Case BriefsSupreme Court

   

Supreme Court: In three appeals against an order directing separate zone of consideration for promotion of Scheduled Caste (SC)/Scheduled Tribe (ST) candidates to the post of Superintendent in Customs and Central Excise Commissionerate (CEC) from the post of Inspector, the division bench of Hemant Gupta* and Vikram Nath, JJ. has observed that the Tribunal and the High Court answered a question that did not arise. Therefore, the Court finds their orders clearly erroneous and not sustainable in law as the orders passed for regular promotion by extending the zone of consideration did not arise.

In this case three appeals were filed by the Government arising out of an order passed by the Central Administrative Tribunal (CAT), affirmed by the High Court of Delhi and High Court of Punjab & Haryana, directing separate zone of consideration for promotion of SC/ST candidates to the post of Superintendent in Customs and CEC from the post of Inspector and further for a similar direction by the High Court of Delhi but in respect of Indo-Tibetan Border Police for promotion to the post of Assistant Commandant from the post of Subedar Major Stenographer.

The respondents were aggrieved that there is a backlog of vacancies for the post of Superintendent which have not been filled up, because the candidates are not available within the zone of consideration. Therefore, to fill up the 29 posts of Superintendent, it was prayed that a separate zone of consideration be created for the ST candidates so that the vacancies in the cadre of Superintendent meant for them could be filled up.

The Court took note of the Office Memorandum dated 24.12.1980 which contemplated that the zone of consideration can be extended to five times the number of vacancies and the ST candidates (and not any other) coming within the extended field of choice, should also be considered against the vacancies reserved for them. It is, thereafter, an Office Memorandum was issued on 30.4.1983 for regulating ad-hoc promotions for consideration of cases for SC and ST candidates with reference to an earlier Office Memorandum dated 6.4.1979. Moreover, another Office Memorandum was issued on 30.9.1983 pertaining to ad-hoc promotion by the Department of Personnel and Administrative Reforms, wherein the zone of consideration for SC and ST candidates was restricted up to five times.

The Court further took note of the ruling in Basudeo Anil v. Union of India, 2000 SCC OnLine SC 106, wherein the Court dealt with Office Memorandum dated 30.4.1983 and 30.9.1983 and it was held that the condition of restricting the number of SC and ST candidates to five times of the total number of such vacancies as provided in Office Memorandum dated 30.9.1983 is illegal Thus, the Office Memorandum dated 30.9.1983 was withdrawn on 15.3.2002 in view of the judgment of this Court in Basudeo Anil (supra) and it was held that ad-hoc promotions would be regulated as per instructions dated 30.4.1983.

The Court viewed that the Tribunal and the High Courts have missed the real controversy. The Government had issued an Office Memorandum dated 26.8.2004 to fill backlog vacancies reserved for SC and ST in promotion quota as a special drive and it was not relating to the Customs and Central Excise Commissionerate(C&CEC) or the Indo Tibetan Border Police (ITBP) but to all the employees of the Central Government.

Further, the candidates in the Office of C&CEC submitted representations for consideration for promotion to the grade of Superintendents, which were rejected on 4.2.2005 as the officers had joined Central Excise (Delhi Zone) as Inspectors on inter-Commissionerate on transfer basis in 2003 and were too juniors to be included even in the extended zone of consideration. Thus, the Tribunal has not examined the question of seniority on account of the Inter Commissionerate transfer, and the order dated 4.2.2005 was set aside, and a direction was issued to grant same treatment to SC/ST candidates in ad hoc promotions as well as in regular promotions. Further, after this decision of the Tribunal, Department of Personnel and Training (DoPT) issued a revised guideline for optimizing the size of zone of consideration.

The Court observed that there are three situations of promotion required to be examined. One is backlog vacancies for which a memorandum dated 26.8.2004 was issued. Second is ad hoc promotions for which a Memorandum dated 30.4.1983 was issued followed by 30.9.1983 and 7.9.2000. Third is for regular promotions wherethe Office Memorandum has been issued on 24.12.1980, 22.4.1992 and 6.1.2006 wherein zone of consideration was prescribed keeping in view the number of vacancies which are to be filled up.

The Court further observed that the candidates challenged the Office Memorandum dated 6.1.2006 which is in relation to regular promotions. There is no parity between backlog vacancies covered in the Office Memorandum dated 26.8.2004 and the regular promotion covered in Office Memorandum dated 24.12.1980 and 6.1.2006. Therefore, the Tribunal as well as the High Court have completely missed the issue involved in the subsequent applications filed by the candidates. Further, the grievance of the candidates was only filling up of backlog vacancies and not regular or ad hoc promotions and the Tribunal and the High Court had missed the distinction between ad hoc promotions and the regular promotions to be made through the Departmental Promotion Committee (DPC).

The Court viewed that the validity of Office Memorandum dated 24.12.1980 has been upheld in P. Sheshadri v. Union of India, (1995) 3 SCC 552 and since its validity has been upheld, the validity cannot be put to test again based on the memorandum for filling up the backlog vacancies or ad hoc promotion.

The Court observed that the distinction between a special drive for filling up backlog vacancies and regular promotion to candidates both from the reserved and the unreserved categories, is too obvious, while filling up vacancies by way of promotion on regular basis, a DPC is constituted and the profile of the candidates coming within the zone of consideration is prepared, but in a special drive for filling up the backlog vacancies meant for reserved category candidates, such an exercise become redundant, as all candidates who will be considered for promotion in a special drive, will invariably belong to the same reserved category, as otherwise it will cease to be a special drive. Similarly, the exercise undertaken to fill vacancies on an ad hoc basis stands on a different footing from the exercise undertaken for the grant of regular promotions.

Moreover, the Court held that “the High Court as well as the Tribunal fell into error on two aspects, by not addressing the issues that, whether there was a special recruitment drive for filling up of backlog vacancies and whether there was a failure to consider the case of the respondents”, and applied the standard meant for ad hoc promotions to the case of regular promotions, though the case of the candidates was for unfilled backlog vacancies. This fundamental error of focus has resulted in the Tribunal and the High Court answering a question that did not arise. Therefore, the Court viewed that the orders of the High Courts are clearly erroneous and not sustainable in law, as the orders passed for regular promotion by extending the zone of consideration did not arise.


[Union of India v. Gopal Meena, Civil Appeal No. 3314 of 2010, decided on 10.08.2022]

*Judgment by: Justice Hemant Gupta.

High Court Round UpLegal RoundUp

The High Court Roundup brings a curated list of the top stories of the month to ensure readers do not miss any important updates. This month’s roundup covers the stories of Rights of LGBTQIA+, Bigamy & Talaq under Muslim Law, Non-payment of GST, Deceased’s right to dignity, WhatsApp’s Privacy Policy, Trademark Infringements, and many more:

Allahabad High Court

Top Story—Deceased’s Right to Dignity

The Court in Suo-Moto v. State of U.P., 2020 SCC OnLine All 1088 while dealing with the extremely sensitive matter of Hathras gangrape where dead body of the victim was taken to her native village but surprisingly and painfully enough it was not handed over to the family members so that the last rites of the deceased victim could be performed as per prevalent customs and religious inclinations in a decent and dignified manner but it was cremated with the help of some other persons at about 2- 2.30 a.m.

“The right of dignified life under Article 21 of the Constitution of India is not only available to a living person but also to the ‘dead’. These rights are not only for the deceased but, his family members also have a right to perform last rites as per religious traditions.” Read more…

On the trend of Compromise

Allahabad High Court points out the trend of compromise after receiving the compensation from the State; Suggests disbursement only after conviction. The Court opined,

“Taxpayers’ money is being misused in this process. It would be appropriate to disburse the compensation only on conviction of the accused and not filing of the FIR and submission of the charge-sheet.” Read more…

On Trade Tax

Allahabad High Court upholds order by Trade Tax Tribunal holding insulated glass as taxable unclassified commodity @ 10%. Read more…

On Sidhique Kappan Bail

Charge-sheet and documents adduced prima facie point towards guilt; Allahabad High Court denies bail to journalist Sidhique Kappan [Hathras gang-rape row]. Read more…

On Age Relaxation in Recruitment

Over-aged candidates can neither claim participation in selection process nor seek conduct of recruitment every year as a matter of right. Read more…

On PIL in Service Matters

“PIL in service-related matters ought not to be entertained”; Allahabad High Court dismisses PIL seeking increase in retirement age of PwD. Read more…

On Social, Moral Responsibility to Maintain Wife

Allahabad High Court | Social, Legal and Moral Responsibility of a man to maintain his wife; Appeal dismissed. Read more…

Andhra Pradesh High Court

On Abetment of Suicide

Subba Reddy Satti J. granted anticipatory bail to the Chief Executing Officer (applicant-accused) as on perusal of complaint there was no sign of instigation and abetment and mere allegation of harassment will not attract offence under Section 306 Penal Code, 1860 (‘IPC’) unless such actions compelled the victim to commit suicide. Read more…

Bombay High Court

Top Story—Environment Protection

While perusing the newly framed Policy for Environmentally Safe Making and Immersion of Idols/Tazia and its Enforcement (‘the Policy’), as drafted by Maharashtra Government’s Environment and Climate Change Ministry, the Division Bench of A.S. Chandurkar and Urmila Joshi-Phalke, JJ., observed that the presented Policy which will be operational for this year (2022), must be given adequate publicity so as to create awareness in the public. The Bench also expressed its hope that the local authorities will also take necessary steps to dutifully follow the Policy, so that it achieves its intended targets for this year. Read more…

On Unhygienic Sanitary Conditions of Schools

DLSA’s to conduct surprise inspections in Government schools over unclean and unhygienic sanitary conditions. Bombay High Court takes cognizance of a PIL alleging unclean and unhygienic state of affairs in the washrooms and toilets for the young girl students in Government aided schools. Read more…

On wrongful Arrest of Nigerian National

Bombay High Court grants bail to Nigerian national who spent 2 years in jail on NDPS charges due to a typing error in forensic report; asks State to come up with compensation proposal. Read more…

