Legal RoundUpWeekly Rewind

SCC Online Weekly Rewind Episode 20 ft. Devika Sharma, Senior Editorial Assistant is out now. The written episode along with the video episode can be watched and read below.


Supreme Court

Part IX-B of Constitution relating to cooperative societies unconstitutional for want of ratification by half of the States; Provisions relating to multi-State cooperative societies severable and valid: SC

In a major ruling this week, a 3-Judge Bench of the Supreme Court held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B, is ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies, for want of the requisite ratification under Article 368(2) proviso. At the same time, the Court by a majority of 2:1, followed doctrine of severability in declaring that Part IX-B is operative insofar as it concerns Multi-State Cooperative Societies both within various States and in Union Territories. Justice R.F. Nariman and Justice B.R. Gavai formed the majority. Whereas Justice K.M. Joseph penned a separate opinion dissenting partly with the majority. He expressed inability to concur with the view on the application of doctrine of severability.

https://www.scconline.com/blog/post/2021/07/21/constitution-97th-amendment-act-2011/

Can Courts modify Arbitral Awards under S. 34 of Arbitration Act or is power limited? SC decides

Whether the power of a Court under Section 34 of the Arbitration and Conciliation Act, 1996 to ‘set aside’ an award of an arbitrator would include the power to modify such an award? Answering this interesting and important question in the negative, the Supreme Court said that:

“If one were to include the power to modify an award in Section 34, one would be crossing the Lakshman Rekha.”

While laying down this law, the Supreme Court reversed a Madras High Court judgment which had ruled that at least insofar as arbitral awards made under the National Highways Act, 1956 are concerned, Section 34 of the Arbitration Act must be so read as to permit modification of an arbitral award made under the National Highways Act so as to enhance compensation awarded by an Arbitrator.

https://www.scconline.com/blog/post/2021/07/22/arbitral-award-3/

Supreme Court closes suo motu case as U.P. Government expresses decision to postpone Kanwar Yatra to next year

In another case, while closing the suo motu case regarding “Kanwar Yatra during pandemic”; the Division Bench comprising of Justice R.F. Nariman and Justice B.R. Gavai directed the authorities to be cautious towards public health and safety. The Bench stated,

“We may only remind the authorities at all levels to have regard to Article 144 of the Constitution, and ensure that untoward incidents which directly affect the lives of the public will be looked upon sternly and prompt action taken immediately.” 

https://www.scconline.com/blog/post/2021/07/19/kanwar-yatra-2/

Will a subsequent purchaser stepping into shoes of original allottee in housing project have same rights as that of original allottee? SC explains

Giving a major relief to homebuyers, the Supreme Court held that rights of a subsequent purchaser are the same as that of an original allottee in a housing project. The Court said that in the event the subsequent purchaser claims refund, on an assessment that he too can (like the original allottee) no longer wait, and face intolerable burdens, the equities would have to be moulded.

https://www.scconline.com/blog/post/2021/07/23/will-a-subsequent-purchaser-who-steps-into-the-shoes-of-an-original-allottee-have-the-same-rights-as-that-of-the-original-allottee-sc-explains/

High Court

Delhi High Court

Whether a Chief Minister’s promise to its citizens is enforceable?

Whether a promise made by a Chief Minister to its citizens is enforceable?

Well, the Delhi High Court says yes it is! Justice Prathiba M. Singh pronounced a one of its kind ruling. The Court said that the Law has evolved the doctrines of  legitimate expectation and promissory estoppel to ensure that promises made by the Government, its officials and other authorities are not broken and are, in fact, judicially enforceable, subject to certain conditions.

The High Court expressed that,

A statement given in a consciously held press conference, in the background of the lockdown announced due to the pandemic and the mass exodus of migrant labourers, cannot be simply overlooked. Proper governance requires the Government to take a decision on the assurance given by the CM, and inaction on the same cannot be the answer.

In the backdrop of this decision, was a press conference held by the Chief Minister of Delhi during the ongoing Covid pandemic where he gave a solemn assurance that the Government would take care of the tenants who are unable to pay the rent due to poverty.

https://www.scconline.com/blog/post/2021/07/23/promise-by-chief-minister-in-press-conference-enforceable/


Andhra Pradesh High Court

AP HC | Is girlfriend or concubine a “relative” of husband, liable to be prosecuted for cruelty under S. 498-A IPC? Court decides

 Can a Girlfriend or concubine of husband be prosecuted for cruelty under the Penal Code, 1860?

Andhra Pradesh High Court held that a Girlfriend or concubine, being not connected by blood or marriage, is not a relative of the husband for the purpose of Section 498-A IPC.

https://www.scconline.com/blog/post/2021/07/20/cruelty-5/


Allahabad High Court

Man murdered wife and 4 minor daughters and burned them. Will this case fall under rarest of rare category? Allahabad HC decides

 The Allahabad High Court dealt with a case of an accused who committed murder in most brutal and barbaric manner of his wife and four minor daughter to pave way to marry another lady. Not only this, but he also chopped off various parts of their bodies and inflicted severe incised wounds. In such above background of the case, the High Court upheld the trial court’s decision of awarding death penalty to the accused. Court expressed that

The accused is a menace to the Society and, therefore, imposition of lesser sentence than that of death sentence, would not be adequate and appropriate.

https://www.scconline.com/blog/post/2021/07/19/rarest-of-rare-category/


Punjab and Haryana High Court

Maintaining elderly parents is not only a value based principle but a bounden duty under Maintenance and Welfare of Parents Act 

Recently, the Punjab and Haryana High Court addressed plight of a 72-year-old widowed mother who had been ousted from her house by her son and was given beatings. The Court observed that,

“It is often seen that after receiving property from their parents, children abandon them. In such situation, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is an enabling lifeline for such old, aged parents and senior citizens who are not looked after by their children and become neglected lots.”

Further, the Court held that the children are expected to look after their elderly parents properly which is not only a value based principle but a bounden duty as enshrined within the mandate of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

https://www.scconline.com/blog/post/2021/07/18/ph-hc-maintaining-elderly-parents-is-not-only-a-value-based-principle-but-a-bounden-duty-under-maintenance-and-welfare-of-parents-act/

“Nightmarish and traumatic”; HC denies bail in a case of sodomy committed to an 8-year-old child

 In a case with very disturbing accusations, the Punjab & Haryana High Court rejected the bail application of the applicant accused of committing an act of sodomy to an 8 year old child. The Bench stated that,

“Accused has spoiled the life of a young child by his hateful acts. The petitioner comes out to be a sex maniac, himself a teenager, indulging in perverse sexual acts. His conduct cannot be taken lightly, since if released on bail, he may victimize several other innocent children and is a grave threat to the society.”

It was alleged that accused had attempted to commit unnatural sex with a child of young age of 8 years, making him undergo nightmarish and traumatic experience, which may haunt him for the rest of his life.

https://www.scconline.com/blog/post/2021/07/21/sodomy/


Kerala High Court

Kerala High Court

Harassment, abuse and torture of wife within seven months of marriage; HC denies anticipatory bail to doctor

Expressing concern over violence against married women, the Kerala High Court rejected the bail application of a doctor and his family accused of dowry demand and cruelty against his wife within seven months of marriage. Calling ‘matrimonial homes the most dangerous place to live’ due to harassment, abuse and torture, the Bench remarked that the number of cases of attack towards married women in our country is alarming, though stringent laws are there and the same has to be stopped forever. The Court observed that:

“Harassment, abuse and torture both mental and physical towards married ladies are increasing day by day in our country to pressurize them to bring more wealth to the family of the bridegroom to improve their financial situation. Though so many cases are being registered against husbands and in laws there is no change in the attitude of the society towards married women and family members.”

https://www.scconline.com/blog/post/2021/07/21/anticipatory-bail-6/


 Gauhati High Court

“Not based on intelligible differentia”; HC stays Arunachal Pradesh Govt.’s order discriminating between vaccinated and non-vaccinated persons

 The Gauhati High Court stayed the order of the State Executive Committee of Arunachal Pradesh whereby non-vaccinated persons for Covid-19 were being discriminated for the purpose of permit to enter the State for developmental works in both public and private sector.

Additionally, the Court stated that,

“if the sole object of issuing the impugned order was for containment of the Covid-19 pandemic and its further spread in the State of Arunachal Pradesh, the classification sought to be made between vaccinated and unvaccinated persons was, prima facie, a classification not founded on intelligible differentia nor it was found to have a rational relation/nexus to the object sought to be achieved by such classification, namely, containment and further spread of Covid-19 pandemic.”

 https://www.scconline.com/blog/post/2021/07/22/covid-19-vaccination-4/


District Court

“Utterly shocked”; “No one allowed to ignite religious riots, blow hatred towards particular group or community”: Court rejects bail plea of accused booked over hate speech

Expressing shock over an incident of hate speech in a public gathering, the Court of Judicial Magistrate, Patuadi, Gurugram dismissed bail plea of Rambhagat Gopal who had allegedly delivered hate speech instigating abduction and killing of girls of a particular community. The Court observed that,

“If right of freedom of speech is allowed to be used to spread hatred amongst the people based on religion, caste, etc. then the very basic nature of the constitution and Indian Society will be shattered and the country will lose its true spirit and soul.”

