moral duty of those sane person, who are well-off, to protect the under-privileged and downtrodden, so that they feel themselves safe, secure and comfortable. Simultaneously, the other group also feel that they are the integral and inseparable part of the society, and it is in the larger interest of the country and high time for the introspection for everyone to give serious thought over the matter.
Can wife claim maintenance under S. 125 CrPC where appeal is pending against divorce granted under S. 13 HMA?
A husband approached the Allahabad High Court claiming that the Family Court could not have granted maintenance to wife under Section 125 CrPC when divorce was already granted in his favour under Section 13 of Hindu Marriage Act.
Allahabad High Court answered to this claim by stating that When a divorce decree under Section 13 of the Hindu Marriage Act is passed the wife of such annulled marriage can claim maintenance under Section 25 of Hindu Marriage Act.
Can a girl be treated as property and given in donation? Bom HC addresses in light of “Daanpatra” executed by father of a daughter
Bombay High Court while addressing a case wherein a father executed Daanpatra to give the minor daughter in donation to a baba observed that A girl is not property that can be donated and further directed the Child welfare committee to ascertain if the child could be declared as a child in need of protection.
High Court made a very pertinent observation in the case which was,
When the girl as per her own statement is minor, then why the father who is in all respect guardian of the girl should give the girl as Daan? A girl is not a property which can be given in donation.
Daughter-in-law who obtains compassionate appointment by stating that she will take responsibility of her mother-in-law is bound by that undertaking
Moving to another very interesting matter from Calcutta High Court, it was noted that a 80 year old widow had approached the Court to seek direction towards her daughter-in-law to provide for her maintenance as she had taken compassionate appointment on the death of her son.
High Court held that the daughter in law was bound by the undertaking by which she had obtained the compassionate appointment.
False invocation of Ss. 354A, 506 IPC merely trivalises offence of sexual harassment casting doubt on veracity of allegations by victim who has in reality faced sexual harassment
Delhi High Court in a recent decision expressed its anguish at how provisions such as Sections 354A/506 IPC are falsely invoked at the drop of a hat to register one’s displeasure at the conduct of another individual.
In this false invocation of sections pertaining to sexual assault case, the Court stated that such instances merely trivalise the offence of sexual harassment and casts a doubt on the veracity of the allegations filed by every other victim who has in reality faced sexual harassment, thereby setting back the cause of women empowerment.
District Court Updates
53-year-old man molested a 9-year-old minor boy by pressing his private parts: Court sentences man under POCSO Act
A Fast Track Court of Thiruvanathapuram addressed a case wherein a minor boy aged 9 years old was sexually assaulted by a 53-year-old man who had squeezed the boy’s private part causing him pain.
In this case, Bench expressed that the accused is a prudent man, well acquainted with the prose and cons of his misdeeds. His attitude shows his scant respect and honour for the legal system and morality. So he is not entitled to get the benevolent provisions of the Probation of Offenders Act, 1958.
In view of the said observation, the accused did not deserve any leniency for the sentence and was imprisoned for 5 years along with Rs 25000 fine.
Husband’s company can have ‘Virat Kohli’ as a brand ambassador, but cannot provide maintenance to wife: Man tried appearing as a pauper? Saket Courts adjudicates
A District Court while addressing a case of maintenance claimed by a wife wherein the husband stated that he was a businessman but had no monthly income and was sustaining himself on charity and borrowing from relatives and friends, found that the husband’s company was one of the manufacturers of brand “too yum” and the brand ambassador of the said brand was ‘Virat Kohli’, hence it looked highly improbable that a company which is running into great losses was in a position to afford a celebrity of such stature for the advertisement of its product.
Court made an observation that “It cannot be believed that a person who was capable of supporting a family by getting married, would all of a sudden become devoid of all sources of income.”
This is indeed is a very interesting case from Saket Court of Delhi.
https://www.scconline.com/blog/post/2022/01/20/maintenance-to-wife/
National Consumer Disputes Redressal Commission
Minor treated for “Measles” instead of “Stevens-Johnson Syndrome” due to wrong diagnosis and leading to medical negligence
Due to doctor’s lack of skill and reasonable standard of care a minor was wrongly treated due to wrong diagnosis.
In an unfortunate case of medical negligence, wherein an Ayurveda Doctor gave wrong treatment to a child i.e. gave the treatment of Measles instead of Steven Johnson Syndrome, Commission observed that,
The patient at her young age of 12 years suffered very serious and potentially fatal SJ syndrome. It was the patient’s sheer good luck that she survived in spite of such grossly inappropriate/inadequate treatment at every stage.