On Abetment to Suicide

Sudden reaction of a 19-year-old boy to the news of pregnancy, May fall short of the essential ingredients required to form the offence of abetment to suicide: Bombay High Court Read more…

On Rape

Once prosecution has proved the offence of rape, there is no reason for the Trial Court to award a lesser sentence than what the statute prescribes: Bombay High Court Read more…

On SARFAESI

S. 14 of SARFAESI Act empowers the Designated Authority only to assist secured creditors in taking possession of secured assets and nothing more: Bombay High Court Read more…

Calcutta High Court

Top Story—Non-payment of GST

Calcutta High Court stays any coercive action until final decision in matter of arbitrary action of State for non-payment of GST on contracts executed prior GST regime. Md. Nizamuddin, J. directed the respondents authority concerned to consider neutralizing the impact of unforeseen additional tax burden on Government contracts since the introduction of GST w.e.f. 01-07-2017 for ongoing contract awarded before the said date and to update the State SOR incorporating applicable GST in lieu of inapplicable West Bengal VAT henceforth. Read more…

On Arbitration

Conduct of Parties — not a substitute for an arbitration agreement| Calcutta High Court holds the court cannot substitute arbitration agreement with conduct of parties while exercising powers under Section 11 of the Arbitration and Conciliation Act, 1996. Read more…

Illegal procedure for appointment of Arbitrator does not render Arbitration agreement illegal in toto; Guiding Principles for Appointment of Arbitrator reiterated Read more…

Chhattisgarh High Court

On Election

Chhattisgarh High Court declares election null and void for non-disclosure of criminal antecedents, including acquittal in criminal case. In a case where an election was declared null and void on the grounds of non-disclosure of criminal antecedents by the winning candidate, Deepak Kumari Tiwari J dismissed the revision petition being devoid of merit. The Court stated that non-disclosure of criminal antecedents amounts to undue influence and interferes with the free exercise of electoral right. Read more…

Delhi High Court

Top Story—Anti-competitive WhatsApp Terms

Delhi High Court upholds CCI’s direction to investigate alleged anti-competitive WhatsApp Terms of Service and Privacy Policy, 2021; Prima facie case established to investigate; FB a proper party. The appeals were filed by WhatsApp and its parent company Facebook challenging the jurisdiction of Competition Commission of India (CCI) to direct investigation into the 2021 Terms of Service and Privacy Policy of the Appellant on the ground that it violates the provisions of the Competition Act, 2002, when the matters arising from the same issue is pending before Supreme Court. Read more…

On Copyright Infringement

Delhi High Court denies injunction against News Laundry Media on allegations of copyright infringement, defamation and commercial disparagement by TV Today Network. Commenting on commercial disparagement, the Court said,

“Commercial Disparagement would occur when one player in the field derides a rival and belittles or discredits or detracts from the reputation of such a rival in respect of its products, services or business. While claiming to be the best, any statement about a competitor’s goods, which could be untrue or misleading and is made to influence or tend to influence the public, would amount to disparagement”. Read more…

On False Rape

Delhi High Court reprimands filing false FIR alleging rape charges; Directs woman to work at blind school; Directs man to plant 50 trees as punitive measure. Read more…

On Trademark Infringement

Theo recognizes Theobroma as owner and proprietor of mark “THEOBROMA”; Settlement terms agreed between parties. Read more…

Delhi High Court injuncts Royal Champ from using Royal Stag/ Seagram marks; Similar label also amounts to copyright infringement; Directs Rs 20 lakh as damages . Read more…

Delhi High Court grants ad-interim injunction against Bikaner’s Madhav Namkeens having deceptively similar logo as of Pepsico’s Lays. Read more…

Delhi High Court injuncts myshoeshop from violating trademark rights by selling first copy shoes of NB Device mark as well as Adidas, Nike, Louis Vuitton etc. Read more…

On Flipkart’s “Latching On” Feature

Delhi High Court restrains Flipkart from allowing third-party sellers to ‘latch on’ to mark ‘V Tradition’; Directs to ensure ‘Latching On’ feature is disabled. Read more…

On Chinese Manjha

Delhi High Court denies complete ban on kite flying but directs to comply directions already in place against use of Chinese Maanjha. Reade more…

On Non-compliance of Sports Code

Compliance with Sports Code non-negotiable; Delhi High Court warns IOA of derecognition if compliance with Sports Code is not made; Temporary CoA constituted. Read more…

On Criminal Liability of Intermediary

Intermediary entitled to claim protection u/s 79 IT Act for criminal liability unless ‘active role’ is disclosed; Delhi High Court quashes FIR against Flipkart. Read more…

On Legitimate Expectations of Students

Delhi High Court grants relief to a student seeking admission in BITS Pilani after CBSE violates ‘legitimate expectation of the students’. Read more…

On POCSO

Judicial scrutiny of date of birth for establishing consensual sexual relation not necessary; Delhi High Court grants bail in light of accused being honey trapped Read more…

Gujarat High Court

Top Story—On Right to Medical Claim

Gujarat High Court reiterates right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order; Reimbursement directed. The Court stated,

“The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds.” Read more…

On Electricity

‘Occupier’ of the land cannot be denied electricity connection only because land is in dispute. Read more…

On Pharmacy Diploma

Students of Diploma in Pharmacy Course can’t be denied registration as Pharmacists on Council’s failure to approve medical stores for training. Read more…

Himachal Pradesh High Court

Top Story—Family Pension to Second Wife

In a petition related to family pension, Jyotsna Rewal Dua, J has held that the second wife of a deceased employee is not entitled to family pension under the Central Civil Services (Pension) Rules, 1972 unless the personal law of the deceased employee allows more than one subsisting marriage. Read more…

On MV Compensation

Himachal Pradesh High Court | Inability to produce documentary evidence of deceased’s income may not justify adoption of lowest tier of minimum wage for computing Motor Vehicle Accident compensation. Read more…

Jammu & Kashmir and Ladakh High Court

Top Story—Right to Property

While deciding the instant petition wherein the issue was that whether misuse of a building from residential to commercial or vice versa in violation of the permitted land use as per the master plan would fall within the ambit of unauthorized ‘erection or re-erection’; the Division Bench of Wasim Sadiq Nargal and Tashi Rabstan, JJ., observed,

“In a democratic polity governed by the rule of law, the State by no stretch of imagination, can deprive a citizen of his/her property without the sanction of law, besides complying with the procedure envisaged in the statutory provision.” Read more…

On Matrimonial Crimes

Courts must carefully scrutinize the allegations of matrimonial crimes against a husband’s relatives. Read more…

On Compassionate Appointments

Compassionate Appointments are not for conferring status on a family; Jammu and Kashmir and Ladakh High Court holds an applicant has no right to claim a compassionate appointment in a particular class or group and it is not for conferring status on the family. Read more…

Jharkhand High Court

On Renewal of Competency Certificate

Past record of competent person for renewal of competency certificate held to be a relevant consideration for renewal; Petition dismissed. Read more…

On Income Tax

Liability cannot be fastened upon the company for delay in TDS when it had taken steps within time. Read more…

Karnataka High Court

Top Story—Eidgah Maidan Controversy

In a case where the State has filed an appeal to seek modification in an interim order passed by Single Judge giving permission for using Eidgah Maidan, the land under challenge for title, for celebrating Independence Day/Republic Day or as a public playground or for offering prayers by Muslim community only in Ramzan and Bakri Eid festivals, a Division Bench of Abhay Shreeniwas Oka CJ., and Vishwajith Shetty J. permitted the State Government to consider applications filed by organizations seeking use of the land in question for holding religious and cultural activities. Read more…

On Bhang under NDPS Act

In a case where the applicant-accused seeks bail on being apprehended by police, having possession of Ganja and Bhang together, K Natarajan, J. granted bail to the applicant as Bhang will not be considered along with Ganja to measure commercial quantity. The Court held that until forensic science lap report does not confirm that Bhang is prepared out of charas or ganja, it is not safe to conclude the same. Read more…

On Azan & Fundamental Right to Faith

A Division Bench of Alok Aradhe CJ., and S. Viswajith Shetty, J., held that azan or the contents of azan does not violate fundamental rights of petitioner of any person from a different faith. The use of loudspeakers, however, must be ensured to be within permissible limits from 10pm to 6 am in accordance with law. Read more…

On Wrongful Arrest

Karnataka High Court appalled to see a case of wrongful arrest as fathers’ name was similar; Directs DGP to issue SOP/Guidelines if not in place; Compensates aggrieved. Read more…

On POCSO

Pulling down pants of kid forcefully as a punishment measure; Karnataka High Court denies relief u/s 482 CrPC to the female teacher. Read more…

On Minimum Wage

Whether Head cooks and cooks employed under Mid-Day Meal Scheme covered under Minimum Wages Act, 1948? Karnataka High Court analyses Read more…

Kerala High Court

Top Story—Mental Cruelty

In a divorce case, Anil K. Narendran and C. S. Sudha, JJ., held that constant and repeated taunts by the husband towards his wife that she is not a wife of his expectations; the comparisons with other women, etc. would certainly be mental cruelty which a wife cannot be expected to put up with. Read more…

On Transgenders Right to Participation in Sports

In a case where a transgender person was declined participation in District Judo Competition, V.G. Arun, J., held that if the organisers have not made arrangements for participating transgenders, they have to allow the petitioner to participate in her chosen category. Read more…

On Talaq and Bigamy under Muslim Law

In a case relating to talaq as per Muslim personal law and bigamy, A. Muhamed Mustaque, J. held that the Family Courts have no jurisdiction to restrain a person from pronouncing talaq or conducting a second marriage as per personal law. The Court remarked,

“The Court has no role in restraining the parties invoking their personal law remedies. The Court should not forget the mandate of Article 25 of the Constitution, which not only allows one to profess religion but also to practice.” Read more…

On Road Safety

Can’t let the roads of Kerala be a killing field; Kerala HC issues directions to NHAI and District Collectors to ensure the roads are craters & potholes free. Read more…