Further, the Court stated that,

“Conscience of the Court is utterly shocked while seeing the actual incidents which took place at that time, in video recording. It seems that now a normal parent would tell stories to their children that there used to be a time when talks of hatred or the religious intolerance in our society used to be seen as a sign of diminishing social values.”

https://www.scconline.com/blog/post/2021/07/19/hate-speech/


International Court

European Court of Justice

Prohibiting Islamic headscarf and other religious signs at workplace isn’t discriminatory

In a significant ruling, the European Court of Justice held that prohibiting Islamic headscarf and any visible sign of political, ideological or religious beliefs does not constitute discrimination on the grounds of religion.

https://www.scconline.com/blog/post/2021/07/20/religious-neutrality-policy/

 


 Legislation updates 

Issuance and listing of securities by Start-ups, SMEs and SPAC notified via International Financial Services Centres Authority (Issuance and Listing of Securities) Regulations, 2021 

The International Financial Services Centres Authority has notified the International Financial Services Centres Authority (Issuance and Listing of Securities) Regulations, 2021 to ensure that capital markets in IFSCs support the financing of innovative business models and also, for the Issuance and listing of securities by Start-ups, Small Medium Enterprises and Special Purpose Acquisition Company.  

https://www.scconline.com/blog/post/2021/07/23/issuance-and-listing-of-securities-by-start-ups-smes-and-spac-notified-via-international-financial-services-centres-authority-issuance-and-listing-of-securities-regulations-2021/  

 

Rates of Dearness Allowance to Central Government employees revised 

The Ministry of Finance has issued a memorandum on the revision of Dearness Allowance to the Central Government employees. The dearness allowance has been enhanced from 17% to straight 28% of the basic pay for the employees with effect from July 01, 2021. 

https://www.scconline.com/blog/post/2021/07/23/rates-of-dearness-allowance-to-central-government-employees-revised/  

 

IBBI issues circular for filing of Form CIRP 8 under the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 

 IBBI has released Form CIRP 8 which as per Regulation 40B of CIRP Regulation, every resolution professional is required to file intimating details of his opinion and determination under regulation 35A, by 140th day of the insolvency  commencement date. The Form CIRP 8 is required to be filed for all corporate insolvency resolution processes ongoing or commencing on or after 14th July 2021. 

For the Format of FORM CIRP 8, read our story on SCC Online Blog 

https://www.scconline.com/blog/post/2021/07/22/ibbi-issues-circular-for-filing-of-form-cirp-8-under-the-ibbi-insolvency-resolution-process-for-corporate-persons-regulations-2016/  

SEBI issues Circular on “Block Mechanism in demat account of clients undertaking sale transactions” 

SEBI issues Circular on “Block Mechanism in demat account of clients undertaking sale transactions” after extensive consultations with Depositories, Clearing Corporations and Stock Exchanges to provide a mechanism of block in the demat account of clients undertaking sale transactions. 

https://www.scconline.com/blog/post/2021/07/19/sebi-issues-circular-on-block-mechanism-in-demat-account-of-clients-undertaking-sale-transactions/  

Appointments & TransfersNews

Appointment of Additional Judge

President of India, appoints Shri Satyen Vaidya, to be an Additional Judge of the Himachal Pradesh High Court, for a period of two years with effect from the date he assumes charge of his office.

Shri Satyen Vaidya, B.A., LL.B., enrolled as an Advocate on 03.11.1986, has more than 31 years of practice at District Courts Shimla from 1986 to 2009 and since 2009 at Himachal Pradesh High Court in Civil, Criminal, Constitutional, Service and Arbitration matters.


Ministry of Law and Justice

[Notification dt. 25-06-2021]

Case BriefsCOVID 19High Courts

Meghalaya High Court: The Division Bench of Biswanath Somadder, CJ. and H.S. Thangkhiew, J., decided on the question as to whether vaccination can at all be made mandatory and whether such mandatory action can adversely affect the right of a citizen to earn his/her livelihood.

The Court at first deemed fit to discuss the fundamental rights in question at length and drew an analogy that right to health care, which includes vaccination, is a fundamental right. The Court however believed that vaccination by force or being made mandatory by adopting coercive methods, vitiates the very fundamental purpose of the welfare attached to it.

Any action of the State which is in absolute derogation of this basic principle is squarely affected by Article 19(1)(g). Although, Article 19(6) prescribes “reasonable restrictions” in the “interest of general public”, the present instance is exemplary and clearly distinguishable. It affects an individual‟s right, choice and liberty significantly more than affecting the general public as such or for that matter, the latter‟s interests being at stake because of the autonomous decision of an individual human being of choosing not to be vaccinated.

The Court found that in this case there is a clear lack of legitimacy in prohibiting freedom of carrying on any occupation, trade or business amongst a certain category or class of citizens who are otherwise entitled to do so, making the notification/order illconceived, arbitrary and/or a colourable exercise of power. The Court further opined that the burden lies on the State to disseminate and sensitize the citizens of the entire exercise of vaccination with its pros and cons and facilitate informed decision making particularly in a situation where the beneficiaries are skeptical, susceptible and belonging to vulnerable/marginalised section of the society, some of whom are also gullible members of the indigenous communities who are constantly being fed with deliberate misinformation regarding the efficacy of vaccination by some persons/organisations with oblique motives. The welfare nature of the State isn‟t for coercive negative reinforcement by seizing their right to livelihood, proscribing them to earn from their occupation and/or profession without any justification in the garb of public interest, but lies in walking together with concerted efforts attempting to effectuate a social order as mandated under Article 38 by approaching the people directly by engaging them in one-to-one dialogues and dwelling on the efficiency and the positive aspects of administering of the vaccine without compromising its duty under Article 47 nor abrogating its duty to secure adequate means of livelihood under Article 39(a).

Advocate General submitted that it has been advised by the Principal Secretary to the Government of Meghalaya, Health and Family Welfare Department, that the orders in the districts have to be seen as a “persuasive advisory” and not as coercion with regards to the issue of vaccination. The Principal Secretary to the Government of Meghalaya, Health and Family Welfare Department, while issuing the guidelines on 22-06-2021 has also laid down 7 points that are required to be considered for effecting change in the COVID vaccine compliance in the respective districts of Meghalaya. The Principal Secretary has clearly stated that the existing orders on vaccine compliance may be modified in the light of the new policy directions as spelt out in the guidelines and the requirement of vaccination should be directory and not mandatory. The Court agreed that it was the right step in this direction.

The Court further issued certain directions in the interest of general public:

  • All shops/establishments/local taxis/auto-rickshaws/maxi cabs and buses should display prominently at a conspicuous place, a sign, “VACCINATED”, in the event all employees and staff of the concerned shop/establishment are vaccinated. Similarly, in the case of local taxis/auto-rickshaws/maxi cabs and buses where the concerned driver or conductor or helper(s) are vaccinated.
  • All shops/establishments/local taxis/auto-rickshaws/maxi cabs and buses should display prominently at a conspicuous place, a sign, “NOT VACCINATED”, in the event all the employees and staff of the concerned shop/establishment are not vaccinated. Similarly, in the case of local taxis/auto-rickshaws/maxi cabs and buses where the concerned driver or conductor or helper(s) are not vaccinated.

[Registrar General, v. State of Meghalaya, 2021 SCC OnLine Megh 130, decided on 23-06-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Mohammad Rafiq, CJ. and Vijay Kumar Shukla, J., heard a petition which was in pursuance to the detailed order passed on 10-01-2014. It was in regard to the creation of the Directorate of Prosecution in terms of Section 25-A of the Code of Criminal Procedure. On 23-08-2017 the Court had disapproved the practice of appointment of Public Prosecutors on a contract basis and categorically held that it cannot be a post for appointment on contract basis as such the post is pivot for the administration of justice.

On 28-08-2019 the Government Advocate was granted a week’s time to seek instructions and apprise the Court of the steps taken by the Government to fill up the posts of Public Prosecutors and Assistant Public Prosecutors. On 29-09-2019 he informed the Court that a Gazette notification had been published in terms of Section 24 sub-section (1) of the Code of Criminal Procedure as of 07-01-2019.

Mr Siddharth R. Gupta, Advocate appearing for the High Court submitted that this matter was pending before this Court for quite some time and the practice of engaging Panel Lawyers to appear before the High Court in criminal matters even without experience of seven years was being wrongly followed and that the State Government should comply the requirement of Section 24(1) and Section 24 (7) of CrPC before authorizing any Advocate to appear as Public Prosecutor before the High Court.

The Court directed the Respondent-State to clarify certain stands,

  • Whether one Public Prosecutor is appointed for each Court in all districts of the State to attend the Criminal matters and if not whether multiple number of Courts are assigned to one available Public Prosecutor and if yes, give the details thereabout?
  • As to how many posts in the cadre of Additional District Prosecution Officers, District Prosecution Officers and Deputy Director (Prosecution) are lying vacant in the State?
  • Whether the promotions may not be granted against the unfilled posts of the quota of promotion in the cadre of the District Prosecution Officers and Deputy Director (Prosecution) to the extent not affected by order of the Hon’ble Supreme Court, with regard to which there is no dispute?
  • Can the State Government not consider appointing Additional District Prosecution Officers/District Prosecution Officers on retainership basis for fixed duration against unfilled posts of Public Prosecutors?
  • Whether a Panel Lawyer may appear in the Court before the High Court in criminal matters like Criminal Appeals, Bail Applications, Criminal Revisions, application for suspension of sentence, MCRCs etc. even without having practice of minimum of seven years and without the consultation with the High Court as required under Section 24(1) of Cr.P.C.?
  • How can appointment on contract basis without recourse to Section 24(4) of Cr.P.C. on the basis of panel proposed by the District Magistrate in consultation with the Sessions Judge particularly when Section 24(5) of Cr.P.C. provides that no person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4) of Section 24 of Cr.P.C.?