Therefore, the patient was awarded a lump sum amount of Rs 10 lakhs.
https://www.scconline.com/blog/post/2022/01/28/medical-negligence-6/
Legislation Updates
CISF issues circular to implement “One Hand Bag Rule” in airports more strictly
A new circular has been issued by Central Industrial Security Force (CISF) which handles airport security on January 19, 2022. As per the circular, no passenger shall be permitted to carry more than one hand bag, other than the exceptions issued by the Bureau of Civil Aviation (BCAS). The circular noted that passengers are flouting the rule and on average carrying 2-3 bags to the screening point which causes congestion and inconvenience to other passengers.
CISF has instructed all airlines and airport operators to implement the ‘One Hand Bag Rule’ more meticulously to ease out congestion.
Gas Cylinders (Amendment) Rules, 2022
The Amendment requires all the high pressure cylinders and Cryogenic containers used for filling of Non-Toxic, Non-Flammable Gases and Liquids to have permanent and tamper proof marking in form of Bar Code or RFID or QR code or any means of electronic identification number at conspicuous place on cylinders and containers.
Drugs (Amendment) Rules, 2022
The amendment requires every active pharmaceutical ingredient (bulk drug) manufactured or imported in India to bear Quick Response code on its label at each level packaging that store data or information readable with software application to facilitate tracking and tracing.
The Amendment Rules will come into force from January 01, 2023.
Supreme Court Collegium has, on reconsideration, resolved to reiterate its earlier recommendation for the elevation of the following two Advocates as Judges in the Patna High Court:
1. Shri Khatim Reza, and
2. Dr. Anshuman Pandey.
The Supreme Court Collegium also approved the proposal for the elevation of Shri Rajiv Roy, Advocate, as Judge in the Patna High Court.
Supreme Court Collegium
[Collegium Statement dt. 1-2-2022]
The Supreme Court Collegium has approved the proposal for the elevation of the following persons as Judges in the Telangana High Court:
ADVOCATES:
1. Shri Kasoju Surendhar @ K. Surender,
2. Shri Chada Vijaya Bhaskar Reddy,
3. Smt. Surepalli Nanda,
4. Shri Mummineni Sudheer Kumar,
5. Smt. Juvvadi Sridevi @ Kuchadi Sridevi,
6. Shri Mirza Safiulla Baig, and
7. Shri Natcharaju Shravan Kumar Venkat.
JUDICIAL OFFICERS:
1. Smt. G. Anupama Chakravarthy,
2. Smt. M.G. Priyadarshini,
3. Shri Sambasivarao Naidu,
4. Shri A. Santosh Reddy, and
5. Dr. D. Nagarjun.
Supreme Court of India
[Collegium Statement dt. 1-2-2022]
82 Judgments from the High Courts of the Country, you wouldn’t want to miss. Here’s a short recap from the month of January 2022.
Allahabad High Court
To condole demise of any member or anyone else, can Members of Bar obstruct functioning of Courts? All HC decides
J.J. Munir, J., expressed that,
The Members of the Bar are free to hold a meeting to condole the demise of any member or anyone else, but they do not have the right to obstruct the functioning of Courts.
Taking Rs 15,000 as notional income of a family member who is non-earning, in a motor accident claim: Is it reasonable? All HC decides
The Division Bench of Dr Kaushal Jayendra Thaker and Ajai Tyagi, JJ., enhances quantum of award of a non-earning member in a motor accident claim, while referring to the Supreme Court decision in Kurvan Ansari v. Shyam Kishore Murmu, 2021 SCC OnLine SC 1060.
Settlement terms decided by Mediation and Conciliation Centre, can be the reason for quashing of an FIR under S. 482 CrPC: All HC
Rajeev Singh, J., reiterated that under Section 482 of the Criminal Procedure Code, an FIR i.e. First Information Report can be quashed in view of the settlement terms.
When a divorce decree under Section 13 of the Hindu Marriage Act is passed the wife of such annulled marriage can claim maintenance under Section 25 of Hindu Marriage Act.
“…we boast ourselves as an educated society, but we live our lives with double standards”: Allahabad HC condemns prevailing caste system even after 75 years of independence
While expressing that “Caste system in our society is deeply rooted, we boast ourselves as educated society, but we live our lives with double standards” Rahul Chaturvedi, J., granted bail to an accused of cold-blooded murder in an alleged honour killing case.
Andhra Pradesh High Court
LGBTQ+ community’s right to reservation; Can a transgender claim to be appointed by reservation in spite of failure to secure minimum cut off marks in screening test? HC answers
In a significant case wherein, a transgender had approached the Court seeking benefit of reservation for appointment in police department, M. Satyanarayana Murthy, J., denied to issue direction to the State in favour of the petitioner
Bombay High Court
Feeding of Dogs
Feeding of Dogs inside complex v. Feeding of Dogs outside complex: Bom HC appoints amicus curiae to assist Court in resolving dispute
The Division Bench of S.J. Kathawalla and Milind N. Jadhav, JJ., addressed a matter in which a dispute revolved with regard to the feeding of dogs in the society complex.
