Case BriefsHigh Courts

Allahabad High Court: The Full Bench of Sanjay Yadav, Mahesh Chandra Tripathi and Siddhartha Varma, JJ., in a very significant ruling expressed that:

“…writ of Habeas Corpus is not maintainable against the judicial order or an order passed by the Child Welfare Committee under the J.J. Act.”

Instant writ petition was listed in the reference made by the Division Bench of this Court, in order to consider the various provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the law laid down by various Courts.

Following issues were framed by the Division Bench:

“(1) Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home?;

(2) Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed/viewed as an illegal detention?; and

(3) Under the Scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and as such, the proposition that even a minor cannot be sent to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home against his/her wishes, is legally valid or it requires a modified approach in consonance with the object of the Act ?”

Ancillary Issues

Bench noted that apart from the above framed issues there were some ancillary issues attached in cases of elopement of minor girls ad on recovery, sending them to Nari Niketan/Protection Home/Care Home.

Run-away Marriages

Large number of habeas corpus petitions are filed by the parents/guardians or alleged husband for production of their wards or wife, who leave their parental houses in “run-away marriages”.

Court while dealing with habeas corpus petitions are required to ensure that the person whose production is sought is not illegally detained.

Further, elaborating more on the above aspect, Bench expressed that difficulty arises in the cases where the minor girl has entered into matrimonial alliance and is steadfast in her resolve to continue to cohabit with the partner of her choice. —- At times, the girl is even on family way.

On perusal of Section 11 and 12 of the Hindu Marriage Act, it would be seen that contravention of the prescribed age under Section 5(iii) of the Act would not be given as a ground on which the marriage could be void or voidable.

Child Marriage Restraint Act, 1929 aims to restrain performances of child marriages but does not affect the validity of a marriage, even though it may be in contravention of the age prescribed under the Act. Performance of such marriage punishable under the law with imprisonment which can extend up to three months and with a fine. Even Section 12 of the Act provides to issue an injunction to prevent performance of any child marriage.

Supreme Court while considering the provisions of the Child Marriage Restraint Act has observed that contravention of the provisions of the said Act would only lead to punishment and marriage would not be void.

Now coming back to the issues framed, Court addressed the first issue in the following manner:

Nature and scope of the habeas corpus writ has been considered by the Constitution Bench of the Supreme Court in Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674.

In dealing with a petition for habeas corpus, High Court has to see whether the detention on the date, on which the application is made to Court, is legal, if nothing more has intervened between the date of application and the date of hearing …”Ref. A.K. Gopalan v. Government of India, AIR 1966 SC 816.

High Court expressed that: writ of habeas corpus lies against the order of remand made by a court of competent jurisdiction. It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical or wholly illegal manner.

In Serious Fraud Investigation Office v. Rahul Modi, (2019) 5 SCC 266 the Supreme Court cancelled bail granted by the Delhi High Court to Rahul Modi and Mukesh Modi accused of duping investors of several hundred crores through a ponzi scheme run by their Gujarat based other co-operative societies. Both the accused were released by the Delhi High Court in a habeas corpus writ petition even though they were remanded to judicial custody under the orders of a competent court.

Proceeding further to analyse the questions, Bench opined that the Magistrate or the Committee in case directing the girl to be kept in protective home under the J.J. Act the Magistrate or the Committee, should give credence to her wish.

In order to bring more clarity on the matter, Bench referred to the decision of Supreme Court in Raj Kumari v. Superintendent Women Protection House, 1997 (2) A.W.C. 720, wherein it was held that a minor cannot be sent to Nari Niketan against her wishes and the same preposition of law is being incorporated in the orders passed by this Court while entertaining the Habeas Corpus Writ Petition of minor girl, who has been detained in Nari Niketan by a judicial order.

High Court considered an issue as to whether there is any authority for detention of the corpus with any person in law.

Can Magistrate direct the detention of a person?

Corpus was detained in the Nari Niketan under the directions of the Magistrate, the first thing to be determined is – whether the Magistrate can direct the detention of a person in the situation in which the petitioner is. To which the answer was no the magistrate has no absolute right to detain any person at the place of his choice or any other place unless the same could be justified by some law and procedure.

Detention at Nari Niketan

Elaborating further, Bench expressed that no law has been quote with regard to whether the Magistrate may direct detention of a witness simply because she does not like to go to any particular place. Hence, in such circumstances, the direction of the Magistrate that she shall be detained at Nari Niketan is absolutely without jurisdiction and illegal.

It is the paramount responsibility of the Committee to take all necessary measures for taking into account the child’s wishes after making due enquiry, which contemplates under Section 36 of J.J. Act and take final decision.