The Central Government was further asked to provide with the details with regard to compliance of Section 24(1) and Section 24(4) of Cr.P.C. as to whether the Advocates who appear on behalf of the agencies like Central Bureau of Investigation, Enforcement Directorate etc. before High Court and courts subordinate thereto, are appointed by process of consultation with the High Court or Sessions Judge, as the case may be, in terms of Section 24(1) and 24(4) of Cr.P.C. respectively.

Matter to be taken up on 26-07-2021.[Gyan Prakash v. Govt. of M.P., 2021 SCC OnLine MP 1211, decided on 22-06-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Legal RoundUpWeekly Rewind

Watch the latest episode of SCC Online Weekly Rewind Episode 14 featuring Devika Sharma, Senior Editorial Assistant (Legal).


Pride Month

Judge “removes Lordship’s hat” for framing guidelines for proper recognition of LGBTQIA+ rights, acknowledges “gurus” for pulling him out of darkness of ignorance

When the world is celebrating pride month, a very progressive order came from the Madras High Court this week. The Court issued interim directions for proper recognition of the rights of LGBTQIA+ community. Another significant fact about the matter is that before penning this order, the Presiding Judge himself went through a counselling session and interacted with a transwoman to understand the emotions and realities of the community. The order notes that this session “ultimately convinced the Bench that it must change all the preconceived notions and start looking at persons belonging to the LGBTQIA+ community as they are.”

scconline.com/blog/post/2021/06/08/rights-of-the-lgbtqia-community/


Supreme Court Updates

Children orphaned by COVID-19| No illegal adoption; no discontinuance of education. Directions issued  

Considering the need for continuous monitoring of the implementation of the schemes in favour of the children who have become orphans or have lost one of their parents due to the COVID-19 pandemic, the Supreme Court has issued a series of directions to ensure immediate relief to such children. 

The Court emphasised on the need to ensure that the education of such children is not discontinued and also that no illegal adoption takes place.  

https://www.scconline.com/blog/post/2021/06/11/children-orphaned-by-covid-19-no-illegal-adoption-no-discontinuance-of-education-heres-the-list-of-supreme-court-directions/  

Financial relief a policy matter: SC refuse to entertain plea seeking loan moratorium extension 

In another development the Supreme Court has refused to pass any direction in the petition seeking effective and remedial measures to redress and overcome the financial stress and hardship faced by the borrowers of the country during the second wave of Covid 19 and lockdown. The Court said that financial relief is a policy matter and left it to the Government to take a decision.  

https://www.scconline.com/blog/post/2021/06/11/covid-19-second-wave-financial-relief-a-policy-matter-similar-order-already-passed-sc-refuse-to-entertain-plea-seeking-loan-moratorium-extension/  

AIIMS INI-CET exam to be postponed by at least a month 

Coming to the aid of doctors aspiring for admission to the Post Graduate courses for the July 2021 session in the units of AIIMS (All India Institute of Medical Sciences), PGIMER Chandigarh, JIPMER Puducherry and NIMHANS Bengaluru, the Supreme Court has directed AIIMS to postpone the Institute of National Importance Combined Admission Test (INI CET) examination by at least a month.  

 AIIMS had notified the date for conduct of INI CET 2021 on 16th June, 2021.  

https://www.scconline.com/blog/post/2021/06/12/aiims-ini-cet-exam-to-be-postponed-by-at-least-a-month-supreme-court/  


High Court Updates

Footpaths are not for campaigns and protests

Kerala High Court

Kerala High Court, while addressing the issue of encroachments of footpaths for the purpose of holding assemblies and protests, stated that,

“Footpaths are not intended for the purpose of holding campaigns, demonstrations, etc., by political parties and other organizations, by causing any obstruction whatsoever to free movement of pedestrians. No political party or organization can be permitted to encroach footpath or right of way of public roads…forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances.”

Link: https://www.scconline.com/blog/post/2021/06/12/right-of-footpath/

Toon Controversy | Cartoonist wanting to express anger, cannot be construed as defamation: Madras HC quashes criminal case against cartoonist, says cannot teach ethics to people

In a very interesting case, Madras High Court noted that a cartoonist had published a cartoon on his facebook page regarding a self-immolation incident and complaint was filed against him under Sections 501 of IPC and Section 67 of the Information and Technology Act, 2000, which raised the question Where from the fundamental rights of freedom of thought and expression must begin and where must it end?

To which the Court answered that:

Freedom of thought and expression is subject to the limitations that have been set out in the Article 19(2) of the Constitution of India.

Just like, any other citizen, a cartoonist is also bound by the law and in the form of a cartoon, he cannot defame anyone.

Link: https://www.scconline.com/blog/post/2021/06/08/toon-controversy/

“Singh + Singh” prima facie deceptively similar to “Singh & Singh”: HC grants interim relief to law firm in trademark infringement case

In a very interesting case of trademark infringement, the Delhi High Court has granted interim injunction in favour of Singh and Singh Law Firm LLP. The Court found that “Singh + Singh” – trademark of the defendant firm, prima facie appears to be deceptively similar to “Singh and Singh” – which is the petitioner’s trademark. The defendants Singh
+ Singh Laywers LLP have been restrained from using the impugned mark till the date of next hearing which is on 23rd September.

Link: https://www.scconline.com/blog/post/2021/06/07/law-firm-singh-singh/

 


Tribunals/Commissions Updates

SEBI bars Director of Franklin Templeton AMC, wife from accessing securities markets for 1 yr

SEBI, while barring a director of Franklin Templeton Asset Management Company and his wife from accessing securities markets for 1 yr, made a very significant observation in this insider trading matter that:

while directors are not prohibited from trading in units of the schemes managed by the Asset Management Company, they should ensure that such trading conforms to ethical and moral standards and legal norms expected to be complied by a person entrusted with quasi-fiduciary responsibilities.

Link: https://www.scconline.com/blog/post/2021/06/10/franklin-templeton/

NCLAT responds to a very marked question that whether Banks can debit amounts from Corporate Debtor Company after Moratorium Order?

The National Company Appellate Tribunal, while making an observation that Banks cannot freeze accounts, nor can they prohibit the ‘Corporate Debtor’ from withdrawing the amount as available on the date of the moratorium for its day-to-day functioning, held that banks cannot debit any amounts from the account of the ‘Corporate Debtor Company’ after the Order of moratorium, as it amounts to recovery of the amount.

Link: https://www.scconline.com/blog/post/2021/06/10/moratorium/

 


Legislation Updates

FSSAI issues order for mandating the mention of FSSAI license/ registration no. on the receipts and invoices by Food businesses 

On June 08, 2021, the Food Safety and Standards Authority of India (FSSAI) issued an order for mandating the mentioning of FSSAI license/ registration number on receipts/ invoices/ cash memo/ bills etc. by food business on sale of food products. 

https://www.scconline.com/blog/post/2021/06/11/fssai-issues-order-for-mandating-the-mention-of-fssai-license-registration-no-on-the-receipts-and-invoices-by-food-businesses/  

Due date for GST compliances extended 

The Central Board of Indirect Taxes and Customs vide notification no. 24/2021 dated 01.06.2021 has extended due date of compliances which fall during the period from “April 15, 2021 to June 29, 2021  has been extended till 30.06.2021.  

https://www.scconline.com/blog/post/2021/06/12/due-date-for-gst-compliances-extended/  

Gujarat Goods and Services Tax (Fourth Amendment) Rules, 2021 

On June 02, 2021, the Finance Department of Gujarat has issued the Gujarat Goods and Services Tax (Fourth Amendment) Rules, 2021 to amend the Gujarat Goods and Services Tax Rules, 2017. 

Refer to the SCC Online Blog for detailed list of Amendments.  

https://www.scconline.com/blog/post/2021/06/12/gujarat-goods-and-services-tax-fourth-amendment-rules-2021/  

 SC releases draft model rules for Live streaming and recording of proceedings 

The e-committee of the Supreme Court released the Draft Model Rules for Live-Streaming and Recording of Court Proceedings on June 7, 2021. A sub-committee consisting of judges of the Bombay, Delhi, Madras and Karnataka High Courts was constituted to frame model live streaming Rules. These model rules are aimed to provide a balanced regulatory framework for live streaming and recording of court proceedings to bring greater transparency, inclusivity, and access to justice. 

https://www.scconline.com/blog/post/2021/06/10/sc-releases-draft-model-rules-for-live-streaming-and-recording-of-proceedings/  

Late fee waiver under Maharashtra Value Added Tax 

The Government of Maharashtra has amended the Maharashtra Value Added Tax Act, 2002 vide notification dated 03.06.2021. The amendment allows the dealers who are liable to file return under Rule 17(c ) (4B) and Rule 18(1A) of the Act and who have not filed return for the period of March 2021, April 2021 and May 2021; such return shall be filed on or before 30th June, 2021. The late fee charges are subsequently waived. The tax payable, as per the return, shall also be paid by 30th June 2021. 

https://www.scconline.com/blog/post/2021/06/09/late-fee-waiver-under-maharashtra-value-added-tax/  


New Release by Eastern Book Company

Simply, Legal! Torts by Shweta Vishwanathan 

In this simple and very easy to understand book on Torts, the author Shweta Vishwanathan has used illustrations to make it entertaining. All the topics under Tort Law such as Vicarious Liability, Nuisance, Negligence, Defamation, etc. have been taught in a fun and conversational manner to bring back the fun of studying the basic laws of India. In this book, the principles of Tort Law are linked with everyday examples to bring home a realization that law is all around you and not some isolated, complicated thing standing by itself. This book is useful not just for novices who are not initiated into law but also for lawyers and judges who want to brush up their fundamentals over a period of time. 

https://www.ebcwebstore.com/product_info.php?products_id=99097536  

Civil  Procedure  Code  by C.K. Takwani , 9th Edition  

Civil  Procedure  Code  by C.K. Takwani provides an interesting and lucid study of the fundamental principles of civil procedure in a logical sequence. The topic-wise treatment of the subject along with references to academic writings and the judicial decisions makes the study of civil procedure  more  meaningful  and  comprehensible.  This book explains complex legal concepts with clarity and coherence as well as covers   all aspects and dimensions of law relating to Civil Procedure and Limitation in India.  