On Medical Termination of Pregnancy

Kerala HC allows a 14-year-old girl to get medical termination of her 28-week pregnancy. Read more…

On Offence of Insulting National Flag

Kerala HC grants anticipatory bail to BJP State General Secretary accused of insulting National Flag by holding it upside down. Read more…

On Rights of PWD

Kerala HC issues notice to Centre & State in a PIL seeking extension of facilities to every person with disability in need of special assistance irrespective of percentage of disability. Read more…

Madhya Pradesh High Court

Top Story—Order XLVII Rule 9

The Division Bench of Ravi Malimath, CJ. and Vishal Mishra, J. dismissed a second review petition holding that pursuant to the provision under Order XLVII Rule 9 Civil Procedure Code, 1908 (CPC), a review of an order passed in a review petition is not maintainable. Read more…

On Illegal Detention

Madhya Pradesh High Court directs State to pay 3 lacs as compensation for illegal detention; Registrar to conduct an inquiry Read more…

On Modification of Criminal Charges

Madhya Pradesh High Court| Charge of Murder added at the time of framing of charge based on Hospital’s MLC can be altered only after further examination. Read more…

Madras High Court

Top Story—Medical Examination for Impotency

In a case where husband filed for annulment of marriage alleging suppression by wife regarding her hormonal imbalance and irregular periods resulting in non-consummation of marriage, R N Manjula J. quashed Family Court’s ruling that directed the wife ‘revision petitioner’ to undergo medical examination of the same and even went ahead to direct medical examination of her genitals which was beyond the scope of the original petition. Read more…

On Removal of Husband from Matrimonial Home

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

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

On Virtual Wedding

Virtual wedding would meet the requirements of law under S. 12 of Special Marriage Act, 1954. Read more…

On Doctrine of Substantial Compliance

Madras High Court applies doctrine of ‘substantial compliance’ to determine implications of limitation period in the Customs Act, 1962. Read more…

On Nalla Thangal Syndrome

Madras High Court condemns a scornful society that sees misfortune with the birth of a girl child and reduces punishment in the instance of ‘Nalla Thangal Syndrome’. Read more…

On Colonial Slavery

Extracting household work by trained uniformed Police personnel in the residences of the higher Police officials; Madras High Court calls it ‘colonial’ and slap on Constitution and democracy. Read more…

On Orderly System

‘Orderly system’ unconstitutional: Madras High Court directs Tamil Nadu government to eradicate it completely in four months. Read more…

On Appointment of Archaka

Madras High Court holds the temple or group of temples which were constructed as per the Agamas would be governed by the custom and practice, not only in respect of the worship of the deity, but in all respects, which includes even the appointment of Archakas, and not by the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020. Read more…

On Rights of LGBTQIA+

Madras High Court| LGBTQIA+ community sidelined from society’s mainstream for too long; Time for Tamil Nadu Government to frame guidelines to protect their rights. Read more…

On Criminal Procedure

PT warrant can never be converted into regular warrant in a case where the accused person is already on bail; opportunity should be given to the accused to explain his non-appearance Read more…

Meghalaya High Court

On Consensual Sex with Minor Wife

W. Diengdoh, J. allowed a petition where a man was arrested under the provisions of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) for allegedly having ‘consensual sex’ with his minor wife. The Court opined that it would be an injustice to separate or to divide a well knitted family unit. Read more…

Manipur High Court

On Accused’s Right to Dignity

In a case where the criminal appeal was pending and the applicant convicted under Section 6 of the Protection of children from sexual offences Act, 2012 (POCSO Act) filed an application for the suspension of sentence, on the ground of ill-health, M.V. Muralidaran, J. observed,

“Under-trial prisoner’s right to life does not diminish even a wee bit when in jail as an accused/convict for an offence and such person’s health concerns have to be taken care by the State and if not done so, by the judiciary. The right to dignity of an accused does not dry out with the Judges. Rather, it subsists beyond the prison gates and operates until his last breath”. Read more…

Orissa High Court

On Tortious Liability of State

Unfortunate death of 7-year-old girl by collapse of newly constructed kitchen wall in school; Orissa High Court directs compensation to the family of the deceased. The Court noted,

“The negligence of the State authorities in using defective materials to construct a kitchen on the school premises has already been established during the enquiry. The death of the young child was totally avoidable. The responsibility for death definitely rests with the State. The death would not have occurred if all the safety measures, that were instructed to be put in place by the State, had been strictly followed.” Read more…

Punjab and Haryana High Court

Top Story—Downgrading of VIP security Cover

Withdrawal/Downgrading of VIP security cover: Punjab and Haryana High Court directs State to make fresh assessment of security threats; Provide one security personnel until then. The Court said,

“Security issue is not a static phenomenon, rather it is a dynamic process. The security reviews have to be done on a periodical basis by assessing the security threat of the protectees with the passage of time on the basis of official inputs provided by the different agencies including State and Central agencies”. Read more…

On Arbitration

Merely showing existence of another reasonable interpretation not sufficient to allow for interference; Punjab and Haryana HC refuses to interfere with arbitration award. Read more…

On Co-ownership

Possession of joint land by one co-owner valid in absence of proof showing disagreement between other co-owners. Read more…

Rajasthan High Court

On Arms License

Vijay Bishnoi, J. held the appeal filed by District Magistrate before Divisional Commissioner under Section 18 of Arms Act, 1959 challenging the issuance of arms license in favour of the petitioner who was the holder of license, as non — maintainable. The Court noted that a bare perusal of Section 18 Arms Act, 1959 clearly reveals that there is no provision where appeal can be entertained under Section 18 of the Arms Act against the order of issuance of arms license. Read more…

Tripura High Court

On Allotment of Land

In suit for recovery of possession of land, the Tripura High Court observed that,

“It is not for this Court to decide the validity of the allotment of land by the Government in favour of the respondents in this second appeal. If there is any violation of conditions or attraction of disqualifications, it is for the appropriate authorities to look into the matter.” Read more…

On Conviction

Mere presence of the accused person and last seen of the offence cannot draw an inference to committing of the crime ; Conviction reversed Read more…

On Employees’ Dues

Tripura High Court directs TSECL to pay all the cumulative dues to employee who suffered accident while discharging duty. Read more…

Uttaranchal High Court

On Service Rules

Uttaranchal High Court holds non-communication of all the Service Rules does not indicate that there are no Rules. The Division bench of Vipin Sanghi, C.J., and R.C. Khulbe, J., had held that merely because the communication sanctioning a post does not indicate the promotion rules, does not mean that there are no Rules framed or applicable for promotion, requiring minimum service in the feeder cadre. Read more…


*Kamini Sharma, Editorial Assistant has put this report together.

Legislation UpdatesRules & Regulations

On 27-08-2022, the Central Government Supreme Court Judges (Amendment) Rules, 2022 to further amend the Supreme Court Judges Rules, 1959.

Key points:

  • Domestic Help, Chauffeur, Secretarial Assistant shall be deployed with a Retd. Chief Justice of India and Retd. Judges of Supreme Court during their lifetime from the establishment of the Supreme Court or a High Court with full pay and allowances admissible to regular employees of the Supreme Court.
  • A retired Chief Justice shall be entitled to a security cover round the clock at residence in addition to round the clock personal security guard for a period of five years from the date of retirement.
  • A retired Judge shall be entitled to a security cover round the clock at residence in addition to round the clock personal security guard for a period of three years from the date of retirement.
  • A retired Chief Justice shall be entitled to a rent free Type-VII accommodation at Delhi (other than the designated official residence) for a period of six months from the date of retirement.
  • A retired Chief Justice or a retired Judge shall be entitled to protocol to extend courtesies at ceremonial lounges at airports.
  • A retired Chief Justice or a retired Judge shall be entitled to a residential telephone free of cost and reimbursement of telephone call charges of residential telephone or mobile phone or broadband or mobile data or data card not exceeding to Rs.4200/- per month plus taxes as applicable:
  • The post retiral benefits shall be admissible to the retired Chief Justice or the retired Judge if no such facilities are availed from any High Court or from any other government body where the retired Chief Justice or a retired Judge has taken up any assignment after retirement.
Case BriefsHigh Courts

Gauhati High Court: The single Bench of Michael Zothankhuma, J., disposed of the writ petition and held that a cousin cannot be included within the definition of ‘member of family’ under the provisions of Assam Public Services (Preferential Appointment) Rules, 1999 (hereinafter as APS Rules, 1999).

A writ petition was filed by the petitioner stating that he was the cousin of the deceased Gajendra Bijoy Rabha, who was a martyr in the Assam Movement and hence, was entitled to be given a preferential appointment as per the provisions laid down of the Assam Public Services (Preferential Appointment) Rules, 1999.

Dismissing the petition, the Bench observed that under Rule 2 (d) of the APS Rules, 1999, a preferential appointment is provided to only certain categories of family members which includes a son or daughter of the spouse or a brother or sister of a martyr or a physically disabled person. Therefore, the Bench held that a cousin cannot be included within the definition of ‘member of family’ under the APS Rules,1999. Hence, the petitioner was not entitled to preferential appointment in Assam Public Services as per the provisions of the rules.

[Jackie Rabha v. Principal Secretary to the Govt of Assam, 2022 SCC OnLine Gau 1074, decided on- 18-07-2022]


Appearances

For the Petitioner: MD B Islam, Advocate
For the Respondent: GA, Assam

Case BriefsSupreme Court

Supreme Court: On being apprised of 30 years-long delay in execution of an Arbitration Award, the Division Bench comprising M.R. Shah and B.V. Nagarathna, JJ., directed the Chief Justice of Allahabad High Court to constitute a Special Arrears Committee to address the issue of the long delay in commercial cases. The Court also directed the State government to consider constituting additional commercial courts in the four districts of Gautam Budh Nagar, Meerut, Agra, and Lucknow.