Elections for Sarpanch
Candidate contesting elections for Sarpanch post making “self-declaration” that he/she has “toilet” at their residence, is sufficient compliance under Maharashtra Village Panchayat Act? Bom HC examines
G.S. Kulkarni, J., considered the question,
Whether a “self-declaration” made by a candidate contesting elections to the post of Sarpanch, that he/she has a “toilet” in a house where he/she resides was sufficient compliance, to be not disqualified under Section 14(1) (j-5) of the Maharashtra Village Panchayat Act, 1959?
Domestic Violence Act
Whether right to claim monetary reliefs, protection order and compensation under the D.V. Act, extinguish on death of “aggrieved person”? Bom HC explains
Sandeep K. Shinde, J., examines whether an application under Section 12 of the Domestic Violence Act on behalf of relatives of deceased seeking monetary relief, possession of ‘stridhan’ and compensation was maintainable or not.
Employees Compensation Act
Can ‘minor’ who succumbed to an accident during course of employment be compensated under Employees Compensation Act or Insurance Company will be absolved of its liability? Bom HC explains
Workmen’s Compensation Act, 1923 does not prohibit payment of compensation to a minor.
False Promise of Marriage
False promise of marriage to satisfy lust, leading to offence of cheating and rape?: Bom HC refuses to quash FIR for offences under Ss. 376, 417 IPC
The Division Bench of A.S. Chandurkar and G.A. Sanap, JJ., refused to exercise jurisdiction under Section 482 CrPC for quashing an FIR in offences of cheating and rape in the matter wherein the applicant/accused committed sexual intercourse with the girl against her will in the pretext of the false promise of marriage.
Law on Section 498-A IPC
Can an alleged girlfriend be arrayed as an accused in a crime registered under S. 498-A IPC? Bom HC reiterates SC’s observation
The Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., reiterated that an alleged girlfriend cannot be arrayed as accused in an offence registered under Section 498-A of Penal Code, 1860.
Maintenance to Senior Citizen
Son ousted benighted widowed mother, deprived her right to “live a normal life” apart from maintaining and supporting her livelihood: Bom HC
G.S. Kulkarni, J., while addressing another unfortunate case concerning a mother who was ousted from the tenement she owned by her own son. In view of the said, Court expressed that,
This appears to be another clear case where the petitioner(son) has no other intention but to enjoy the tenement exclusively, ousting the roof over his mother’s head, taking advantage of her incapacity at such an old age.
Property
Can a girl be treated as property and given in donation? Bom HC addresses in light of “Daanpatra” executed by father of a daughter
“When the girl as per her own statement is minor, then why the father who is in all respect guardian of the girl should give the girl as Daan? A girl is not a property which can be given in donation.”
Calcutta High Court
Compassionate Appointment
Daughter-in-law who obtains compassionate appointment by stating that she will take responsibility of her mother-in-law is bound by that undertaking: Cal HC
80-year-old widow approaches Court to seek direction towards her daughter-in-law to provide for her maintenance as she had taken compassionate appointment on the death of her son, Division Bench of Prakash Shrivastava, CJ and Rajarshi Bharadwaj, J., held that the daughter-in-law is bound by the undertaking by which she had obtained a compassionate appointment.
Delhi High Court
Termination of Pregnancy
Foetus with severe cardiac anomaly, but pregnancy beyond 24 weeks: Can a mother be permitted for termination of pregnancy? Del HC explains in light of ‘mental health’ of mother
“…entire medical regime would expose the child to intra and post-operative complications and may lead to further complexities, adversely impacting the quality of the child’s life.”
Arbitration
Future Retail seeking to terminate arbitration proceedings with Amazon: Read Delhi HC’s decision on 4 significant points
Amit Bansal, J., noted that,
“…there is only a very small window for interference with orders passed by the Arbitral Tribunal while exercising jurisdiction under Article 227. The said window becomes even narrower where the orders passed by the Arbitral Tribunal are procedural in nature.”
‘Stay’ on proceedings before Singapore Tribunal; Prima Facie case in favour of Future Group
The Division Bench of D.N. Patel, CJ and Jyoti Singh, J., stayed the arbitration proceeding in Amazon v. Future Group before the Singapore Tribunal.
Arrest and Incarcerations
‘Arrest, incarceration destroys a person and affects innocent relatives’: Del HC sentences police officer to 1-day SI for contempt of court, breach of directions in Arnesh Kumar case
Najmi Waziri, J., observed that “Arrest and incarceration destroys a person and collaterally affects many other innocent relatives. Subsequent release or acquittal of an innocent, is of no solace and offers no reparation to the loss of reputation or for the temporary loss of precious personal liberty.”
Divorce
“Overseas wife”, 11 years old marriage, husband visited wife for few days on yearly visits from Canada: A moribund marriage or not? Del HC decides
While addressing a matter of divorce proceedings, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,
“…every marriage, where the couple stays apart from each other for work or other obligations consensually, is a broken one.”