The current edition covers  all legislative developments including a new chapter on Commercial Courts Act, 2015 as well as the Rulings on the subject by the Supreme Court as well as the High Courts up to (2020) 16 SCC. 

https://www.ebcwebstore.com/product_info.php?products_id=740  

R.V. Kelkar’s Criminal Procedure by Revised by K.N Chandrasekharan Pillai 

This classic work provides an interesting study of the fundamental principles of criminal procedure in a logical sequence. The author has incorporated all recent developments in the field of criminal procedure since the publication of the last edition in 2014. 

The author has also drawn attention to some ticklish aspects of the Code with a view to foster new thinking in the light of new developments so that criminal procedure law may grow in tune with the times. 

https://www.ebcwebstore.com/product_info.php?products_id=783  

Lectures on Administrative Law by C.K. Takwani, 7th Edition  

Lectures on Administrative Law by Justice C.K. Thakker (Takwani) is the most sought after work on this subject among law students and members of the Bar. 

The Seventh Edition has taken note of development on the subject in India and also in foreign countries. Case law up to January 2021 has been included along with addition of certain new topics. Further, a new feature of Suggested Readings is included which is a compilation of articles by legal luminaries to widen the scope of discussion.  

This book will be immensely useful to students of LL B and LL M, administrators, judges, advocates, researchers and those interested in acquiring knowledge of this subject. 

https://www.ebcwebstore.com/product_info.php?products_id=934 

P. Sarathi’s Law of Evidence by K. A. Pandey

A classic work,  V. P. Sarathi’s Law of Evidence clarifies and explains the complicated rules governing the law of evidence in a straightforward and easily comprehensible style. 

The revising author has updated the current edition of the book with the latest case law and statutory changes which have taken place since the last edition. 

With the enormous growth of Information Technology, electronic records have replaced paper-based transactions and consequently the use of digital and electronic signatures to authenticate these records. This edition exhaustively deals with this topic including the pronouncement of the Supreme Court in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.  

https://www.ebcwebstore.com/product_info.php?products_id=909  


New Feature | SCC Online Web Edition

Before bidding adieu, let me also tell you that SCC Online has designed a very user-oriented feature for saving your time on legal research. Now you can refer to any provision of any statute, or study any Article of the Constitution discussed in the judgments and digest notes by a single click or a single tap through this amazing feature from SCC Online. Our team is committed to cater to all your legal research needs with a single interface.

Case BriefsHigh Courts

Orissa High Court: The Division Bench of Dr S. Muralidhar, CJ. and Savitri Ratho, J., took up a matter which was pursuant to a direction which was issued on 09-03-2021 wherein compliance reports were asked to be submitted by the Member Secretary, Orissa State Legal Services Authority (OSLSA). The first concerned the issue regarding prisoners who were unable to be released despite being granted bail, the issues of early release of prisoners, and the conduct of the Jail Adalats. The second report was regarding compliance of the directions issued by this Court on the surprise jail visits by the District Magistrate and Secretaries of the DLSA or TLSC, on the conditions of the jails, conditions of the prisoners, issues of overcrowding and the status of facilities within the jails.

Mr G. Mishra, Senior Advocate (Amicus Curiae) for the petitioner filed a compilation which included, inter alia, the detailed order dated 07-05-2021 passed by the Supreme Court of India in Suo Motu Writ Petition (C) No.1 of 2020 (In Re: Contagion of COVID 19 virus in prisons). He pointed out that the status of occupancy of jails as far as Odisha was concerned has been uploaded on the website of the DG Prisons in compliance with the said directions. He drew the attention of the Court to the overcrowding of prisons.

The Court directed the State of Odisha to place before it a detailed action plan for dealing with this grave situation which requires immediate attention by 28-06-2021. The Court opined that there was an urgent need to decongest the prisons and to accommodate the prisoners in excess of the holding capacity of the concerned jail to be shifted in a phased manner n other safe and secure premises, which could be by upgrading other state buildings/facilities to meet the requirements of prisons.[Krushna Prasad Sahoo v. State of Odisha, 2021 SCC OnLine Ori 646, decided on 31-05-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsCOVID 19High Courts

Himachal Pradesh High Court: A Division Bench of L. Narayana Swamy and Anoop Chitkara JJ., took stock of the situation and laid necessary directions.

The present petition has been filed as the Government of India has directed the State Governments to convert PHCs into 30 bedded ICU hospitals with oxygen facilities and therefore State Government is supposed to submit what steps have been taken to convert these PHCs into ICU hospitals with oxygen facilities.

The Court thus directed “the State Government to make submission as to what steps the State Government has taken to convert these PHCs into ICU hospitals with oxygen facilities.”

The Court further taking stock of the situation regarding RTPCR tests in the State observed if the RTPCR tests are not conducted in war footing i.e. more than twenty to thirty thousand per day then the fatalities will proportionately go higher and by the time the RTPCR test is conducted, the incubation period will exceed and that may go out of control of the Government. The Court held “the Government has again to accelerate its work in combating the COVID-19.”

On submission made by Mr. Ajay Vaidya that some makeshift hospitals with oxygen facilities having 1000 beds have been opened and thus the Court directed “decentralized opening of ICU beds by converting PHCs is of paramount importance.”

Ms. Sneh Bhimta submitted about non-availability of ICU beds in Kullu and Lahul & Spiti, the Court directed “State Government to make submission as to whether ICU beds are provided to the COVID patients in both the aforesaid areas.”[Court on its Own Motion v. State of HP, 2021 SCC OnLine HP 4683, decided on 25-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

Counsel for Petitioner: Mr. B.N. Misra and Ms. Vandana Misra

Counsel for Union: Mr. Balram Sharma

Counsel for State: Mr.Ajay Vaidya

Counsel for the intervener: Mr.Bimal Gupta and Ms. Sneh Bhimta and Ms.Yogesh K. Chandel

Case BriefsHigh Courts

Bombay High Court: Milind N. Jadhav, J., addressed a matter with regard to the amendment of pleadings.

Petitioners have submitted that they are aggrieved with the Orders passed by Civil Judge, Junior Division on 17-11-2016.

Factual Matrix

Petitioners were the original defendants and respondents the legal heirs of the original plaintiff. Original Plaintiff had filed the Civil Suit against the defendants for permanent injunction in respect of the suit property. Since the original plaintiff expired in 2015, his legal heirs are present respondents.

Petitioners objected to the amendment proposed in regard to the fact that since the original defendant had expired in 2014, hence his legal heirs (present petitioners) were required to be brought on record.

The said amendment was objected to on the ground of maintainability and limitation.

It was added that, if the amendment would be allowed it would change the nature of the suit and a completely different relief would be introduced.

With regard to the limitation, it was stated that the cause of action to see the relief arose in the year 2008 and the application was filed after a period of 8 years.

Analysis, Law and Decision

Bench referred to the provision of Order 6 Rule 17 related to the amendment.

Order VI Rule 17:

“17. Amendment of pleadings. – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

Court’s Power regarding Amendment of Pleadings

Court noted that though the Courts have very wide discretion in the matter of amendment of pleadings, Court’s power must be exercised judiciously and with great care while deciding the applications for amendment.

What does the Court need to consider while granting amendment?

Principal Condition: It is required to be considered by the Court, whether the grant of the amendment is necessary for the determination of the real controversy in the suit.

The above condition is the basic test to govern the Court’s discretion on granting or refusing amendment.

With respect to refusal or grant, the Supreme Court’s decision in Revajeetu Builders & Developers v. Narayanswamy & Sons (2009) 10 SCC 84, has to be taken into consideration.

Bench in view of the above discussion accepted the petitioner’s submissions.

Barred by Law of Limitation

Amendment has been sought after 8 years from the denial of the title. Under the provisions of Article 58 of the Limitation Act, 1963, the maximum period of limitation allowed is 3 years and thus, the action on the part of the respondents (plaintiffs) was clearly barred by the law of limitation.

Since the original suit was a suit simpliciter seeking an injunction, the amendment sought to seek declaratory relief of title could not have been allowed and granted.

Applying the principles laid down in clause (c) and (d) of the Supreme Court decision in Anathula Sudhakar v. P. Buchy Reddy (dead) by LRs., (2008) 4 SCC 594, it can be summarized that respondents’ (plaintiffs) application filed on 25-10-2016 after a time gap of almost 8 years was far beyond the allowable limitation period and was clearly barred by law of limitation.