Therefore, Bench stated that in case corpus is in Women Protection Home pursuant to an order passed by the Child Welfare Committee, which is neither without jurisdiction nor illegal or perverse, the detention of the corpus cannot be said to be illegal and in case petitioner is aggrieved with the Child Welfare Committee or Magistrate’s order, petitioner is at liberty to take recourse or remedy of an appeal or revision under Sections 101 and 102 of the J.J. Act.

In the present matter, Bench observed that the petitioner corpus was 17 years, one month and 8 days old, hence was directed to be placed in Women Protection Home, since she came under the ambit of a child as defined under Section 2(12) of the J.J Act.

Once corpus is minor and the girl had refused to go with her parents, then in such situation arrangement has to be made. Her interest in paramount.

Therefore, wish of minor and the wish/desire of girl can always be considered by the Magistrate concerned/Committee and as per her wishes/desire further follow up action be taken in accordance with law under the J.J. Act.

Conclusion

Issue 1: If the petitioner corpus is in custody as per judicial orders passed by a Judicial Magistrate or a Court of Competent Jurisdiction or a Child Welfare Committee under the J.J. Act. Consequently, such an order passed by the Magistrate or by the Committee cannot be challenged/assailed or set aside in a writ of habeas corpus.

Issue 2: An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare Committee appointed under Section 27 of the J.J. Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated illegal detention.

Issue 3: Under the J.J. Act, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and the Magistrate/Committee must give credence to her wishes. As per Section 37 of the J.J. Act the Committee, on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child’s wishes in case the child is sufficiently mature to take a view, pass one or more of the orders mentioned in Section 37 (1) (a) to (h).

[Rachna v. State of U.P.,  2021 SCC OnLine All 211, decided on 08-03-2021]


Advocates before the Court:

For the Petitioner: Avinash Pandey, Amicus, Sri Shagir Ahmad

For the Respondent: G.A., JK Upadhyay

Case BriefsTribunals/Commissions/Regulatory Bodies

Income Tax Appellate Tribunal, Mumbai (ITAT): Dealing with the issue on nature, scope, and explanation Section 263 (2)(a) to the effect that an order is deemed to be erroneous and prejudicial to the interests of the revenue or not. Further, what a prudent, judicious and responsible Assessing is to do in the court of Assessment Proceeding, whether an income is exempt under section 10(34) or not. The tribunal was pleased to conclude that, the true test for finding out whether Explanation 2(a) has been rightly invoked or not is, not simply existence of the view, but an objective finding that the Assessing Officer has not conducted, inquiries and verifications expected, in the ordinary course of performance of duties, of a prudent, judicious and a responsible public servant that the Assessing Officer is expected to be. Further, the investments in questions were held as the corpus, and, as such, the provisions of Section 13 (1)(d) were not attracted

The Assessee before us is a public charitable trust, set up in the year 1932, registered under the Bombay Trusts Act, 1950. The Assessee trust is also registered as a charitable institution under Section 12A of the Income Tax Act, 1961. The Assessee trust had filed its return of income, and its assessment, under section 143(3) of the Act, was completed determining ‘Nil’ taxable income. Subsequently, however, learned Commissioner of Income Tax (Exemptions) [hereinafter referred to as ‘the Commissioner’] issued a show-cause notice requiring the Assessee to show cause as to why this order not be subjected to revision under Section 263 of the Act. A subsequent show cause notice was also issued whereby the commissioner framed the issues on lack of inquiry by the Assessing Officer, the inadequacy of inquiry of the Assessing Officer, or taking up the pertinent line of inquiry but not following it to its logical conclusion by the Assessing Officer. Whereby the Commissioner was pleased to conclude that: –

  1. The investments in shares are covered by an exception provided in proviso (i) & (ia) to section 13(1)(d) and unless it is covered by exceptions, it results into denial of exemptions. Therefore, the AO has failed to make basic but necessary verification on this issue.
  2. It is the failure of Assessing Officer to make due verification on the basis of which jurisdiction under Section 263 can be invoked.
  3. Despite the material being available on records, which could lead to prima facie opinion that the trustees are having control over the affairs of Tata Sons Ltd., the Assessing Officer has failed to take the issue to any logical conclusion. Hence, the show-cause notice issued under Section 263 of I.T Act was reasonable and justified.
  4. In reference to Section 10, the Assessing Officer ought to have asked the assessee to demonstrate that the entire income of the Trust was applied or being applied for the purpose of the Trust. Not conducting due verification amounts to the order being erroneous and prejudicial to the interest of revenue. Similarly, adopting the pertinent line of inquiry but not taking it to the logical end also renders the order erroneous and prejudicial to the interest of revenue.
  5. Therefore order u/s 143(3) dated 30.12.2016 for the assessment year 2014-15 is erroneous in so far as it is prejudicial to the interests of the revenue. The Assessing Officer shall make a denovo assessment after proper examination of various issues.