Bail
Delhi HC explains when a Court can seize liberty of an accused undertrial
Subramonium Prasad, J., while explaining the facets of cancellation of bail and rejection of an application for bail, made an observation that,
Personal liberty is one of the cherished constitutional freedoms. Once granted to an accused pending completion of the Trial, it must only be retracted in the face of grave and exacerbating circumstances.
Can gravity of offence be the sole ground to deny bail? Del HC decides in a multi-person scam involving Rs 200 Crores
Subramonium Prasad, J., addressed whether the magnitude of offence can be the only criterion for granting bail and further explained the object of bail.
Compromise
Will Delhi HC allow waiving off alleged offence of rape in view of compromise and subsequent marriage between complainant and accused? Read to know
Stating that, Rape is an act against society, Rajnish Bhatnagar, J., held that simply entering into a compromise allegation of rape will not lose its gravity.
Desertion
Wife refused to join company of husband on ground of ‘auspicious time’. Would this amount to ‘desertion’ by wife? Chh HC elucidates
The Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., held that the wife refusing to join the company of her husband in view of waiting for auspicious time, would amount to desertion.
Disinvestment
Dr Subramanian Swamy’s plea that Air India’s Disinvestment is arbitrary, illegal, corrupt: 5-pointer report of Del HC decision
The Division Bench of D.N. Patel, CJ and Jyoti Singh, J., dismisses Dr Subramanian Swamy’s plea stating that any delay in the process of disinvestment of Air India would cause loss to public exchequer, besides creating uncertainty amongst the existing employees.
Matrimonial Expenses
‘Unmarried daughter, even if earning, can’t be assumed to have sufficient resources to meet matrimonial expenses’: Del HC orders father to pay marriage expenses of daughters
Father’s duty to maintain his unmarried daughters, including his duty to provide for their marriage is clearly recognized by the law.
Sexual Assault
Del HC upholds conviction for rape and penetrative sexual assault where ‘wife’ was below 18 yrs of age
Mukta Gupta, J., decided an appeal challenging the impugned decision whereby the appellant had been convicted for the impugned decision whereby he had been convicted for offences punishable under Section 376 of Penal Code, 1860 read with Section 4 of the POCSO Act and the order on sentence dated 15-1-2020 whereby the appellant had been directed to undergo rigorous imprisonment for a period of 10 years and a fine of Rs 10,000, in default whereof to undergo simple imprisonment for a period of six months.
False invocation of Ss. 354A, 506 IPC merely trivalises offence of sexual harassment casting doubt on veracity of allegations by victim who has in reality faced sexual harassment: Del HC
Subramonium Prasad, J., expressed its anguish at how provisions such as Sections 354A/506 of Penal Code, 1860 are falsely invoked at the drop of a hat to register one’s displeasure at the conduct of another individual.
Trademark
Why is ‘Rooh Afza’ seeking injunction against ‘Dil Afza’? Here’s how Del HC stressed upon ‘deep emotion’ while deciding
Buying a bottle of sharbat may involve emotions, but not deep to the extent hoped for by the learned counsel for the plaintiffs. In any case, those who appreciate this deep emotion would be the first to be able to distinguish between ‘Rooh’ and ‘Dil’.
Del HC restrains Courtyard Holidays World Private Limited from using registered trademark “COURTYARD”: Read a detailed report on trademark infringement case
Asha Menon, J., in a trademark infringement case, restrained the ‘Courtyard Holidays World Private Limited’ from using the impugned marks “COURTYARD”, “COURTYARD HOLIDAYS”, “COURTYARD HOLIDAYS WORLD”, and/or any other mark/logo or label and/or domain name which is identical or similar to the Plaintiff’s registered trademarks “COURTYARD”.
Conviction
Son-in-law inflicts injury with axe on mother-in-law and wife, Challenges conviction under S. 307 IPC: Del HC revisits law while refusing to interfere
It is trite law that for conviction for an offence punishable under Section 307 IPC, it is not necessary that the victim should suffer an injury and, in a case, where the offence is committed with an intention to commit the murder of the victim, Section 307 IPC would be attracted as in the case of firing when no resultant injury is suffered by the victim.
Faceless Assessment Scheme
Provision of Personal Hearing would defeat the purpose of Faceless Assessment Scheme? Del HC decides
The Division Bench of Manmohan and Navin Chawla, JJ., while focusing on the principles of natural justice and right to personal hearing observed that,
“Faceless Assessment Scheme does not mean no personal hearing.”
“An assessee has a vested right to personal hearing and the same has to be given, if an assessee asks for it.”