Adding to the above, it was stated that relief of seeking declaratory title alters the nature of original suit for injunction. Hence the application being allowed for amendment needs to be set aside.[Eknath Nivrutti Hegadkar v. Aagatrao Dyanu Ghodake, 2021 SCC OnLine Bom 770, decided on 01-6-2021]


Advocates before the Court:

Mr. Surel S. Shah for the Petitioners

Mr. Prasad Kulkarni for the Respondents

Legal RoundUpWeekly Rewind

The 12th Episode of SCC Online Weekly Rewind featuring Devika Sharma, Senior Legal Editor bringing you the most important and interesting stories from the field of law is out now! Check out the written episode below.

TARUN TEJPAL CASE

22-pointer comprehensive analysis of Tarun Tejpal’s acquittal order

The most highlighted development of the week was the judgment of the Additional Sessions Court at Mapusa, Goa, which acquitted Tarun Tejpal, former Editor-in-Chief of Tehelka, who was accused of committing rape on a journalist. The court gave benefit of doubt to Tejpal, noting crucial lapses in investigation and major contradictions and improvements in testimony of the prosecutirx. The incident is of 2013 which allegedly happened during THiNK Fest, organised by Tehelka in Goa that year. Now, the State of Goa has appealed against this order before the Bombay High Court. We have studied the entire 527-pages judgment of the Sessions Court and prepared a 22-pointer comprehensive analysis.

https://www.scconline.com/blog/post/2021/05/28/rape-accused-tarun-tejpal/


SUPREME COURT

Courts need to be extra careful while dealing with Dowry Death cases; Guidelines issued

Now moving to the Supreme Court, In an important ruling, the Supreme Court has held that Courts need to be extra careful while conducting criminal trials relating to Section 304­B, IPC that deals with Dowry death.

The Court expressed grave concern on the fact that, often, Trial Courts record the statement of an accused under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. The Court said that the examination of an accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness.

The Court hence issued elaborate guidelines on trial of dowry death cases.

https://bit.ly/3fwnpHj

Apprehension of COVID-19 a ground for anticipatory bail: Supreme Court stays Allahabad High Court’s order

In another matter, A vacation bench of the Supreme Court stayed the Allahabad High Court’s order wherein it was held that apprehension of being infected with COVID-19 after coming into contact with authorities was a valid ground for anticipatory bail.

The High Court had granted anticipatory bail to one Prateek Jain “on account of special conditions and on special ground” and had also issued direction on grant of anticipatory bail on such special grounds.

The Supreme Court staying the said order, directed that the Courts shall not consider the said directions while considering applications for anticipatory bail and must decide each case on its merits.

https://www.scconline.com/blog/post/2021/05/25/apprehension-of-covid-19-a-ground-for-anticipatory-bail-supreme-court-stays-allahabad-high-courts-order-heres-all-you-need-to-know-about-the-case/ 


HIGH COURTS

Delhi High Court

Seizure by police of oxygen concentrators and Covid-related equipment sold at high-profit margins. Is it illegal?

In another matter, the Delhi High Court has confirmed that it is legal for the police to seize oxygen concentrators and other Covid-related equipment being sold at high profit margins in contravention of laws, rules and executive orders.

https://www.scconline.com/blog/post/2021/05/27/oxygen-concentrators/

 

Madras High Court

Malicious prosecution: What, how and who, discussed

Down south, The madras High Court has held that to succeed in a suit for malicious prosecution, the acquittal of the plaintiff alone is not sufficient. Rather, the plaintiff is obliged to prove (i) that the prosecution was without any reasonable and probable cause, and (ii) that it was instituted with a malicious intention, and (iii) that he suffered damage.

Apart from this, the Court also discussed, in detail, the duty of civil court in cases relating to malicious prosecution and also the burden of proof.

https://www.scconline.com/blog/post/2021/05/25/malicious-prosecution/

 Gujarat High Court

Compounding of offence under S. 138 NI Act after conviction can be allowed in exceptional circumstances 

In a ruling on Negotiable Instruments Act, the Gujarat High Court compounded an offence under Section 138 of the Negotiable Instruments Act and set aside the conviction and sentence of the accused, while observing at the same time that generally powers under Section 482 CrPC are not to be exercised when a statutory remedy is available under law but considering the fact that the parties have settled the dispute amicably, the compounding of the offence was permitted.

https://www.scconline.com/blog/post/2021/05/26/section-138-ni-act-4/

 Madhya Pradesh High Court

Directions issued to Police, Judicial Magistrates on arrests and bail

On bail jurisprudence, The Madhya Pradesh High Court has issued elaborate directions to Police and Judicial Magistrates in relation to arrests and bail after it noticed that District Judiciary is extremely tight-fisted when it comes to granting bail. 

The Court noticed that applications are being routinely dismissed on cyclostyled grounds that the offence alleged is serious or that the investigation is still in progress or that the accused may influence the witnesses. In such circumstances, huge burden of bail matters has been shifted to the High Court. Hence, the issuance of certain directions was necessary

https://www.scconline.com/blog/post/2021/05/28/mp-hc-district-judiciary-is-extremely-tight-fisted-when-it-comes-to-granting-bail-leads-to-burden-on-the-high-court-directions-on-arrest-and-bail-issued-to-police-judicial-magistrates/ 

 Jammu and Kashmir High Court

Bail cannot be granted on the ground of delay unless the matter was pending for 5 years or more

In another bail matter, the Jammu and Kashmir High Court held that bail cannot be granted on grounds of delay unless the matter was pending for 5 years or more.

In the case before the Court, though the applicant had been behind the bars for over 13 years, but the appeal against the order of conviction and sentence dated 23rd July 2020 was filed only in August 2020.

https://www.scconline.com/blog/post/2021/05/28/jk-hc-bail-cannot-be-granted-on-the-ground-of-delay-unless-the-matter-was-pending-for-5-years-or-more/

 Punjab and Haryana High Court

All-men SIT to investigate a rape case: Insensitive and deplorable 

In an important matter, a case where an all-men SIT was deployed to investigate a rape case, the Punjab and Haryana High Court said that it was rather intriguing that no lady police official was involved, which is even otherwise the requirement of law in cases of this kind.

The case pertains to 38-year-old widow giving into the sexual demands of CIA officials, after her 19-year-old son was picked up by them in broad day light while he was recovering from Covid-19 infection at his residence. The woman had also alleged that an FIR, allegedly a fake one, was registered against her son under NDPS Act by planting contraband on him so as to arm twist the petitioner.

Reacting to the allegations, the Court said that the same are so grisly and frightful, one can only hope, that the same are fictitious. 

https://bit.ly/2R7STKD


 LEGISLATION UPDATES 

Union Ministry of Health approves guidelines for ‘Near to Home COVID Vaccination Centres (NHCVC) for elderly & differently-abled citizens 

The Union Ministry of Health has accepted the recommendations by the National Expert Group on Vaccine Administration for Covid-19 on the proposed guidelines for Near to Home COVID Vaccination Centres for Elderly & Differently Abled Citizens.

The Technical Expert Committee’s recommendations are aimed to ensure vaccination of Senior Citizens and Differently Abled population having limited mobility due to their physical condition.

https://www.scconline.com/blog/post/2021/05/27/union-ministry-of-health-approves-guidelines-for-near-to-home-covid-vaccination-centres-nhcvc-for-elderly-differently-abled-citizens/

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were notified by the Ministry of Electronics and Information Technology in February, 2021. The Rules provided three-month timeline to social media intermediaries in order to comply with the New IT Rules by May 26, 2021.

https://www.scconline.com/blog/post/2021/05/26/information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-2/

Case BriefsSupreme Court

Supreme Court: Dealing with a case where Bombay High Court had granted interim protection from arrest to an accused facing serious charges for the offences under Sections 406, 420, 465, 468, 471 and 120B of the Penal Code and had ordered “no coercive measures to be adopted/taken”, the 3-judge bench of Dr. DY Chandrachud, MR Shah* and Sanjiv Khanna, JJ deprecated the order of the High Court and held that such a blanket interim order passed by the High Court affects the powers of the investigating agency to investigate into the cognizable offences, which otherwise is a statutory right/duty of the police under the relevant provisions of the Cr.P.C.

“We are at pains to note that despite the law laid down by this Court in the case of Habib Abdullah Jeelani[1] (…), deprecating such orders passed by the High Courts of not to arrest during the pendency of the investigation, even when the quashing petitions under Section 482 Cr.P.C. or Article 226 of the Constitution of India are dismissed, even thereafter also, many High Courts are passing such orders. The law declared/laid down by this Court is binding on all the High Courts and not following the law laid down by this Court would have a very serious implications in the administration of justice.”

Background

The accused were charged for forgery and fabrication of Board Resolution and the fraudulent sale of a valuable property belonging to the appellant company to one M/s Irish Hospitality Pvt. Ltd.

Apprehending their arrest in connection with the aforesaid FIR, the original accused filed anticipatory bail application before the learned trial Court under Section 438 Cr.P.C.

Sessions Court, Mumbai granted interim protection from arrest to the alleged accused. This interim protection was further extended from time to time and continued nearly for a year thereafter.

The High Court passed the impugned interim order directing that “no coercive measures shall be adopted against the petitioners in respect of the said FIR.

The said order was challenged before the Supreme Court on the ground that no reasons whatsoever were assigned by the High Court while passing such an interim order of “no coercive measures to be adopted/taken” against the original accused.