In the instant case, the Arbitration Award had been passed in the year 1992 and the execution petition was filed in the year 2003, however, much to the Court’s surprise, the matter was still pending. Calling it a glaring example of frustrating the arbitration proceedings under the Arbitration Act, the Bench expressed,

“It is very unfortunate that even after a period of 30 years, the party in whose favour the Award is passed is not in a position to enjoy the fruit of the litigation/Award. Even the execution petition is also pending for more than 19 years. This is a very sorry state of affairs that even the execution proceedings to execute the Award passed under the Arbitration Act are pending for more than 20 years.”

Noticing that the statutory mandate requires the commercial dispute to be decided and disposed of at the earliest, i.e., within a year, the Court, by an earlier order, had held that if the Award, under the Arbitration Act, is not executed at the earliest, it will frustrate the purpose and object of the Arbitration Act as well as the Commercial Courts Act.

By an order dated 01-04-2022, the Court had asked the Allahabad High Court to submit a report indicating the status of pendency of commercial cases. Pursuant to the said order the High Court had filed the Status Report with respect to the pending execution petitions in the State of Uttar Pradesh, to execute the Awards, both under the Arbitration Act, 1940 and under the Arbitration and Conciliation Act, 1996 as well as the statement showing the total number of applications pending under Section 34 of the Act, 1996 in the State as well as the statement showing the total number of execution petitions to execute the Award both under Section 37 of the Arbitration Act, 1940 and under the 1996 Act pending in the Commercial Courts in the State.

The Status Report revealed the following:

  • About 30,154 execution petitions are pending with various District Courts/ Regular Courts in the State of U.P. and the oldest one is of the year 1981.
  • Similarly, in the Commercial Courts, 13,367 execution petitions/ applications are reported to be pending and the oldest one seems to be of the year 2002.
  • As on 31-03-2022, approximately 10,436 execution petitions/applications under Section 34 of the Arbitration Act are reported to be pending before the Regular Courts (non-commercial courts) with the oldest one of the year 1987.
  • About 1,209 execution petitions/applications are pending before the Commercial Courts and the oldest one seems to be of the year 1998.

The Court had asked the High Court to prepare a road-map and to take a call as to how the problem of the pendency of the execution petitions/applications to execute the Awards passed under the 1940 Act and 1996 Act and the applications under Section 34 are decided/disposed of at the earliest, so that the ultimate object and purpose of the Arbitration Act and Commercial Courts Act is achieved. Additionally, the Court requested the Chief Justice of the High Court to constitute a Special Arrears Committee of the Judges of the High Court and invite the suggestions and formulate a mechanism to tackle with the problem of arrears.

The Court remarked,

“If, the commercial disputes are not decided/ disposed of at the earliest, it may ultimately affect the economy of the country and may spoil the business relations between the parties.”  

However, no committee was constituted in spite of clear directions by the Court and the Court had to adjourn the matter to next day. Similarly, no sincere efforts were shown by the High Court in preparing the required road map, which made the Court to observe,

“It is reported that now the Special Arrears Committee has been constituted only yesterday.  Our earlier order dated 28.04.2022 was very clear and there was no ambiguity at all. Despite the above, for whatever reason, the Special Arrears Committee has not been constituted till yesterday and the same has been constituted only after yesterday’s hearing. We were not satisfied at all with the report submitted by the High Court yesterday (18.05.2022) and the road-map and the action proposed in tackling the arrears so far as the commercial matters are concerned.”

Interestingly, the Court noted that from the constitution of the Special Arrears Committee to make suggestions and formulate a mechanism to tackle with the problem of arrears, only the judges from the Allahabad Bench of the High Court were involved and none of the Judges from the Lucknow Bench was part of the Committee. Therefore, the Court directed the Chief Justice to reconstitute the Committee by including the judges from Lucknow Bench as well, since a large number of commercial matters were pending within the jurisdiction of the Lucknow Bench also.

On the suggestions to create additional commercial courts in the four districts of Gautam Budh Nagar, Meerut, Agra and Lucknow where the pendency of such cases is comparatively larger, the Court directed the State Government to consider the proposal and take a final decision within a period of four weeks.

The matter is listed on 12-07-2022 for further hearing.[Chopra Fabricators and Manufacturers Pvt. Ltd. v. Bharat Pumps and Compressors Ltd., 2022 SCC OnLine SC 711, order dated 19-05-2022]


Appearance by:

For Petitioner(s): Mr. Rakesh U. Upadhyay, Advocate Mr. Rishabh Kumar Pandey, Advocate Ms. Aarti Upadhyay Mishra, AOR Mr. Pawanshree Agrawal, AOR Mr. Aneesh Mittal, Advocate Ms. Soumya Dhankani, Advocate Mr. Shaunik Gupta, Advocate

For Respondent(s): Mr. Nikhil Goel, Advocate Mr. Yashvardhan, Advocate Mr. Apoorv Shukla, AOR Ms. Smita Kant, Advocate Prabhleen Kana, Advocate Ms. Kritika Nagpal, Advocate Mr. Nitin Mishra, AOR Ms. Madhavi Divan, ASG Ms. Garima Prashad, Sr. Advocate


Kamini Sharma, Editorial Assistant has reported this brief.

Appointments & TransfersNews

Supreme Court Collegium has recommended transfer/repatriation of Judges of High Courts, as mentioned below:

S. No.

Name of the Judge

 

S/Shri Justice

Present HC

HC where transferred or repatriated

1. Ahsanuddin Amanullah Andhra Pradesh

 

Patna
2. Chitta Ranjan Dash Orissa Calcutta
3. Subhasis Talapatra Tripura Orissa
4. Lanusungkum Jamir

 

Manipur Gauhati
5. Dhiraj Singh Thakur

 

Jammu and Kashmir and Ladakh Bombay
6. Purushaindra Kumar Kaurav

 

Madhya Pradesh Delhi

Supreme Court Collegium

Appointments & TransfersNews

President appoints Justice Sabina, senior-most Judge of the Himachal Pradesh High Court, to perform the duties of the office of the Chief Justice of that High Court, with effect from 25.05.2022 consequent upon the retirement of Shri Justice Mohammad Rafiq, Chief Justice, Himachal Pradesh High Court.


Ministry of Law and Justice

[Notification dt. 23-5-2022]

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Anuja Prabhudessai, J., observed that touching private parts and kissing on the lips of a minor would not constitute to be an offence under Section 377 of Penal Code, 1860.

An application was filed by the applicant who was facing trial for offences under Sections 377, 384 and 420 of the Penal Code, 1860 and Sections 8 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The complainant alleged that, they found that some money from the cupboard was missing and upon inquiry, they came to know that the victim used to play online OLA PARTY game and he had paid the money to the applicant to recharge the said gaming App. The victim also told his parents that the applicant had sexually abused him.

As per the statement of the victim as well as the FIR report prima facie indicated that the applicant had touched the private parts of the victim and had kissed his lips.

Hence, in Court’s opinion, the above would not prima facie constitute offence under Section 377 of the IPC.

The offence under Sections 8 and 12 are punishable by maximum imprisonment upto 5 years. The applicant was in custody for almost one year and the charge has not yet been framed and trial not likely to commence in the immediate future.

Therefore, in view of the above applicant was granted bail on the following terms and conditions:

  • Furnish P.R. Bonds in the sum of Rs 30,000 with one or two solvent sureties in the like amount.
  • Applicant shall report once in two months on every 1st Monday
  • Applicant shall not interfere with the complainant and the other witnesses and shall not tamper with the evidence or attempt to influence or contact the complainant, witnesses or any person concerned with the case;
  • Applicant shall keep the trial Court informed of his current address and mobile contact number and/or change of residence or mobile details, if any, from time to time.
  • Applicants shall co-operate with the conduct of the trial and attend the trial Court on all dates, unless exempted.

In view of the above terms, bail application stands disposed of. [Prem Rajendra Prasad Dubey v. State of Maharashtra, Bail Application No. 3731 of 2021, decided on 5-5-2022]


Advocates before the Court:

Ms. Aneeta Vasani for the Applicant.

Ms. Rutuja Ambekar, APP for the State.

Mr. Praveen Kamble i/b. Mr. Pramod Kumbhar for the intervenor.

Legal RoundUpWeekly Rewind

 


Top Story


 Thane Court

Man allegedly cheats a woman by suppressing material fact of him being homosexual: Will Thane Court grant him bail? Read

Noting the fact that a man suppressed the material fact of his private life before marriage i.e., about him being a homosexual, Rajesh S. Gupta, J., found that, the whole life of a young girl had been spoiled due to the material suppression, if the same would have been shared prior to the marriage then the consequence would be different.

Bench expressed that,

No doubt, every individual has its dignity to live in the society. No other person can interfere into lifestyle but that does not mean that a person gets liberty to spoil the life of either of spouse.

https://www.scconline.com/blog/post/2022/04/12/man-cheats-woman-not-disclosing-homosexuality/


Supreme Court | Updates


Husband suspects paternity of child; Supreme Court allows DNA test while granting conditional compensation of 30 lakhs to wife if suspicion proves to be wrong

In a very interesting case where the husband had disputed paternity of child on suspicion, though the Supreme Court has allowed the DNA test, it has also granted a conditional compensation of thirty lakhs to the wife if the suspicion proves to be wrong and husband turns out to be the father of the child.

The couple got married on 05-02-2014 and the marriage was consummated on 09-02-2014. The child was born after 261 days, i.e., about 17 days earlier which was almost after 9 months, therefore, the wife had contended that there was no reason to presume that the petitioner was pregnant when she married the respondent.

Before the Supreme Court, the Bombay High Court had also directed the DNA test.

https://www.scconline.com/blog/post/2022/04/12/paternity-dna-test-compnesation-husband-wife-family-supreme-court/

2006 Meerut Fire Tragedy| Organizers held guilty! 60:40 liability to compensate victims fixed on Organizers & State

In the 2006 Meerut fire case, the Supreme Court has held the Organizers responsible for the incident and not the Contractor as the Contractor was only responsible for executing work as assigned to him by the Organizers.