Judicial Overreach
Photograph of summons sent through WhatsApp as an addition to ordinary process would amount to Judicial Overreach? Del HC decides
Amit Bansal, J., expressed that
Just because the photograph of the summons were sent by the plaintiff to the defendant through WhatsApp cannot amount to overreaching the judicial system or running a parallel system with the judicial system.
Insurance Claim
Whether insurance company is liable to pay claim even if vehicle stolen and unauthorisedly driven? Del HC decides
…if the proposition of the insurance company was accepted, it would militate against the very concept of a beneficial legislation for the victims of an accident. If such a finding were to be returned then the effect would be that even though a vehicle is insured but is stolen, not only would the insurance company be entitled to avoid its liability but the owner of the vehicle who has insured his vehicle against theft and accident would be saddled with a liability for no fault of his.”
Law on Rejection of Plaint
Contents of plaint or Examining sufficiency of plaint? Del HC explains the bounden duty of Court
Prateek Jalan, J., expressed that,
For the purposes of an order under Order VII Rule 11 of the CPC, the Court must come to the conclusion that the plaint is required to be rejected.
Victims’ Rights | Fair Trial
Fair trial is the hallmark of criminal procedure, it entails not only rights of victims but also interest of accused: Delhi HC
“It is the duty of every Court to ensure that fair and proper opportunities are granted to the accused for just decision of the case.”
Maintenance
Court under maintenance proceedings under S. 125 of CrPC, can usurp jurisdiction of Civil Courts? Del HC decides
Chandra Dhari Singh, J., decided a maintenance case wherein the marital status of the parties was the crux of the matter and expressed that,
“…there is no straight jacket formula for judging the validity of the marriage between the parties.”
Misconduct
Customer produced to prove the guilt of misconduct by Conductor of DTC Bus: Is it correct? Del HC answers while reiterating established position of law
Prathiba M. Singh, J., while examining a case which was dismissed 30 years ago with regard to a workman’s misconduct, reiterated the well-established law that, customers’ need not be produced in such proceedings in order to prove the misconduct of the workman.
Gujarat High Court
Conjugal Rights
Can a wife be forced to cohabit and establish conjugal rights? Or can a decree do so? Guj HC answers
A marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is nothing more than an enforcement of the right to consortium under this contract.
POCSO
Court goes beyond the relief sought, helps POCSO victim to become self-sufficient
The Division Bench of Sonia Gokani and N.V. Anjaria, JJ. went beyond the case to help a POCSO victim to continue her further studies from her parental home. Order was issued against a Criminal Misc. Application filed by the desirous victim pleading the Court to allow her to handover the custody of her minor daughter and join her parents. The applicant was called before the Court with her child before passing of the order.
Senior Citizen Act
Senior Citizen Act cannot rescind Domestic Violence Act
“The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the PWDV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislation have to be harmoniously construed.”
Himachal Pradesh High Court
Internet Services
Petition filed highlighting the plight of residents of the State regarding internet services in view of virtual classes/courtrooms etc.; Elaborate suggestions laid down
A Division Bench of Tarlok Singh Chauhan and Chander Singh Barowalia JJ. directed the respondents to comply with the directions given and report compliance on the next date of hearing.
Compassionate Appointment
Compassionate appointment is not a matter of right but subject to policy changes; appointment rightly rejected to son as mother is already employed with PWD
Order 18 Rule 17-A CPC
Power under Or. 18 R. 17 CPC cannot be invoked to fill up omission in the evidence already led by a witness
“…basic purpose of Rule 17 is to enable the Court to clarify any position or doubt. While exercising power Under Order 18 Rule 17-A CPC, Court may, either suo motu or on the request of any party, recall any witness at any stage in this regard. No doubt, power can be exercised at any stage, once the Court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the Court.”
Jammu and Kashmir High Court
Dowry Death
Dowry Prohibition Act vis-a-vis J&K Dowry Restraint Act; HC blurs the line between the two
In a case alleging dowry death, Rajnesh Oswal, J., clarified the scope and applicability of Jammu and Kashmir Dowry Restraint Act 1960. Observing that the Trial Court had conducted mini trial at the stage of framing of charge, the Bench expressed,
“The trial court was considering issue with regard to framing of charge under section 304-B RPC but the trial court got swayed by the definition of dowry as defined under the Act of 1960 forgetting the legislative intent behind making the amendment, more when the definition was elastic even for the purpose of Act of 1960 by the use of expression “In this Act unless the context otherwise requires”.
Jharkhand High Court
Maintenance
What is the effective date of grant of maintenance? Is it the date of judgment or the date of filing of maintenance application?
Anubha Rawat Choudhary, J., held that right to claim maintenance must date back to the date of filing the application since the period during which the maintenance proceedings remained pending is not within the control of the applicant.