“…the High Court ought to have appreciated that the original accused – respondent nos. 2 to 4 herein are facing very serious charges for the offences under Sections 406, 420, 465, 468, 471 and 120B of the Indian Penal Code and, in fact, the FIR was transferred to the Economic Offences Wing and the investigation was being conducted by the Economic Offences Wing. It is submitted that, as such, the original accused were not co-operating with the investigation after having obtained the interim protection from arrest.”

It was argued before the Court that while enjoying the interim protection from arrest, to file an application for quashing after a period of almost one year and obtain such an order is nothing but an abuse of process.

Analysis

Practice and procedure in case of cognizable offences – Summary of catena of Supreme Court decicions

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, in the ‘rarest of rare cases’. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, has the jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.

What must be kept in mind before passing an interim order of staying further investigation pending the quashing petition?

Before passing an interim order of staying further investigation pending the quashing petition under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India, the High Court has to apply the very parameters which are required to be considered while quashing the proceedings in exercise of powers under Section 482 Cr.P.C. in exercise of its inherent jurisdiction.

“In a given case, there may be allegations of abuse of process of law by converting a civil dispute into a criminal dispute, only with a view to pressurise the accused. Similarly, in a given case the complaint itself on the face of it can be said to be barred by law. The allegations in the FIR/complaint may not at all disclose the commission of a cognizable offence. In such cases and in exceptional cases with circumspection, the High Court may stay the further investigation.”

However, at the same time, there may be genuine complaints/FIRs and the police/investigating agency has a statutory obligation/right/duty to enquire into the cognizable offences.

“Therefore, a balance has to be struck between the rights of the genuine complainants and the FIRs disclosing commission of a cognizable offence and the statutory obligation/duty of the investigating agency to investigate into the cognizable offences on the one hand and those innocent persons against whom the criminal proceedings are initiated which may be in a given case abuse of process of law and the process.”

However, if the facts are hazy and the investigation has just begun, the High Court would be circumspect in exercising such powers and the High Court must permit the investigating agency to proceed further with the investigation in exercise of its statutory duty under the provisions of the Code. Even in such a case the High Court has to give/assign brief reasons why at this stage the further investigation is required to be stayed. The High Court must appreciate that speedy investigation is the requirement in the criminal administration of justice.

What happens in a case where the initiation of criminal proceedings may be an abuse of process of law?

In such cases, and only in exceptional cases and where it is found that non-interference would result into miscarriage of justice, the High Court, in exercise of its inherent powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India, may quash the FIR/complaint/criminal proceedings and even may stay the further investigation.

“However, the High Court should be slow in interfering the criminal proceedings at the initial stage, i.e., quashing petition filed immediately after lodging the FIR/complaint and no sufficient time is given to the police to investigate into the allegations of the FIR/complaint, which is the statutory right/duty of the police under the provisions of the Code of Criminal Procedure.”

Hence, in exceptional cases, when the High Court deems it fit, regard being had to the parameters of quashing and the self-restraint imposed by law, may pass appropriate interim orders, as thought apposite in law, however, the High Court has to give brief reasons which will reflect the application of mind by the court to the relevant facts.

Why passing blanket order as passed in the present case is not the way forward?

“Granting of such blanket order would not only adversely affect the investigation but would have far reaching implications for maintaining the Rule of Law. Where the investigation is stayed for a long time, even if the stay is ultimately vacated, the subsequent investigation may not be very fruitful for the simple reason that the evidence may no longer be available.”

In case, the accused named in the FIR/complaint apprehends his arrest, he has a remedy to apply for anticipatory bail under Section 438 Cr.P.C. and on the conditions of grant of anticipatory bail under Section 438 Cr.P.C being satisfied, he may be released on anticipatory bail by the competent court.

It cannot be disputed that the anticipatory bail under Section 438 Cr.P.C. can be granted on the conditions prescribed under Section 438 Cr.P.C. are satisfied. At the same time, it is to be noted that arrest is not a must whenever an FIR of a cognizable offence is lodged.

However,

“So far as the order of not to arrest and/or “no coercive steps” till the final report/chargesheet is filed and/or during the course of investigation or not to arrest till the investigation is completed, passed while dismissing the quashing petitions under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India and having opined that no case is made out to quash the FIR/complaint is concerned, the same is wholly impermissible.”

Conclusion

i) Such a blanket interim order passed by the High Court affects the powers of the investigating agency to investigate into the cognizable offences, which otherwise is a statutory right/duty of the police under the relevant provisions of the Cr.P.C.;

ii) The interim order is a cryptic order;

iii) No reasons whatsoever have been assigned by the High Court, while passing such a blanket order of “no coercive steps to be adopted” by the police;

iv) It is not clear what the High Court meant by passing the order of “not to adopt any coercive steps”, as it is clear from the impugned interim order that it was brought to the notice of the High Court that so far as the accused are concerned, they are already protected by the interim protection granted by the learned Sessions Court, and therefore there was no further reason and/or justification for the High Court to pass such an interim order of “no coercive steps to be adopted”.

“If the High Court meant by passing such an interim order of “no coercive steps” directing the investigating agency/police not to further investigate, in that case, such a blanket order without assigning any reasons whatsoever and without even permitting the investigating agency to further investigate into the allegations of the cognizable offence is otherwise unsustainable. It has affected the right of the investigating agency to investigate into the cognizable offences.”

[Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra, 2021 SCC OnLine SC 315, decided on 13.04.2021]


[1] State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779

High Court cannot issue a blanket order restraining arrest while refusing to quash the investigation


Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Appearances before the Court

Senior Advocate K.V. Vishwanathan, Advocates Diljeet Ahluwalia, Malak Manish Bhatt, Sachin Patil and Rahul Chitnis

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., emphasised that all stakeholders in the process of administration of justice should discharge their commitments sincerely.

The High Court was set to dispose of a second appeal filed before it in a suit for malicious prosecution. The defendants in the suit had earlier filed a complaint against the plaintiff, who was acquitted by the Judicial Magistrate. Alleging that it was a false complaint filed only to victimise him, the plaintiff filed a suit for malicious prosecution claiming damages from the defendants. The trial court dismissed the plaintiff’s suit, but the first Appellate Court ruled in his favour. Aggrieved, the defendants filed the second appeal which was before the High Court.

Noting the ‘substantial questions of law’ on which the second appeal was admitted, the High Court went on to observe that the formulation conveyed no meaning, it made no sense at all.

Choosing to be frank with an eye on future“, the Court recorded that although Section 100(4) CPC states that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question, what mostly happens in practice is not in strict consonance with the statutory mandate.

The Court said:

Since Section 100(3) CPC states that the appeal memorandum shall precisely state the substantial question of law involved in the appeal, once the Judge is satisfied that a case has been made out for admitting the second appeal, instead of independently formulating the substantial question of law arising in the appeal, instruction is given to the stenographer to copy down certain particular grounds from the appeal memorandum.”

It further noted that if the counsel’s formulation is flawed and defective, the Court record also carries the same vice. Underscoring the commitment that Justice and the judicial system demands, the Court observed:

Since the judicial workload is staggering, it is not fair to expect the judges to expend too much time and energy in proof-reading. The counsel must assume greater responsibility. They must deeply study the case record. Their grasp of the legal principles must be thorough and accurate. The distilled understanding must be reflected in the appeal grounds. They must be properly drafted. There should not be grammatical and spelling errors. The role of stenographers and typists is equally significant. Only if all the stakeholders discharge their commitments sincerely, howlers like what we saw now can be avoided.

Then, the High Court reframed the substantial questions of law involved in the second appeal and decided the appeal on merits holding that only Defendant 1 (out of six defendants) was liable; and the plaintiff was awarded damages amounting to Rs 50,000 with interest. The full report of this case where the High Court has had an elaborate discussion on liability in a suit for malicious prosecution, can be read here:  LINK.

[M. Abubaker v. Abdul Kareem, 2021 SCC OnLine Mad 1934, decided on 21-4-2021 ]


https://www.scconline.com/blog/post/2021/05/25/malicious-prosecution/

High Court Round UpHigh CourtsLegal RoundUp

Here’s a short recap of what we covered under the High Courts section in the month of April 2021.


Allahabad High Court


COVID-19

“Govt. is to blame for chaos; Harsh steps necessary before pandemic spirals to engulf entire population”: All HC orders closing of all establishments (exceptions listed) till 26th April in select districts, asks Govt. to consider complete lockdown for entire State

https://www.scconline.com/blog/post/2021/04/19/allahabad-high-court-4/

Compensation

All HC | What’s the purpose of keeping money in FD where claimant is unable to see colour of compensation?: HC directs Tribunal to disburse entire claim amount to claimant’s account

https://www.scconline.com/blog/post/2021/04/17/motor-vehicles-accident/

Maintenance

All HC | Wife’s appeal against divorce decree withdrawn due to reconciliation and cohabitation with husband. Later, husband passed away. Is she entitled to maintenance under Hindu Adoptions & Maintenance Act? Read on

https://www.scconline.com/blog/post/2021/04/07/maintenance-6/


Bombay High Court


COVID-19

Bom HC | Remdesivir and Tocilizumab injections to be regulated; Collector Nagpur to examine regarding feasibility of making beds available at Mankapur Stadium, Nagpur and Nagpur Nagrik Sahakari Rugnalaya

https://www.scconline.com/blog/post/2021/04/19/covid-19-4/

Bom HC | Reports of RT-PCR Tests to be made available on Whatsapp; COVID positive patients reports to be uploaded within 24 hours on ICMR portal