The victims can finally see some ray of hope after 16 years of the unfortunate incident that claimed 65 lives and left 161 or more with burn injuries as the Supreme Court has now directed the Chief Justice of the Allahabad High Court to entrust the work of determination of compensation to a Judicial Officer in the rank of District Judge/Additional District Judge at Meerut within two weeks of the present order to work exclusively on the question of determination of the compensation on day-to-day basis.

https://www.scconline.com/blog/post/2022/04/13/meerut-fire-tragedy-compensation-organizers-supreme-court-judgments-legal-research-updates-news/


High Court | Updates


Bombay High Court

Whether absence of President of State Commission or District Forum for reasons beyond control is sufficient for striking down S. 29A as unconstitutional? Bom HC decides

Stating that, the Courts cannot examine the constitutional validity if a situation created by impugned legislation is irremediable, the Division Bench of Bombay HC, addressed a matter wherein the constitutional validity of Section 29A of the Consumer Protection Act, 1986 was challenged.

High Court observed that, the language of Section 29A of the Consumer protection Act is intended to provide for a situation where a President of State Commission or District Forum is non-functional, either having not been appointed in time or is on leave due to reasons beyond his control.

The scheme of appointment and adjudication of consumer disputes is laid down under the Act to make the District Forum or State Commission continuously functional, allowing the Members in the absence of the President to function in a situation beyond the control of the Members of the Forum.

https://www.scconline.com/blog/post/2022/04/12/constitutional-validity-of-section-29a-of-consumer-protection-act-district-forum-state-commision-president/

Lawyer-client relationship is a fiduciary one; any act which is detrimental to legal rights of clients’ needs to be punished 

Stating that it is the duty of every Advocate to uphold professional integrity so that citizens can legally secure justicethe Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., expressed that, professional misconduct refers to its disgraceful conduct not befitting the profession concerning the legal profession, which is not a business or trade and therefore, it must remain decontaminated

In this case, the Court was perturbed by the act of the Advocate to keep valuable security owned by the Client with him.”

Bench also observed that, The Advocates owe a social obligation to the Society while discharging professional services to the litigant. The Advocate should not commit any act by which a litigant could be deprived of his statutory and constitutional rights on account of the sublime position conferred upon him under the judicial system in the country.

https://www.scconline.com/blog/post/2022/04/12/lawyer-client-relationship-is-a-fiduciary-one/

Every partner is liable, jointly with all other partners and also severally for all acts of firm done while he is a partner: Is it true? Bom HC answers

Expressing that, a firm is not a legal entity, the Bombay High court, held that a partnership firm is only a collective or compendious name for all the partners. A partnership firm does not have any existence apart from its partners. Therefore, a decree in favour of or against the firm in the name of the firm has the same effect like a decree in favour of or against the partners.

Hence, when a firm incurs a liability, it can be assumed that all the partners have incurred that liability and so the partners remain liable jointly and severally for all the acts of the firm.

https://www.scconliane.com/blog/post/2022/04/15/every-partner-is-liable-jointly-with-all-other-partners-and-also-severally-for-all-acts-of-firm-done-while-he-is-a-partner/


 Punjab & Haryana High Court

Wife makes unfounded, indecent and defamatory allegations against husband to his senior officers, destroying his career & reputation: Mental Cruelty or not? P&H HC elaborates

Expressing that, Matrimonial cases are matters of delicate human and emotional relationshipthe Division Bench of P&H HC., expressed that, the Court no doubt should seriously make an endeavour to reconcile the parties, yet, if it is found that the breakdown is irreparable, then divorce should not be withheld.

The Court remarked that, The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties

https://www.scconline.com/blog/post/2022/04/11/wife-destroying-career-and-reputation-of-the-husband-irretrievable-breakdown-of-marriage-mental-cruelty/


Rajasthan High Court

Raj HC reiterated “Right to Procreation survives during incarceration” and “is traceable and squarely falls within the ambit of Article 21 of our Constitution; Parole granted

Rajasthan High Court granted parole to a convict whose wife sought 15 days of emergent parole for want of progeny.

High Court observed that, having progeny for the purpose of preservation of lineage has been recognized through religious philosophies, the Indian culture and various judicial pronouncements. the right of progeny can be performed by conjugal association; the same has an effect of normalizing the convict and also helps to alter the behavior of the convict prisoner.

https://www.scconline.com/blog/post/2022/04/11/raj-hc-reiterated-right-to-procreation-survives-during-incarceration/


Legislation Updates 


Income-tax (8th Amendment) Rules, 2022 

Ministry of Finance notified Income Tax (8th Amendment) Rule, 2022 in order to amend the guidelines of Infrastructure Debt Fund in the parent rules of Income Tax Rules, 1961. The 8th amendment will be in force with immediate effect. The amendment set up the Infrastructure Debt Fund as a Non-Banking Financial Company (NBFC) according to the conditions set by the Reserve Bank of India in the Infrastructure-Debt Fund–Non-Banking Financial Companies (Reserve Bank) Directions, 2011.

https://www.scconline.com/blog/post/2022/04/09/infrastructure-debt-fund-guidelines-modified-vide-income-tax-8th-amendment-rules-2022/

SEBI (Listing Obligations and Disclosure Requirements) (3rd Amendment) Regulations, 2022 

On 11th April, 2022, Securities and Exchange Board of India issues Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) (3rd Amendment) Regulations, 2022. This regulation comes into effect with immediate effect and aims to replace “asset cover” with “security cover” for the listed debt with Securities and Exchange Board of India (SEBI). Asset cover certificate is used to monitor the adequacy of assets charged against the debt obligations of the person issuing it. It is submitted to the Debenture Trustee.

https://www.scconline.com/blog/post/2022/04/12/asset-cover-sebi-security-cover-legal-research/

Foreign Exchange Management (Non-debt Instruments) (Amendment) Rules, 2022 

On April 12, 2022, the Department of Economic Affairs (DEA) has issued the Foreign Exchange Management (Non-debt Instruments) (Amendment) Rules, 2022 to further amend the Foreign Exchange Management (Non-debt Instruments) Rules, 2019. The amendment modifies the period of “Convertible note”from 5 years to 10 years.

https://www.scconline.com/blog/post/2022/04/15/foreign-exchange-management-non-debt-instruments-amendment-rules-2022/

National Insurance Company Limited (Merger) Amendment Scheme, 2022 

The Central Government notifies National Insurance Company Limited (Merger) Amendment Scheme, 2022 to amend the National Insurance Company Limited (Merger) Scheme, 1973.

In the National Insurance Company Limited (Merger) Scheme, 1973, the authorised share capital of three public sector general insurance companies has been enhanced from ‘seven thousand five hundred crore divided into seven hundred fifty crore’ to ‘fifteen thousand crore divided into fifteen hundred crore’.

https://www.scconline.com/blog/post/2022/04/15/authorised-share-capital-of-three-public-sector-general-insurance-companies-enhanced-vide-national-insurance-company-limited-merger-amendment-scheme-2022/

Case BriefsSupreme Court

Supreme Court: The Division Bench S. Abdul Nazeer and Krishna Murari*, JJ., reversed the impugned order of the Calcutta High Court for being affected with the vice of forum shopping. The Bench expressed,

“The timeline of filing complaints clearly indicates the malafide intention of Respondent 2 which was to simply harass the petitioners so as to pressurise them into shelling out the investment made by Respondent 2.”

The entire origin of the dispute emanated from an investment made by Respondent 2, amounting to Rs. 2.5 crores in lieu of which 2,50,000 equity shares were issued in the year 25-03-2008, finally culminating into the MOU dated 20-08-2009. Based on the MOU, respondent 2 filed three complaints, two at Delhi and one at Kolkata. Thus, two simultaneous proceedings, arising from the same cause of action i.e. MOU dated 20-08-2009 were initiated, amounting to an abuse of the process of the law which is barred.

Power of High Court under S. 482 of CrPC

By the said judgment, the High Court exercised the powers under Section 482 as well as Section 401 of CrPC to dismiss the prayer for quashing of the proceedings and held that continuance of criminal proceedings against the present appellant/accused would not be an abuse of the process of the court. In G. Sagar Suri v. State of UP, (2000) 2 SCC 636, it had been observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process, particularly when matters are essentially of civil nature. This Court has time and again cautioned about converting purely civil disputes into criminal cases.

In the instant case, respondent 2 alleged that the appellants were responsible for the offence punishable under Section 420, 405, 406, 120B IPC. The Bench opined that the High Court failed to examine the ingredients of the said offences and whether the allegations made in the complaint, read on their face, attract those offences under the Penal Code. The Bench remarked,

“…in order to attract the ingredients of Section of 406 and 420 IPC it is imperative on the part of the complainant to prima facie establish that there was an intention on part of the petitioner and/or others to cheat and/or to defraud the complainant right from the inception. Furthermore it has to be prima facie established that due to such alleged act of cheating the complainant had suffered a wrongful loss and the same had resulted in wrongful gain for the accused.”

Observing that the averments in the FIR and the allegations in the complaint against the appellant did not constitute an offence under Section 405 & 420 IPC, 1860, the Bench clarified that even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making promise being absent, no offence under Section 420 IPC can be said to have been made out. Therefore, the Bench rejected the findings of the High Court holding that there was no material to indicate that Appellants had any malafide intention against the Respondent.

Forum Shopping

Noticeably, the application under Section 156(3) CrPC filed before the Metropolitan Magistrate, Tis Hazari Court, Delhi was dismissed and there was no further challenge against the same. Instead, Respondent 2 chose to file a complaint with the same cause of action in Calcutta which was the exact reproduction of the complaint filed before Tis Hazari Court, New Delhi with the only difference or what may be termed as ‘Jurisdictional improvement’. The Bench noted that the jurisdiction had been created in Delhi as the Appellants used to visit Respondent 2 in order to persuade them to invest in their company and special emphasis can be laid on the fact that Respondent 2 himself accepted/agreed to the fact that all the transactions took place in Delhi. Therefore, the Bench observed,

“…registering a complaint in Kolkata is way of harassing the appellant as a complaint has already been filed in Delhi with all the necessary facts, apart from the jurisdictional issue at Kolkata.”