Civil Services
Mistakenly entered wrong digit of Roll No. in OMR sheet? Can one seek to add obtained scores when the sheet is rejected by Scanning Machine? HC answers
S.N. Pathak, J., rejected the petition filed by a civil services candidate, who was declared unsuccessful in prelims examination due to darkening wrong last digit of roll number in OMR sheet. The Bench stated,
“May be the petitioner has not intentionally darkened digit 6 instead of 8, but sympathy has no place in the eyes of law. The law will prevail in view of the terms and conditions as mentioned in the Advertisement, Admit Card and that of the Rules framed by the JPSC.”
Kerala High Court
CLAT PG-2021
Is confining Selection process of NTPC to CLAT PG-2021 candidates only prima facie discriminatory? HC to decide
V.G. Arun, J., held that the practice of confining selection process to CLAT PG-2021 candidates only for the post of Assistant Law Officer at NTPC was prima facie discriminatory. However, without expressing anything further on the matter the Bench had adjourned the matter for further hearing with the direction to the Central Government and NTPC to file a detailed counter affidavit in that regard.
Guardian of Property
Guardian of Property v/s Guardian of Person of the minor; HC clarifies jurisdiction of District Court
The Division Bench of A. Muhamed Mustaque and Sophy Thomas held that the District Court cannot entertain petition to appoint guardian of the person of the minor child, however power to appoint guardian of the property of the minor is well within the jurisdiction of the District Court. The Bench clarified, the fact that a court cannot appoint a guardian of the person, is no bar for appointing a guardian of the property.
Maintenance
Right to maintenance of child born out of inter-faith marriage: Is father under obligation to maintain his children even when there’s no statutory stipulation? HC answers
In a significant case regarding Right to maintenance of child born out of inter-faith marriage, the Division Bench of Dr. Kausar Edappagath and A. Muhamed Mustaque JJ., held that the child being non sui juris, the State and the Courts as Parens Patriae are bound to protect it irrespective of law being silent in this regard. The Bench expressed,
“We see no reason to deny the children born to an inter-faith couple legal right to claim maintenance from their father for the reason that there is no specific statutory provision mandating such a father to maintain his children.”
Karnataka High Court
Sale Deed
Will an ex post facto approval validate a sale deed where prior approval by State Government was a statutory prerequisite? HC answers
Bail
Bail order not containing cogent reasons liable to be set aside for non-application of mind
The Court observed that The reasons assigned by the Trial Court is nothing but perverse and though elaborately discussed in the order, but the very approach in exercising the discretion under Section 439 of Cr.P.C. it is nothing but capricious order
Social Classification
Persons with disability are a homogenous class irrespective of social classification; such classification can’t be impeached by linking it with Art. 16 or Art 15
“Persons claiming social reservation fall in one compartment and persons with disabilities who are included in the quota fall on a different distinct compartment so there arises no question of violation of Article 14 of the Constitution.”
Motor Accident
“If relief is not moulded by awarding higher compensation, we will be failing in our duty”; Kar HC discussed compensation vis a vis permanent sexual disability in motor accident cases
The Court observed that the Motor Vehicles Act, 1988, is a benevolent legislation and the duty is cast upon the Tribunal to award just and fair compensation to the victim of a Motor Vehicle Accident and thus taking into consideration the inflation and constantly depreciating purchasing power of the rupee, the court deemed deem it appropriate to enhance the compensation.
Madras High Court
Right to Relax
Right to Relax in danger? Would installing CCTVs in spas and massage parlours infringe bodily autonomy of a person? Madras HC pens down its view
“Suspicion that immoral activities are taking place in massage centres cannot be reason enough to intrude into an individual’s right to relax for it intrinsically is part and parcel of his fundamental right to privacy.”
License
Clubs allowing members to bring liquor purchased from outside, and drink without FL-2 license. Is it permissible? Madras HC examines, Issues directions
“Any Association, Club or otherwise cannot go beyond the scope of its bye laws and the Competent Authorities under the Societies Registration Act are also empowered to initiate action for violation of the bye-laws.”
Compensation
Rat-bite in hospital, compensation claimed: Madras HC relies on newspaper report since no rejoinder was given by Hospital
“….while examining a particular fact in the Writ Petition, strict rules of evidence do not apply but existence of a fact can be taken judicial note by surrounding circumstances…”
Outrage the religious beliefs
Expressing opinion with regard to temple restoration, would amount to attract an offence under S. 295-A IPC? Report on Madras HC decision
G.R. Swaminathan, J., quashed an FIR stating that S. 295-A IPC is attracted only if there is deliberate and malicious intent to outrage the religious beliefs of a particular class.
‘On Judgement Day, God shall admonish petitioner for committing un-Christian act’: Read whether Madras HC holds Catholic Priest prima facie accountable under S. 295A IPC for using ‘Bharat Mata’ and ‘Bhuma Devi’ in offensive manner
To uphold the sanctity of the Constitution and maintain public order, the strong arm of law will have to come down heavily on those who seek to disrupt communal peace and amity.