https://www.scconline.com/blog/post/2021/04/19/rt-pcr-test/

Bom HC | Rise of COVID-19 Cases in State of Maharashtra: State to file information on measures to de-congest jails, to control spread of virus & status of COVID cases

https://www.scconline.com/blog/post/2021/04/20/covid-19-cases-in-prisons/

Bom HC | MoH communication reducing oxygen supply to Maharashtra is “bolt from the blue”: Court directs PRAX AIR to keep supplying 110 MT oxygen per day

https://www.scconline.com/blog/post/2021/04/22/oxygen-supply/

Bom HC | Deficient Remdesivir Drug and Oxygen to COVID-19 Patients: HC directs to hold meeting with manufacturers and procure

https://www.scconline.com/blog/post/2021/04/22/deficient-remdesivir-drug/

Bom HC | “Elderly citizens being asked to choose between devil and the deep sea”: HC not impressed with Centre’s reply on petition for door-to-door vaccination for elderly and disabled citizens

https://www.scconline.com/blog/post/2021/04/23/door-to-door-vaccination/

COVID-19 and Article 25

Bom HC | Religious places of worship closed; Prayer offering in mosque during Ramzaan not allowed in wake of COVID-19: Court discusses scope of Art. 25

https://www.scconline.com/blog/post/2021/04/15/prayers-at-mosque/

COVID Vaccine and Intellectual Property Rights

Bom HC | “Serum Institute coined the term ‘Covishield’, took substantial steps towards development and manufacture”: Court finds no merit in Cutis Biotech’s passing off action

https://www.scconline.com/blog/post/2021/04/21/covishield/

CBI Investigation

Bom HC | Anil Deshmukh ‘prima facie’ committed cognizable offence, but No immediate FIR by CBI. Credibility of State machinery at stake: HC directs CBI to conclude preliminary investigation preferably within 15 days

https://www.scconline.com/blog/post/2021/04/06/anil-deshmukh/

Circumstantial Evidence

Bom HC | Circumstantial Evidence. Wife found dead, can husband be convicted on the basis of him being last seen with wife? Do Police Officers need to substantiate their stand on basis of documents? Read on

https://www.scconline.com/blog/post/2021/04/13/circumstantial-evidence/

Criminal liability

Bom HC | Can administrator of WhatsApp group be held criminally liable for objectionable posts of a group member? HC answers

https://www.scconline.com/blog/post/2021/04/22/administrator-of-whatsapp-group/

Minor’s consent

Bom HC | ‘Consent’ of minor for sexual act who conceived and delivered a baby will be immaterial

https://www.scconline.com/blog/post/2021/04/07/minors-consent-for-sexual-act/

Minor’s property

Bom HC | Minor’s property fraudulently transferred. Can application for such declaration and order for recovery lie in Guardianship Petition? HC elucidates

https://www.scconline.com/blog/post/2021/04/10/guardianship-petition/

Rape and conviction

Bom HC | Father rapes minor daughter, but conviction under S. 376(2) (i) IPC set aside. Why? Read Court’s opinion in light of S. 164 CrPC || Detailed Report

https://www.scconline.com/blog/post/2021/04/06/rape-2/

Quashing of proceedings

Bom HC | Daughter caught in crossfire between parents; Accused under DV Act by mother. HC decides whether allegations inherently probable? [Exhaustive Report]

https://www.scconline.com/blog/post/2021/04/20/domestic-violence-act/

Quota

Explainer | Bombay HC at Goa on Quota in Municipal Polls [Detailed Report]

https://www.scconline.com/blog/post/2021/04/26/elections-3/


Calcutta High Court


COVID-19

Cal HC | Resurgence of COVID-19 | Candidates, aides and associates engaged in election campaigning to encourage and unfailingly observe COVID rules to avert deadly disaster staring at our faces

https://www.scconline.com/blog/post/2021/04/15/resurgence-of-covid-19/

Cruelty by wife

Cal HC | Reckless allegations against husband corroborated by daughter. Affidavit of daughter how far can corroborate husband’s allegations? Court determines while confirming divorce decree against wife

https://www.scconline.com/blog/post/2021/04/08/illicit-relationship/

Election Commission

Cal HC | Issuing circulars and holding meetings not enough to discharge onerous duties of Election Commission of India: Court “unable to reconcile” that EC could not update it on enforcement of circulars

https://www.scconline.com/blog/post/2021/04/23/election-commission-of-india-2/

Maintenance

Cal HC | Pre-requisite for awarding maintenance under Hindu Marriage Act: Independent income of husband or wife to support either is enough? Read on

https://www.scconline.com/blog/post/2021/04/15/maintenance-7/


Chhattisgarh High Court


Bank account

Chh HC | Whether ‘bank account’ can be held to be `property’ within the meaning of S. 102(1) CrPC?  HC explains

https://www.scconline.com/blog/post/2021/04/21/bank-account-2/

Hindu Marriage Act

Chh HC | Application under Or. 9 R. 4 of CPC also attracts provisions under S. 24 of Hindu Marriage Act, 1955

https://www.scconline.com/blog/post/2021/04/05/section-151-cpc/

Mental cruelty by wife

Chh HC | Wife attempts suicide; throttles husband, daughter; assaults mother-in-law; consistently behaves abnormally. Is this mental cruelty, ground for husband to obtain divorce? HC elucidates

https://www.scconline.com/blog/post/2021/04/12/mental-cruelty/

Recruitment

Chh HC | Whether higher qualification presupposes lower qualification always for the purposes of recruitment? HC discusses

https://www.scconline.com/blog/post/2021/04/01/recruitment/

Telephone tapping

Chh HC | Dismissal from service based on telephonic recorded conversation offends Art. 21 of Constitution of India

https://www.scconline.com/blog/post/2021/04/06/telephone-tapping/


Delhi High Court


COVID-19

Del HC | INOX to honour its contract with Delhi hospitals and restore supply of 140 MT oxygen; State should utilise mid-day meal contractors in providing food to needy: Court issues directions

https://www.scconline.com/blog/post/2021/04/20/covid-19-6/

Del HC | Interim Orders pending before Subordinate Courts to stand extended till 16th July, 2021 or until further order

https://www.scconline.com/blog/post/2021/04/20/interim-orders-pending-before-subordinate-courts/

Delhi HC on status of availability of COVID Beds, supply of ventilators, need of medical oxygen and essential medications || “Wastage of a single dose of vaccine is a criminal waste”

https://www.scconline.com/blog/post/2021/04/21/covid-19-7/

9-key points of Delhi High Court decision asking Central Government to swing into action | Rakesh Malhotra v. State

https://www.scconline.com/blog/post/2021/04/21/delhi-high-court/

Del HC | Immediately work out logistics for procuring supply of oxygen; Comply with allocation orders; Supply on emergent basis: Court directs Del Govt. and suppliers

https://www.scconline.com/blog/post/2021/04/22/supply-of-oxygen/

Del HC | Ensure strict compliance of oxygen supply orders or face contempt, criminal, penal action; Provide adequate security to lorries transporting oxygen: HC to Authorities and Centre

https://www.scconline.com/blog/post/2021/04/23/shortage-in-oxygen-supply/

[Supply of Medical Oxygen] Del HC | Stoppage of tankers by one State would have snow balling effect: HC hopeful that with infrastructure for transportation of liquid Oxygen been augmented, the supplies to Delhi would considerably improve

https://www.scconline.com/blog/post/2021/04/27/supply-of-medical-oxygen/

Del HC | ‘We made no request for any hotel, much less Ashoka Hotel’: Notice issued to Delhi Govt. after it reserved 100 rooms in 5-star hotel as Covid facility for Judges, judicial officers, families

https://www.scconline.com/blog/post/2021/04/28/delhi-government/

Del HC | Hoarding of medicines or Oxygen cylinders/ flow metres leads to artificial scarcity, to an extent which may not be there || Detailed Order of COVID-19 Crisis

https://www.scconline.com/blog/post/2021/04/30/covid-19-crisis-2/

Del HC | Delhi Police should immediately release the seized Remdesivir or other Drug used for treating COVID-19 or any Oxygen Cylinders seized from the possession of patients or their attendants || Detailed Order on COVID-19 concerns

https://www.scconline.com/blog/post/2021/04/30/covid-19-crisis/

Delhi HC comes down heavily on Central government; Warns of contempt proceedings if it fails to supply allocated medical Oxygen on urgent basis

https://www.scconline.com/blog/post/2021/05/01/covid-19-delhi-hc-comes-down-heavily-on-center-government-warns-center-of-contempt-proceedings-if-it-fails-to-supply-allocated-medical-oxygen-on-urgent-basis/