Being Aggrieved by the stand of the Commissioner the Assessee preferred an Appeal before the Income Tax Appellate Tribunal, Mumbai whereby the tribunal was pleased to conclude that

  1. The true test for finding out whether Explanation 2(a) has been rightly invoked or not is, not simply existence of the view, but an objective finding that the Assessing Officer has not conducted, inquiries and verifications expected, in the ordinary course of performance of duties, of a prudent, judicious and responsible public servant that the Assessing Officer is expected to be.
  2. Whether an income is exempt under Sections 10(34) or under 11, it does not prejudice the interests of the revenue in any way. Accordingly, even if the order can be said to be ‘erroneous’ for any reason, it cannot be said to be ‘prejudicial to the interests of the revenue’, and, therefore, section 263 could not have been invoked on this point either. Further, the investments in questions were held as the corpus, and, as such, the provisions of Section 13 (1)(d) were not attracted.
  3. What essentially follows is that it’s not the declaration of an investment being a corpus investment but the fact of its being treated as capital and rather than using the investment for the purposes of the trust, using the income from investment for the purposes of the trust, which is determinative of its being in the nature of corpus investment. How the trust is treating the investment, i.e., in the capital field or not, is thus truly determinative of the investment being part of the corpus. Viewed thus, the mere fact of these investments being held as capital for at least more than four decades as conclusively established by the material before the Assessing Officer, and only income from these investments being applied for the purposes of the trust clearly establishes the fact of these investments being part of the corpus of the trust.
  4. A prima facie view of the Assessing Officer cannot be reason enough to decline the assessee certain tax treatment which has been given to the assessee all along for decades, but it can surely be reason enough to leave a window for appropriate action being taken against the assessee, if so warranted- and that is exactly what the Assessing Officer has done. The stand of the Assessing Officer is, in our humble understanding, quite apt and bonafide. It cannot be faulted.

The ITAT was pleased to set aside the order and judgment passed by the Commissioner “Learned Commissioner was clearly in error in invoking powers under section 263 on the ground that the Assessing Officer failed to examine the investments of the trust complying with the provisions of Section 11(5) and Section 13(1)(d) of the Act. We disapprove his action.” Further, the learned Commissioner was not justified in subjecting the assessment order to revision proceedings on the ground that the Assessing Officer did not examine the matter regarding assessee’s control over Tata Sons Ltd, and whether, by virtue of such alleged control, any of the specified persons under section 13(3) received any benefits, and whether the investments made by the assessee trust were in violation of Section 13(2)(h). Subsequently, ITAT held that  “we are unable to see any reasons for holding the suspicion that some of the interest income may be from sources that are not qualified for exemption under section 11, and, for that reason, the verification about sources of interest income is required to be done extensively. Once all these details were on record, and there is not even a suggestion that any part of interest income is not qualified for exemption under section 11, we are unable to uphold the stand of the learned Commissioner that the subject assessment order was erroneous and prejudicial to the interest of the revenue for want of verifications of interest income sources.”

[Sir Ratan Tata Trust v. Deputy Commr. of Income Tax, ITA No. 3737/Mum/2019, decided on 28-12-2020]


Akshat Malpani, Advocate, Supreme Court of India and Delhi High Court

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Sonia Gokani and N.V. Anjaria, JJ., on 28-09-2020 during the proceedings of the Vadodara Custodial Death matter once again made sure that no stone was left unturned to go to the root of the matter stating that,

            “Let no stone be left unturned and every possible attempt be made to go to the root of the matter. There must not be any scope of either laxity or soft paddling at any stage of investigation which is not only impermissible, but would also prove to be deleterious for the system.”

The petitioner had filed the petition aggrieved by the fact that his father was missing since 10-12-2019. He had further stated that he had repeatedly approached the respondent-police authorities and also gave written applications, but no heed was paid to his requests and not a single reply was received with regard to the whereabouts of the corpus, till date. He was said to have a retail business of clothes and by obtaining a parking pass from the Western Railway cycle stand, he was doing his business. It was alleged that on 09-12-2019, his father had gone to Vadodara Railway Station to get his bicycle and from there he was taken to Fatehganj Police Station for interrogation and since then, they had not heard of him. The Court on 19-06-2020 had ordered that the corpus be PRODUCED before the court, on the returnable date; however, the police could not trace the missing person. Consequently, a Fir was filed for the offences punishable under Sections 302, 201, 203, 204 and 34 of the Penal Code, 1860 against some police officers. The Court had ordered that the investigation be handed over to the CID Crime so that there was no loss of vital evidence on 05-08-2020.