In Krishna Lal Chawla v. State of U.P., (2021) 5 SCC 435, it was observed that, “…permitting multiple complaints by the same party in respect of the same incident, whether it involves a cognizable or private complaint offence, will lead to the accused being entangled in numerous criminal proceedings. As such he would be forced to keep surrendering his liberty and precious time before the police and the courts, as and when required in each case.” Hence, the Bench observed,

“This Court has condemned the practice of forum shopping by litigants and termed it as an abuse of law and also deciphered different categories of forum shopping.”

The Bench observed that in spite of this Court condemning the practice of forum shopping, Respondent 2 filed two complaints i.e., a complaint u/s 156(3) CrPC before the Tis Hazari Court, New Delhi and a complaint which was eventually registered as FIR u/s 406, 420, 120B IPC in Kolkata i.e., one in Delhi and one complaint in Kolkata, which was abuse of process.

Findings

The Bench held that the order of the High Court was seriously flawed due to the fact that in its interim order it was observed that two complaints were filed on the same cause of action at different places but the impugned order overlooked the said aspect and there was no finding on that issue. Additionally, the Bench noted,

“…it is apparent that the complaint was lodged at a very belated stage (as the entire transaction took place from January 2008 to August 2009, yet the complaint has been filed in March 2013 i.e., after a delay of almost 4 years) with the objective of causing harassment to the petitioner and is bereft of any truth whatsoever.”

Accordingly, the impugned order was set aside and the FIR registered in Kolkata was also quashed.

[Vijay Kumar Ghai v. State of W.B., 2022 SCC OnLine SC 344, decided on 22-03-2022]


*Judgment by: Justice Krishna Murari


Appearance by:

For the Appellants: Menaka Guruswamy, Senior Advocate

For the Respondents: Anjana Prakash, Senior Advocate


Kamini Sharma, Editorial Assistant has put this report together

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: The Division Bench of V.K. Jadhav and Sandipkumar C. More, JJ., addressed whether Family Court under Muslim Personal Law (Shariat) Application Act, 1937 read with Section 7(1)(b) Explanation (b) of the Family Courts Act, 1984 declare the matrimonial status of a wife and husband.

The applicant/accused sought to quash an FIR for the offences punishable under Sections 498(A), 323, 504, 506 of the Penal Code, 1860 on the ground that the parties arrived at an amicable settlement.

Applicant’s counsel submitted that applicant-husband and respondent 2-wife got separated by mutual consent and hence approached the Family Court for declaration of their matrimonial status in terms of provisions of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 read with Section 7(1)(b) Explanation (b) of the Family Courts Act, 1984.

Family Court had allowed the petition and declared their status as they were no more husband and wife in terms of the mutual agreement between them. Further, it was agreed between the parties that the applicant-husband shall pay an amount of Rs 5 lakhs to respondent 2 as the amount for future maintenance in total.

Respondent 2 submitted that she was not interested in prosecuting the applicant.

Analysis, Law and Decision

In the present matter, in terms of provisions of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, all the questions about the property, marriage, dissolution of marriage including talaq, illa, zihar, lian, khula and mubaraat, maintenance, dower, guardianship gifts, trusts and trust properties and wakfs the rule of decision in cases where the parties are Muslims shall be considered as per the provisions of Muslim Personal law (Shariat).

Section 7 of the Family Courts Act, 1984, prescribes jurisdiction, in terms of Section 7(1), Explanation (a) and (b), suit for a declaration as to the validity of a marriage or as to the matrimonial status of any person can also be a subject matter before the Family Court.

Therefore, Family Court had rightly applied the provisions of the Muslim Personal Law (Shariat) Application Act, 1937 to the parties before this Court and hence declared the status of marriage as no more in existence by mutual consent.

While concluding the matter, the Bench allowed the criminal application. [Shaikh Taslim Shaikh Hakim v. State of Maharashtra,  2022 SCC OnLine Bom 757, decided on 29-3-2022]


Advocates before the Court:

Mr. Shaikh Wajeed Ahmed, Advocate for the applicant. Mr.S.S. Dande, APP for the respondent/State. Mr. Samir Shaikh, Advocate for respondent No.2.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Rajiv Shakdher and Jasmeet Singh, JJ., strikes down the OM dated 13-7-2021, to the extent it requires Judges of the Supreme Court and the High Court to seek political clearance qua private visits abroad.

Why was the present application filed?

  • Set aside and/or quash the notification/office memorandum dated 13-7-2021 issued by the Union of India through Ministry of External Affairs
  • Set aside the communication issued by the Ministry of Law and Justice
  • Stay the operation of the notification/office memorandum dated 13-7-2021 issued by the Union of India through the Ministry of External Affairs during the pendency of the present application.

Concern was with regard to the aspect embedded in paragraphs 2 and 3 of the Office Memorandum dated 13-7-2021 requiring the Judges of the Supreme Court and High Courts to obtain political clearance for private visits abroad.

The sum and substance of the O.M. was that it required judges of Constitutional Courts i.e., the Supreme Court and the High Court to seek political clearance qua private visits to foreign countries, infringes not only their right of privacy but also, in a sense, degrades and/or diminishes the high office that they hold.

High Court noted that on 15-2-2011, guidelines had been issued concerning foreign visits by Judges of the Supreme Court and High Courts.

This Court by a decision dated 25-5-2012 had issued a slew of directions concerning the above-said guidelines. Though the Court did not deem it fit to pass any directions vis-à-vis the paragraph with regard to dispensing with the requirement of the Judges of the Supreme Court and the High Courts to obtain political clearance for private foreign visits.

Bench opined that the O.M dated 13-7-2021, requiring the Judges of the Supreme Court and High Courts to seek political clearance for private foreign visits is uncalled for, given the high offices they are holding, especially given the fact that nothing has changed since the 2011 guidelines were issued.

With regard to the relief sought in clause (b) was concerned, the said will have to be partially allowed as it was a communication addressed by the Government of India, Ministry of law and Justice, Department of Justice to the Secretary-General, Supreme Court of India and the Registrar Generals of High Courts requiring them to take “appropriate action” in consonance with the O.M. Since Court has struck down the O.M. to the extent it requires judges of the Supreme Court and the High Courts to the obtain political clearance qua foreign (private) visit, the said communication, which is, dated 18.08.2021 will get truncated to that degree.

In view of the above analysis, the application was closed. [Aman Vachar v. Union of India, WP (C) No. 2712 of 1991, decided on 1-4-2022]


Advocates before the Court:

For the Petitioner:

Petitioner-in-person

For the Respondent:

Mr Tushar Mehta, Solicitor General of India with Mr Imon Bhattacharya, Adv.

Jammu and Kashmir and Ladakh High Court
Appointments & TransfersNews

President appoints (i) Shri Rahul Bharti, and (ii) Ms. Moksha Khajuria Kazmi, to be Additional Judges of the High Court of Jammu & Kashmir and Ladakh, for a period of two years, with effect from the date they assume charge of their respective offices.


Ministry of Law and Justice

[Notification dt. 24-3-2022]

Appointments & TransfersNews

President appoints (i) Ms. Nidumolu Mala, and (ii) Shri S. Sounthar, to be Additional Judges of the Madras High Court, for a period of two years, with effect from the date they assume charge of their respective offices.


Ministry of Law and Justice

[Notification dt. 24-3-2022]

High Court Round UpLegal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

“For a contract to be enforceable, the restraint of trade clause must be reasonable.”

[Rajesh Kumar Gandhi v. Mukesh Dutt]


Read the interesting picks from the stories eported in first week of February.


Delhi High Court


Baazi v. WinZo| Trademark is used by a manufacturer or service provider to distinguish products from those of competitors: Here’s how Winzo appeared dishonest and unfair in adopting Baazi

Explaining the significance of a trademark, Asha Menon, J., observed that,

When people are satisfied with the products supplied by a manufacturer or service provider, they buy them on the basis of the trade mark and over time it becomes popular and well known. Thus, the use of a similar or identical trademark by a competitor in the same product would lead unwary customers to believe that it originates from the same source.

Read full report here…

Whether a ‘blade’ would be covered under S. 397 IPC as a deadly weapon? Del HC explains in view of settled position of law

Mukta Gupta, J., explained under what circumstances would Section 397 of penal Code, 1860 would be attracted.

Rae full report here…

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.”

Read full report here…


Kerala High Court


Is not taking treatment for mental illness to bring out a peaceful family atmosphere a form of cruelty and thus, a ground for divorce? Kerala HC answers

In an interesting case the Division Bench of A.Muhamed Mustaque and C.R. Sophy Thomas, JJ., held that not taking treatment for mental illness in order to bring out a peaceful and harmonious family atmosphere can also be counted as cruelty to the persons at the receiving end. Upholding the Family Court’s order granting divorce on the ground of cruelty, the Bench remarked,

“There is no merit in preserving intact a marriage, when the marital tie becomes injurious to the parties. When there is no rose, and only thorns left, and there is no scope for the plant to sprout again, there is no meaning in watering the same, knowing that it is dead forever.”

Read full report here…


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? AP 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. The Bench, however, remarked,

“The State is unconscious of the directions issued by NALSA and failed to provide a specific column meant for gender identity for transgender in the proforma of application in the Notification dated 01.11.2018 and did not provide any reservation to transgenders, as they are socially and educationally backward and not in a position to compete with ordinary men and women.”

Read full report here…


National Company Law Tribunal


Operational Creditor is under obligation to recover money from its client and not agent: NCLT decides while dismissing a petition filed under S. 9 IBC

The Coram of H.V. Subba Rao (Judicial Member) and Chandra Bhan Singh (Technical Member) dismissed a petition filed under Section 9 of the IBC while noting that no operational debt existed under Section 5(8) and expressed that,

“Operational Creditor being the principal was always under obligation to recover the money from the client and not from his agent unless the agent failed to perform his duties.”

Read full report here…


Tis Hazari Court


For a contract to be enforceable, restraint of trade clause must be reasonable: Post-termination non-compete clauses are permissible in employment contracts under S. 27 of Contract Act? District Court explains

Holding that, post-termination non-compete clauses in employment contracts are “restraint of trade” and it is impermissible under Section 27 of the Act, Richika Tyagi, C.J-02, expressed that such agreements of restraint are vid because of being unfair and depriving an individual of his or her fundamental right to earn a living.