State Revenues
Cases involving large scale revenue unresolved for several years, leading to looting of nation’s properties: Read what Madras HC observes
There is a Grouping Section, which is functioning in the High Court. The said Section must be utilised for collecting large scale revenue involved cases now pending before the High Court for many years and the Registry must place all those cases before the Hon’ble the Chief Justice for speedy disposal.
Conjugal Rights
Whether denial of conjugal rights to a prisoner amounts to violation of Art. 21 of the Constitution of India? Madras HC answers in light of “extraordinary circumstances”
Expressing that, a convict cannot enjoy all the liberties as are available to a common person, otherwise there would no difference between a law-abiding citizen and a law-violating prisoner, the Division Bench of Munishwar Nath Bhandari, ACJ and Pushpa Sathyanarayana and P.D. Audikesavalu, JJ., held that,
The leave for a specific purpose which may be for undergoing infertility treatment, as such, may not be considered for having conjugal relationship in common parlance, but for extraordinary reason, thus we (High Court) can safely hold that the 1982 Rules itself protect the rights of the prisoner guaranteed under Article 21 of the Constitution of India to the extent it is required.
Madhya Pradesh High Court
Arbitration
Dismissal of application under S. 34 of Arbitration and Conciliation Act of 1996 on ground of limitation will come within the purview of refusing to set aside an arbitration award
Vishal Dhagat, J. expressed that, dismissal of application under Section 34 of Act of 1996 on ground of limitation will come within the purview of refusing to set aside an arbitration award, therefore, appeal under Section 37 will be maintainable if application under Section 34 is dismissed on ground of limitation.
Does Arbitral Tribunal have exclusive jurisdiction to settle disputes relating to “works contract” in State of Madhya Pradesh under the scheme of M.P Madhyastham Adhikaran Adhiniyam, 1983? MP HC explains
Bench expressed,
“…the Act of 1983 provides that whether the parties to a “works contract” incorporate an arbitration agreement or not, any dispute relating to “works contract” shall fall within the exclusive jurisdiction of the Tribunal.”
Courts should emphasize on bridging the gap between the time period of reservation and delivery of the judgment
“It is the need of the hour to emphasize over the need to pronounce judgment expeditiously and curtailing the time gap between reserving of a case and pronouncing of judgment to the bare minimum, it is vivid that the Tribunal heard and reserved the original application preferred on 20.02.2019 whereafter the impugned judgment was pronounced by the Tribunal on 17.01.2020 i.e. after nearly 11 months, which is a very long period of time”
State saddled with costs for colourable exercise of power reflecting favours; petition allowed
The Division Bench of Sheel Nagu and Purushaindra Kumar Kaurav, JJ. allowed petition filed under Article 226 of the Constitution filed by Smt Rampyari Patel and quashed impugned order dated 06-07-2021 passed by State Government.
Disciplinary Proceedings
Delinquent employee in disciplinary proceedings has statutory right to engage a Defence Assistant
The Division Bench of Sheel Nagu and Purushaindra Kumar Kaurav, JJ. allowed the petition filed under Art 226 by an employee facing disciplinary proceedings.
Strike
It is duty and obligation of Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike; Court dismisses appeal
Sujoy Paul, J. dealt and dismissed a petition while highlighting the increasing issues of strikes and boycotts by the lawyers.
Reservation
Difficult Areas vis-a-vis Difficult Services, Issues of reservation and incentive marks; HC puts an end to the battle between Doctors and State
“If we hold that the Demonstrators and Tutors are eligible despite being posted in towns (not covered under difficult, rural or remote areas) as in-service candidates and petitioners are not, it will divide a homogeneous class of ‘in-service candidates’ and will create a class within the class without there being any rationale and justification for the same.”
Kazi
Can a Kazi adjudicate disputes like a Court and pass an order like a decree? MP HC answers
“If a Kazi entertains a dispute and acts as a mediator to settle the dispute between the members of the community that would be permissible, but he cannot adjudicate the dispute like a court and pass an order like a decree.”
Orissa High Court
Investigating Agency
Court can neither be a mute spectator to the whims and fancies of the investigating agency nor be a party to it; Ori HC observes in a case where final form was submitted after 15 years
The Court held that the inaction of the investigating agency to conclude the investigation for as long as 15 years, that too, without offering even a semblance of explanation is a direct affront to the cherished principle of right to speedy trial ingrained in the provisions of Article 21 of the Constitution of India.
Public Interest
Retaining an employee in service if he lacks in the standard of efficiency required to discharge the duties of the post he presently holds is not in public interest
“The Court observed that the object of compulsory retirement is to weed out the dishonest, the corrupt and the deadwood. It is true that if an honest Judicial Officer is compulsorily retired it might lower the morale of his colleagues and other members in the service.”