The Court on 28-09-2020 in the presence of a senior officer from State CID Mr Girish Pandya assessed the road map of investigation provided by the officer where he also informed that once the Court of JMFC permits the Lie Detection Test, as and when deemed appropriate during the course of the investigation, further scientific tests also shall be requested for. The Court further said that periodical reporting shall also be needed till the whereabouts of the corpus was found with substantive and scientific proof. The specifically reminded the investigation officer that,

            “truth is the motto and object of every investigation and in the instant case, all the accused are police personnel who are supposed to be well versed with all possible tactics to overreach the process of law, extraordinary care would be expected on his part.”

The matter is scheduled to be heard on 15-10-2020 where the case diary shall be shared with the Court along with the progress in the investigation, 24 hours advance.[Sheikh Salim Shekhbabu v. State of Gujarat, R/Special Criminal Application No. 2595 of 2020, order dated 28-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Gujarat High Court: The Division Bench of Sonia Gokani and N.V. Anjaria, JJ.,  while addressing a matter for protection of a couple, stated that

By way of social policing, attempt can also be made by the officer concerned who is investigating the earlier complaint of the petitioner filed against family members of the corpus and to make an attempt to bring an amicable solution between the families.

In the present matter, Corpus was produced through Video Conferencing at District Court, Palanpur.

Additional District Judge, Robin Mogera helped the Court in specifying the girl-corpus and further the Bench noticed that the corpus expressed her desire before the ADJ to join her husband. She also confirmed that she was carrying foetus in her womb of the petitioner.

Court had protected both the petitioner and the corpus who had married against the wish and will of the girl’s parents.

Even during the  video conference it is quite visible that girl’s mother tried to emotionally blackmail by the stating that she may have to end her life if corpus continues to express her desire to join her husband.

Court requested the ADJ to make an attempt to bring an amicable solution and if he deems fit, he may refer the matter to the Mediation Center.

Protection to the couple shall continue for 4 months, Thereafter the matter shall be posted before the Superintendent of Police, Palanpur, who shall decide as to whether to continue such protection or not.

Caste system in the country is making it more and more difficult for the young people to decide their own life partner and the rigidity in the minds of adults in the family becomes the serious cause of division of human relationship.

Further the Court added that it gets difficult for the administration to handle social and emotional upheaval which eventually turn into legal battleground. Petition was disposed of in the above-view. [Niteshkumar Mulchandbhai Prajapati v. State of Gujarat, 2020 SCC OnLine Guj 897 , decided on 17-06-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of N.V. Anjaria and Ashok Kumar C. Joshi, JJ. addressed a petition wherein Writ of Habeas Corpus was sought in order to produce the daughter of the petitioner.

Matter:

Petitioner’s minor daughter was taken by respondent 4 when she was doing some labour work at a factory. Respondent 4 was also engaged in working at the same factory. Petitioner had lodged an FIR for offenses punishable under Sections 363 and 366 of Penal Code, 1860 as well as Section 18 of Protection of Children from Sexual Offenses Act, 2012., but no satisfactory reply came from the police.

In view of the above, petitioner approached the High Court through the present petition.

Further on issuance of order by this court, respondent-3 /Police was asked to take steps to trace the corpus. Later the proceedings kept adjourning due to the COVID-19 Outbreak and consequential suspension of regular court working.

In the meantime, Police succeed in tracing the minor girl with respondent 4. Girl and Respondent 4 were found to be in Panvel Talk of Ahmednagar District in the State of Maharashtra. On 18-04-2020 corpus was brought back to Gujarat. It was found that respondent 4 had taken the girl to various different places during the period.

As the Corpus was in police custody, request was made by the Additional Public Prosecutor to get the matter listed so that the girl could be produced before the Court. Thus the matter after being listed by Registry came up before the Court.

Permission was granted for the corpus to be produce through video-conferencing as, in the present circumstances it was not possible.

According to the Police Report it was noted that the girl was made to go through medical examination and the report for the same submitted to the Court. Respondent 4 had already been booked pursuant to the FIR and events thereafter.

According to the statement recorded by police, it was stated by the Corpus that she was willing to go her parent’s house.

Bench wanted to make sure of the fact that the girl was saying the above out of her own will and thus she was produced before the Court wherein the same question of her willingness was asked and Corpus stated that she was willing to go. Parents of the Corpus were also asked about their willingness to take their daughter to which their response was in positive.

Court directed the parents of the Corpus to take proper care their minor daughter, in view of the stated corpus was permitted to go with her parents. Police authorities were also directed to ensure safe passage of the corpus and her parents.

To ensure the well being of the Corpus, authorities concerned were erected to depute a Social Welfare Officer from the District and the said officer shall visit the house of corpus and report before ether competent authority after one month.

Petition disposed in the above terms. [Atubhai Nanjibhai Baraiya v. State of Gujarat, 2020 SCC OnLine Guj 506 , decided on 21-04-2020]