Read full report here…


Information Commissioner’ Office


Unsolicited marketing calls causing distress to people and disregard to their privacy rights: Would it lead to imposition of monetary penalty? Detailed decision of Information Commissioner’s Office

Andy Curry, Head of Investigations, on noting serious contravention of regulations 21 and 24 of the Privacy and Electronic Communication Regulations 2003 (PECR) has issued Home2sense Limited with a monetary penalty under Section 55A of the Data Protection Act, 1998.

“Home2sense’s dismissive and troubling response, coupled with its failure to disclose any details of its CDRs or any other information which might assist the Commissioner’s investigation shows, in the Commissioner’s view, a complete disregard for the privacy rights of the individuals whom it sought to contact.”

Read full report here…

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: Mohd. Akram Chowdhury, J., reiterated the settled position of law that if an alternate efficacious remedy is available under the statute, the inherent power of this Court cannot be invoked.

A complaint was filed against the petitioner under the provisions of the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 and the Trial Court ordered the petitioner to pay Rs 4000 per month to his wife and Rs 3000 each to his minor children.

Furthermore, vide that order, it was ordered to provide one room, kitchen and bathroom in the shared household or in alternative rental accommodation at a suitable place, also the petitioner was restrained from committing any act of violence upon the respondents.

Aggrieved with the Trial Court’s order, the petitioner preferred the present petition under Section 561-A J&K CrPC, which is akin to Section 482 Central CrPC for quashing of the impugned order issued by the Trial Court.

Analysis, Discussion and Decision

High Court stated that instead of going into the merits of the case, a preliminary point raised by the respondent’s counsel was required to be determined: Whether the present petition was maintainable when alternate remedy for challenging the impugned order was available?

The impugned order was passed under the provisions of the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010.

As per Section 29 of the above-said Act, all the orders passed under any of the provisions of the Act are appealable.

This Court under Section 561-A J&K CrPC has inherent powers to exercise. It has been a consistent view of Constitutional Courts that when alternate efficacious remedy is available, the inherent jurisdiction of the Court cannot be invoked.

Supreme Court in Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 and Laxmikant Revchand Bhjwani v. Pratapsingh Mohansingh Pardeshi, (1995) 6 SCC 576 reminded the High Court that the inherent power cannot be assumed in terms of Article 227 as an unlimited prerogative to correct all species of hardships of wrong decision. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principle of law and justice.

This Court in Jatinder Nath Bakshi v. State of J&K, 2009 SCC OnLine J&K 90, had held that the power under Section 561-A J&K Cr.PC has to be exercise sparingly and in the rarest of rare cases. This inherent power cannot be exercised on mere drop of hat or merely to correct any illegality committed by the subordinate court.

In High Court’s opinion, petitioner instead of filing an appeal under Section 29 of the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 before the Sessions Court rushed to this court invoking its inherent power, which otherwise had to be used cautiously and sparingly.

Since there was an alternate efficacious remedy available under the statute, invoking the inherent power of this Court was an abuse of process.

Therefore, this Court found no scope for interference into the impugned order by exercising its inherent jurisdiction. [Nissar Ahmad Malik v. Mubeena Farhat, 2022 SCC OnLine J&K 18, decided on 31-01-2022]


Advocates before the Court:

For the respondent: Syed Sajad Geelani, Advocate

Case BriefsHigh Courts

Orissa High Court: A Division Bench of B P Routray and S. Muralidhar JJ. dismissed the petition being devoid of merits.

The instant petition was filed by the Petitioner, a Judicial Officer, challenging the order of compulsory retirement dated 23-08-2012 on attaining the age of 50 years in terms of Rule 44 of the OSJS and OJS Rules, 2007. He was an Officer in the cadre of Civil Judge and last worked as JMFC, Motu

Counsel for petitioners Mr. Manoj Kumar Mohanty submitted that absence of any adverse remark in the confidential report of the Petitioner touching on his integrity or about his inability to achieve the prescribed yardstick, the recommendation of the Full Court for his compulsory retirement is arbitrary

Counsel for respondents Mr. P K Muduli submitted that an overall assessment was made of the performance of the Petitioner during his entire service period and he was found unsuitable for being continued as such. It is also submitted that the scope of judicial review in matters of compulsory retirement is limited.

“Rule 44 of the OSJS and OJS Rules 2007 (hereinafter referred to as ‘2007 Rules’) authorizes the High Court to retire in public interest any member of the service who has attended the age of 50 years. Such consideration for all the Officers in service shall be made at least three times i.e., when he is about to attend the age of 50, 55 & 58 years.”

 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.

The Court observed that on a careful perusal of the record, it is seen that the Petitioner does not possess the standard efficiency required to discharge the duty of the post held by him. As per the notification of the State Government it is prescribed that it will not be in public interest to retain an employee in service, if he lacks in the standard of efficiency required to discharge the duties of the post he presently holds.

The Court further observed that on an overall assessment of the personal record of the Petitioner, the emerging picture is not favourable to him. During his service career spanning fourteen years and eight months, he was not able to get a ‘good’ grading for at least three consecutive years. He was earlier also let off with a warning to be careful in future. He was not found suitable either for promotion to the higher post or for getting higher pay in ACPII scale. His performance was often rated ‘average’. There have been allegations of his passing indiscriminate orders in particular cases or failing to maintain uniformity or consistency in passing judicial orders. Charges on the above score were framed against him in the departmental proceedings. The overall assessment of the Petitioner’s entire service carrier is that his performance failed to meet the expected standards of competency.

The Court held An overall consideration of all those factors, tested on the touchstone of the standard of efficiency of the Petitioner as a Judicial Officer reveals that the decision of authority cannot be said to be as mala fide or arbitrary or based on no evidence.”[Ashok Kumar Agarwala v. Registrar General of Orissa, 2022 SCC OnLine Ori 406, decided on 19-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: 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.

The facts of the case were such that the Family Court had allowed the application filed under Section 125 of the Criminal Procedure Code, 1973 and directed the opposite party to pay an amount of Rs 1500 per month to the petitioner from the date of passing of the judgement and had further directed to pay Rs 5,000 lump sum as litigation cost and had also directed the opposite party to make payment of monthly allowance on or before 10th day of each month of English calendar.

By an order dated 31-01-2020, the High Court had refused to interfere with the quantum of maintenance. However, the notice was issued on the point regarding effective date of grant of maintenance whether it should have been from the date of passing of the impugned judgement or from the date of filing of the maintenance application.

The petitioner relied upon the judgement of the Supreme Court in Rajnesh v. Neha, (2021) 2 SCC 324, to submit that the law had been well-settled that in a case of maintenance, the maintenance is to be awarded from the date of filing of the application since the period during which maintenance proceeding remained pending, is not within the control of the applicant.

In the above mentioned case, the Supreme Court had issued direction to bring about uniformity and consistency in the orders passed by all courts by directing that maintenance be awarded from the date on which the application was made before court concerned, and the 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.

In the backdrop of above, the High Court held that the impugned order was not sustainable in law to the extent it directed payment of monthly maintenance from the date of judgement, and consequently, the Bench modified by holding that the petitioner would be entitled for the payment of monthly allowance as fixed by the Family Court from the date of filing of application; i.e. 22-09-2014.

Since, the entire arrears of maintenance for 88 months till January, 2022 came to Rs 1,32,000 and by including litigation expenses, it became 1,37,000; the respondent was directed to remit the arrears of maintenance and litigation expenses amounting in monthly instalment of Rs 10,000 each with effect from 10-02-2022 along with the current monthly maintenance amount for each month in the bank account of the petitioner through RTGS mode. [Rinki Kumari v. Kundan Kumar, 2022 SCC OnLine Jhar 22, decided on 07-01-2022]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Arjun N. Deo, Advocate

For the Respondent: Vikas Kumar, Advocate

Case BriefsSupreme Court

Supreme Court: The 3-judge Bench comprising of L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna*, JJ., held that though it is not necessary for a Court to give elaborate reasons while granting bail particularly when the case is at the initial stage but an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. Criticizing the practise of granting cryptic bail in a casual manner, the Bench remarked,

“It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.”

Background

The appellant, mother of the deceased Rupesh Kumar and also the eyewitness of the killing of her son had assailed the Patna High Court’s order granting bail to the accused. The appellant had filed an FIR in the year 2020 for the offence of murder of her son under section 302 read with section 34 of the Penal Code, 1860 and section 27 of the Arms Act stating that the accused had shot her deceased son with a pistol on two occasions. Earlier, in the year 2017, another FIR was lodged against the same accused by the deceased himself for attempt to murder and causing serious bullet injury to him, under sections 341, 307 read with section 34 of IPC and section 27 of the Arms Act and in that case as well the accused was released on bail.

The appellant contended that the impugned orders granting bail to the respondent accused were bereft of any reasoning and they were cryptic and bail had been granted in a casual manner.

Observations and Analysis

In the impugned order, the High Court had noted that there was a previous enmity between the deceased and the petitioner with regard to contesting an Election as Mukhiya but this fact had not been taken into consideration in the context of the allegation against the accused and with regard to grant of bail. After critically scrutinizing the materials on record, the Bench made following observations:

  1. The offences alleged against the accused were serious vis-a-vis against the very same person, Rupesh Kumar at two points of time, namely, in 2017 when attempt to murder him was alleged and in 2020 allegation of murder had been cast by the appellant.
  2. The accused had been named in about eight cases and though he might have been acquitted in a few of them, there were still cases pending against him. Thus, he was a man with criminal antecedents.
  3. The accused had absconded for a period of seven months after the complaint in respect of the second offence was lodged against him. Therefore, his arrest was delayed.
  4. It was also the case of the appellant that the accused had threatened the informant mother of the deceased.