Punjab and Haryana High Court
Live-in-relationship
Merely living together for few days is not live-in-relationship; HC imposes cost of Rs 25000 on runaway couple
In a case where a young couple who had started living in a hotel two days ago had approached the Court for protection, Manoj Bajaj, J., imposed a cost of Rs. 25000. The Bench expressed,
“Merely because the two adults are living together for few days, their claim of live-in-relationship based upon bald averment may not be enough to hold that they are truly in live-in-relationship.”
Bail
Long custody is an essential factor for granting bail under UAPA; HC grants bail to woman lodged in jail along with her infant in connection with a Facebook post
Anupinder Singh Grewal, J., granted bail to the woman who was in custody along with her barely two years old infant in connection with alleged offence committed under UAPA. The main allegation against the petitioner was with regard to a Facebook post supporting banned organization ‘Sikhs for Justice 2020 Referendum’.
Divorce
Are Recordings of Private Conversation between Husband and Wife permissible as evidence under S. 13 of HMA, 1955? HC decides
Lisa Gill, J., held that to permit a spouse to record conversations with an unsuspecting partner and to produce the same in a court of law, to be made the basis of deciding a petition under Section 13 of the Act cannot be permitted.
Investigation
P&H HC stresses upon adopting contemporary methods of investigation rather than taking third-degree shortcuts
Bench reiterated that,
“police faces a very uphill task in dealing with criminals, especially hardened criminals and the work done by the police force and any investigating agency is to be highly appreciated, in trying to apprehending criminals and actually apprehending them and bringing them to justice; yet, as per the constitutional scheme and the statutory provisions framed thereunder in India, not even the worst criminal can be denied a fair procedure in terms of the statutory provisions laid down in the Code of Criminal Procedure, 1973, and any such law in force.”
Rajasthan High Court
Mother tongue or English as a medium of instruction? Raj HC dealt with the issue when State decided to convert a Hindi medium school to English medium
“…the rights of the petitioners and the pupil of the school to have instructions in Hindi that are protected under Article 19(1)(a) of the Constitution of India and such rights can be diluted only by way of a legislation enacted in the contingencies mentioned in cause (2) of Article 19.”
Police Protection
Courts are not meant to provide police protection to youths who have fled to marry according to their own wishes; Raj HC reiterated
The Court observed that in a deserving case, the Court can provide security to the couple, but cannot lend them the support they have sought. They have to learn to support each other and face the society. If any person misbehaves or manhandles them, the Courts and police authorities are there to come to their rescue, but they cannot claim security as a matter of course or right.
Pecuniary Jurisdiction
Objection with regard to pecuniary jurisdiction shall be taken at the first instance at the earliest possible opportunity in accordance with S. 21 CPC
“no such objection was taken by the defendants at the earliest stage or not during the course of trial when it reached to its final stage. Now at the stage of final disposal, the application has been submitted which has been accepted by the learned court below by overlooking the mandatory provisions contained under Section 21 of the Code of Civil Procedure.”
Reverse Burden of Proof
Burden on the defence to prove the plea of insanity is only to the extent of establishing the same by preponderance of probabilities, need not be proved beyond all manner of doubt
Telangana High Court
Section 138 NI Act
A joint account holder cannot be prosecuted unless and until he/she is a signatory to subject cheque
“…Penal provisions should be construed strictly, but not in a routine/casual manner. The words used in Section 138 of N.I. Act that “such person shall, be deemed to have committed an offence,, refers to a person who has drawn the cheque, but not any other person, except the contingencies mentioned under Section 141 of the N.I. Act.”
Tripura High Court
Insurance Company
Compensation amount limited to amount claimed, Insurance Company’s liability reduced
S.G. Chattopadhyay, J. in the concerning matter to Parimal Das, held that the person claiming compensation should receive the amount not more than what he claimed. However, this doesn’t mean that the court is powerless to not award more compensation than the amount claimed.
DNA Testing
Unless and until there is a challenge to the personal documents, direction cannot be given for DNA testing; Court dismisses appeal
Amarnath Goud, J., dealt with a petition wherein the case of the petitioner was that the respondent was not the son of the deceased Kshitish Ghosh and under the garb of certain Wills the respondent was selling the properties which were in dispute before the trial court. Petition further prayed to reconsider DNA testing approval which was dismissed earlier.
Supreme Court Collegium has approved the proposal for elevation of the following persons as Judges in the Madhya Pradesh High Court:
ADVOCATES:
1. Shri Maninder Singh Bhatti,
2. Shri Dwarka Dhish Bansal @ DD Bansal, and
3. Shri Milind Ramesh Phadke.
JUDICIAL OFFICERS:
1. Shri Amar Nath Kesharwani,
2. Shri Prakash Chandra Gupta, and
3. Shri Dinesh Kumar Paliwal.
Supreme Court of India
[Statement dt. 29-1-2022]