Thus, the Bench opined that there was a likelihood of the respondent accused absconding or threatening the witnesses if on bail which would have a vital bearing on the trial of the cases. Also, for securing the accused for the purpose of commencement of the trial in right earnest in both the cases, as the accused had earlier absconded, discretion could not have been exercised in favour of the accused in the instant cases.

Reason is the soul of the law

Applying the Latin maxim “cessante ratione legis cessat ipsa lex” meaning “reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself”, the Bench stated, though liberty of an individual is an invaluable right, at the same time while considering an application for bail Courts cannot lose sight of the serious nature of the accusations against an accused particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material so as to enable a Court to arrive at a prima facie conclusion.

As been held by the Supreme Court in catena of cases, the Bench reiterated that a balance would have to be struck between the nature of the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused.

Thus, the Bench emphasised that while elaborating reasons may not be assigned for grant of bail, at the same time an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail.

Conclusion

Consequently, the Bench opined that the High court had lost sight of the aforesaid vital aspects of the case and in very cryptic orders had granted bail to the accused who had two serious accusations against him vis-à-vis the very same person. Hence, the appeal was allowed and the impugned orders were set aside. The bail bonds submitted by the accused were declared cancelled and he was directed to surrender before the concerned jail authorities within a period of two weeks. [Brijmani Devi v. Pappu Kumar, Cr. A. No. 1663 of 2021, decided on 17-12-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Appellant: Smarhar Singh, Advocate

For the Respondent: R. Basant, Senior Counsel

Tags: IPC, Criminal Law, Homicide, Murder, Attempt to Murder, Bail, Reasoned Order, Natural Justice


*Judgment by: Justice B.V. Nagarathna

Legal RoundUpWeekly Rewind


STORY OF THE WEEK 


Three death row convicts to walk free as SC finds them “not guilty” of murdering six family members  

In a big relief to three death row convicts, a 3-judge bench of the Supreme Court has acquitted all of them of charges of killing 6 members of their own family after it was found that the prosecution had failed to prove the case beyond reasonable doubt. 

On 23rd January, 2014, 6 members of a family, including two children aged 15 and 8 were found brutally murdered.  

It was Prosecution’s case that one Momin Khan, with his wife Nazra, along with his first cousin and nephew came armed with knives and assaulted his parents, his brother, sister-in-law and two children. While the Trial Court convicted and sentenced all 4 to death, the Allahabad High Court affirmed the sentence imposed on 3 men but acquitted the woman.  

The Supreme Court, however, found several loopholes and inconsistencies in the prosecution story and was surprised at how the Trial Court and the High Court had dealt with the case in such a casual manner while considering the question of life and death of the accused. 

The Court observed that a greater degree of scrutiny, care and circumspection was expected while directing the accused to be hanged till death. 

Read here: Three death row convicts to walk free as SC finds them “not guilty” of murdering six family members 


SUPREME COURT


Consumer Protection| Can written statement be accepted beyond 45 days? SC settles the conundrum once and for all 

After a series of judgments, before and after the Constitution Bench verdict in New India Assurance company Limited case on March 4, 2020, gave contradictory views with respect to discretion of NCDRC to condone the delay beyond 45 days, thereby creating uncertainty over the applicability of the Constitution Bench verdict, the Supreme Court has settled the controversy once and for all and has held that the Constitution Bench judgment would not affect applications that were pending or decided before March 4, 2020. 

On March 4, 2020, the Constitution Bench had held that the limitation period under Section 13(2)3 of the Consumer Protection Act 1986 could not be extended beyond the statutorily prescribed period of forty-five days. 

Read here: Can written statement be accepted beyond 45 days? SC settles the conundrum once and for all 

Time to do away with Discretionary quota for allotment of Government Largesse 

Noticing that the allotment of government largesse on the basis of discretionary quota inevitably leads to corruption, nepotism and favouritism, the Supreme Court has suggested that discretionary quota should be done away with, and allotments of the public properties/plots must be through public auction by and large. 

The observation came in a case where the officials of the Bhubaneswar Development Authority and the Housing and Urban Development Department, Odisha Deptt hatched a criminal conspiracy for allotment of 10 plots in the discretionary quota arbitrarily and to their own family members/relatives. 

Read here: Time to do away with Discretionary quota for allotment of Government Largesse 


HIGH COURTS


KERALA HIGH COURT

Forced Conversion Therapy of LGBTQA+ community; HC directs State to constitute an expert committee for forming guidelines against such therapies 

In an important ruling on the rights of the LGBTQA community, the Kerala High Court has directed the Kerala Government to take strict action against the forced conversion therapy of LGBTQIA+ Community in the State. The Bench also directed the government to constitute an expert committee and form a guideline based on that in this regard. 

Read here: Forced Conversion Therapy of LGBTQA+ community; HC directs State to constitute an expert committee for forming guidelines against such therapies

Husband harasses wife, portrays her as a psychiatric patient; HC slams Child Right Commission for directing psychiatric treatment of wife without any medical assessment 

In an interesting development, Kerala High Court slammed the Kerala State Commission for Child Rights for directing psychiatric treatment for wife of the accused without any jurisdiction. Expressing anguish over the factum that the Commission had aided the accused in trespassing the house of the victim and forcefully admitting her in the hospital, the Bench remarked, 

“The case is very distressing insofar as, the respondent , prima facie has been attempting to style his wife as a mental patient before various forums.” 

The Court noticed that the respondent; employed in the Law Department of the State and also once appointed as a temporary Magistrate, wants to use his official clout to witch-hunt his wife and children.

Read here: Husband harasses wife, portrays her as a psychiatric patient; HC slams Child Right Commission for directing psychiatric treatment of wife without any medical assessment

Accused has no right to Narco Analysis Test to prove innocence; HC denies permission to 68 years old POCSO accused from voluntarily undergoing Narco Test 

Holding that accused have no rights to claim subjecting themselves to Narcotic Analysis Test to prove innocence, the Kerala High Court observed the limitation of Narco Test and stated that,  

“The possibility of accused himself making exculpatory statements to support his defence also cannot be ruled out. There is no mechanism or the present Investigating Agency is also not equipped to assess the credibility of such revelations of the accused.”

Read here: Accused has no right to Narco Analysis Test to prove innocence; HC denies permission to 68 years old POCSO accused from voluntarily undergoing Narco Test

Whether gifts given to the bride during marriage by parents will be covered under ‘Dowry’ or not? 

In a very important decision Kerala High Court held that, 

“Presents given at the time of marriage to the bride without any demand having made in that behalf and which have been entered in a list-maintained in accordance with rules made under the Dowry Prohibition Act will not come within the purview of Section 3(1) of Dowry Prohibition Act which prohibits giving or taking of dowry.”

Read here: Whether gifts given to the bride during marriage by parents will be covered under ‘Dowry’ or not?


DELHI HIGH COURT

“And Then There Were None”: Agatha Christie’s most famous work in Del HC for trademark registration 

Justice Harishankar, expressing that he was an “avowed aficionado and an admirer of Agatha Christie”, quashed the order which refused the trademark registration to Agatha Christies’ most well-known work  “And Then There Were None”. 

Delhi High Court also observed that, If the mark is distinctive, and is not identical or confusingly or deceptively similar to any earlier mark which is registered or in use from a prior date in respect of similar goods or services, or which results in the passing off, by the applicant, of its goods or services as those of another, registration of the mark is a matter of right.. 

Read here: “And Then There Were None”: Agatha Christie’s most famous work in Del HC for trademark registration

If an advocate has appeared for a party in judicial or quasi-judicial capacity or even as a mediator, Can Court injunct him from appearing to maintain stream of justice? 

In another decision, the Delhi High Court while expressing its opinion on the position of an advocate in law expressed that,  

an advocate owes, to the litigating public, the Court, his client and to the opposite parties, the highest degree of probity and transparency. 

The Court elaborated that where the Court finds that the appearance of an advocate, before it, is not in keeping with the standards expected of the legal profession and is likely to prejudice a fair espousal and prosecution of the lis, the Court can step in and restrain such appearance. 

Read here: If an advocate has appeared for a party in judicial or quasi-judicial capacity or even as a mediator, Can Court injunct him from appearing to maintain stream of justice?

Daughter-in-law claims right of residence in late husband’s mothers’ property under the head ‘Shared Household’: Mother-in-law approaches Del HC seeking eviction of daughter-in-law

Explaining the significance of ‘shared household’, the Delh Highi Court, explained that where a residence is clearly a shared household, it would not bar the owner from claiming eviction against her daughter-in-law, if circumstances call for it. While allowing the mother-in-law’s prayer seeking possession of the subject property to the exclusion of the daughter-in-law, the Court said that 

“The protection under the DV Act assuring the residence of the aggrieved person in the shared household does not vest any proprietary or indefeasible right on the aggrieved person. It is also subject to eviction being initiated in accordance with law.” 

Read here: Daughter-in-law claims right of residence in late husband’s mothers’ property under the head ‘Shared Household’: Mother-in-law approaches Del HC seeking eviction of daughter-in-law 


LEGISLATION UPDATES 


Bihar Biological Diversity (Amendment) Rules, 2021 

The Government of Bihar has notified the Bihar Biological Diversity (Amendment) Rules, 2021 to extend the tenure of Biodiversity Management Committees till tenure of Government Advisory Committees. 

Read here: Bihar Biological Diversity (Amendment) Rules, 2021  

Maharashtra Government revises Excise Duty for wine manufacturers 

The Government of Maharashtra has revised the Excise Duty for wine manufacturers holding licence in FORM BRL. 

As a result, the wines manufactured from any substance and without addition of alcohol and without manufacturing or blending with imported concentrate or imported Bulk Wine shall be exempted from Excise Duty in excess of Rs. 10 per bulk litre. 

Read here:Maharashtra Government revises Excise Duty for wine manufacturers

Dam Safety Act, 2021 

The Dam Safety Act received President’s assent in order to provide for surveillance, inspection, operation and maintenance of the specified dam for prevention of dam failure related disasters and to provide for institutional mechanism to ensure their safe functioning.  

Read details report about the Act on SCC Blog 

Read here: Dam Safety Act, 2021