Breach of privacy

Del HC | Including name or likeness of a person on pornographic website is breach of privacy: Court suggests template directions for meaningful compliance of injunction and restraining orders

https://www.scconline.com/blog/post/2021/04/26/breach-of-privacy/

Defamation

Del HC | Does CrPC allow amendment before taking cognizance and is there any provision to amend criminal complaint? Read Court’s opinion while deciding India Today’s Editor-in-Chief’s application in defamation case

https://www.scconline.com/blog/post/2021/04/09/defamation-4/

Delhi riots

Del HC | Allegations against rioter Shahrukh not confined to participation, but leading large crowd releasing open fire shots: Bail denied to Delhi Riots accused

https://www.scconline.com/blog/post/2021/04/15/riots/

Domestic violence

Del HC | If a proceeding is pending before Family Court, would this warrant the application under S. 12 Domestic Violence Act to be transferred to Family Court? Read on

https://www.scconline.com/blog/post/2021/04/08/family-court/

Ex-parte decree

Del HC | Scope of Or. 9 R. 13 CPC application: Whether summons duly served and/or whether defendant was prevented by ‘sufficient cause’ from appearing? Explained

https://www.scconline.com/blog/post/2021/04/27/sufficient-cause/

Guardianship and financial expenses

Del HC | If a person is incapacitated and relative taking care of his medical expenses requires money from his bank account, is that permitted under law? Can Bank permit withdrawal of money? Read on

https://www.scconline.com/blog/post/2021/04/09/incapacitated/

Investigation

Del HC | Is it within Court’s power to direct for further investigation on finding defects in the same? Death caused by suicide, Allegations of Dowry Death | Why FIR was registered after 10 months of deceased’s death? [Detailed Report]

https://www.scconline.com/blog/post/2021/04/06/dowry-death/

Public place

Del HC | Vehicle even if occupied by only one person would constitute a ‘public place’ and wearing of mask therein would be compulsory

https://www.scconline.com/blog/post/2021/04/08/covid-19/


Gauhati High Court


Citizenship

Gau HC | [NRC] Citizenship cannot be denied merely because linkage with relatives was not shown; HC sets aside order of Tribunal declaring man a foreigner

https://www.scconline.com/blog/post/2021/04/21/citizenship/


Gujarat High Court


COVID-19

Guj HC | ‘Harrowing Tales, Unfortunate and Unimaginable Difficulties’ HC takes suo moto cognizance due to upsurge in COVID-19 cases and asks what steps Government will take

https://www.scconline.com/blog/post/2021/04/12/covid-19-2/

Guj HC | Setup RT PCR test labs in all districts; Accept deficiencies publicly and take immediate remedial steps, etc.: Court flags issues for State’s consideration

https://www.scconline.com/blog/post/2021/04/19/rt-pcr-labs/


Himachal Pradesh High Court


Custodial interrogation

HP HC | A balance has to be maintained between the right of personal liberty and right of Investigating Agency to investigate and arrest an offender for the purpose of investigation

https://www.scconline.com/blog/post/2021/04/07/section-438-crpc/

Freedom of press

HP HC | If conduct of an editor of a newspaper is under scanner, suspension of accreditation till charges are cleared would not amount to violation of freedom of press

https://www.scconline.com/blog/post/2021/04/15/editor-of-newspaper/

Maintenance

HP HC│ Can a wife give up her right to an enhanced rate of future maintenance through a contract? Will such contract be valid or void? Read on

https://www.scconline.com/blog/post/2021/04/30/right-of-wife/

Will

HP HC | Where the document is written by one person and signed by another, the handwriting of the former and the signature of the later have both to be proved in view of S. 67 of the Evidence Act

https://www.scconline.com/blog/post/2021/04/27/will-3/


Jammu and Kashmir High Court


Promotion

J&K HC | “Right to consideration for promotion is a fundamental right”; HC directs government to obviate stagnation in service

https://www.scconline.com/blog/post/2021/04/23/promotion/

Teaching

J&K HC | “Their engagement in private coaching invariably slows down their performance in the Government schools”; HC upholds the ban on private tuition by Government teachers

https://www.scconline.com/blog/post/2021/04/06/private-tuition/


Kerala High Court


Fair elections

Ker HC| ‘Ensure ‘no double voting by any voter’; HC directs Election Commission of India to be on war footing to ensure fair and democratic election

https://www.scconline.com/blog/post/2021/04/01/ker-hc-ensure-no-double-voting-by-any-voter-hc-directs-election-commission-of-india-to-be-on-war-footing-to-ensure-fair-and-democratic-election/

Female employment

Ker HC | S. 66(1)(5) of Factories Act: Protective Provision or not? Can this provision act as a hurdle in the way of a woman being considered for employment? Employment Opportunity only for Male Candidates v. Female Candidates [Detailed Report]

https://www.scconline.com/blog/post/2021/04/20/women-employment/

Jurisdiction under Article 227

Kar HC | ‘thou art weighed and found wanting’; Writ Court exercising limited supervisory jurisdiction under Art. 227 Constitution of India cannot run a race of opinions with the Court of impugned order

https://www.scconline.com/blog/post/2021/04/05/writ-court/

Live-in relationship

Ker HC | Whether a Child born out of a live-in relationship is to be treated as a child born to a married couple? Status of Children in a live-in relationship & mother’s decision to recognize fatherhood of child || High Court unwinds

https://www.scconline.com/blog/post/2021/04/26/live-in-relationship-2/

Packaged drinking water

Ker HC | Packaged drinking water units not to continue without proper clearance and permits; no low-quality ice bars to be distributed: Detailed report on Unauthorised Packaged Drinking Water units operating in State

https://www.scconline.com/blog/post/2021/04/15/packaged-drinking-water-units/

Summons

Ker HC | Service of summons through Whatsapp; Is it valid in law? HC clarifies

https://www.scconline.com/blog/post/2021/04/27/service-of-summons/

Undertrials

Ker HC | “Their livelihood will be lost, if they fail to report back for duty”; HC directs Sessions Court to release passports of under-trial labours employed abroad

https://www.scconline.com/blog/post/2021/04/06/undertrial-labours/


Meghalaya High Court


Compromise in Non-compoundable cases

Megh HC | Whether a criminal proceeding involving non-compoundable offence can be set aside and quashed, all parties having reached a compromise? Court decides

https://www.scconline.com/blog/post/2021/04/05/criminal-proceeding/


Madras High Court


COVID-19

Madras HC | Survival and Protection: Only when citizen survives that he enjoys other rights that this democratic republic guarantees unto him || HC on COVID-19, Election Commission, Vote Counting

https://www.scconline.com/blog/post/2021/04/26/election-commission-2/

Madras HC | States’ failure in filing status report: HC remarks State’s indolence knows no bounds to use pandemic as excuse for acting in flagrant breach of Court orders

https://www.scconline.com/blog/post/2021/04/30/covid-19-pandemic/

Compensation

Madras HC | 4 Fishermen killed by Sri Lankan Navy. State & Centre to provide adequate compensation in wake of untimely deaths of fishermen

https://www.scconline.com/blog/post/2021/03/31/fishermen-killed/

Divorce

Madras HC | PCOS v. Impotency? Divorce on ground of no cohabitation. Is it a legitimate expectation of husband? HC explains while discussing concept of marriage and S. 12(1)(a), HMA

https://www.scconline.com/blog/post/2021/04/05/divorce-3/

Partition

Madras HC | Daughters filed partition suit while disowning their registered release deed. As per S. 92 of Evidence Act, burden to adduce evidence sufficient to exclude written evidence will be on the daughters? Read on

https://www.scconline.com/blog/post/2021/04/02/partition-suit/


Orissa High Court


Bail

Ori HC | Bail rejected subject to the plight of the victim and the probability of the accused tarnishing the dignity of the victim and her family

https://www.scconline.com/blog/post/2021/04/02/bail/

Circumstantial evidence

Ori HC | In cases where guilt is based only on circumstantial evidence; suspicion, however, grave may be, cannot be a substitute for a proof

https://www.scconline.com/blog/post/2021/04/19/circumstantial-evidence-2/

Compensation

[MV Act] Ori HC | Does compassionate appointment given to the widow allow deductions in compensation granted? HC decides

https://www.scconline.com/blog/post/2021/04/09/compassionate-appointment-3/

Economic offences

Ori HC | An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community; Bail rejected

https://www.scconline.com/blog/post/2021/04/27/economic-offence/

Sales tax

Ori HC | Once the material is offered for inspection, the delivery shall be “deemed to have been completed” on that very date, Freight charges were rightly raised separately

https://www.scconline.com/blog/post/2021/04/03/sales-tax/


Patna High Court


COVID-19

Pat HC | Explore possibility of procuring High Flow Nasal Canula; Speed-up RT PCR testing: HC directs State

https://www.scconline.com/blog/post/2021/04/19/rt-pcr-testing/

Judiciary

Pat HC | Bias and prejudices, conjectures and surmises and personal views contrary to material on record have no place in court of law: HC says Trial Judge needs special training at Judicial Academy. Read why

https://www.scconline.com/blog/post/2021/04/15/trial-judge-needs-special-training-at-judicial-academy/


Punjab and Haryana High Court


Custody

P&H HC | Welfare of minor is the paramount consideration to be kept in mind while appointing a guardian in regard to S. 17 of the Guardian Act r/w S. 13 of the Minority Act

https://www.scconline.com/blog/post/2021/04/06/custody-of-minor/

Fake allegations

P&H HC | It is not only an abuse to process of law but also an attempt to overawe the authorities; HC imposes cost of 1 lakh for fake rape allegation

https://www.scconline.com/blog/post/2021/04/07/rape-allegation/


Rajasthan High Court


Parole

Raj HC | Primary objective of parole is to facilitate family ties being maintained and cannot be rejected on flimsy grounds

https://www.scconline.com/blog/post/2021/04/01/parole/


Tripura High Court


Conviction

Tri HC | Conviction under S. 42 Indian Forest Act, 1927 upheld; Court dismisses petition

https://www.scconline.com/blog/post/2021/04/02/indian-forest-act/


Uttaranchal High Court


COVID-19

Utt HC | State to establish Real Time Portals for informing public about availability of beds, oxygen cylinders and flow-meters; HC lays down directions

https://www.scconline.com/blog/post/2021/04/29/covid-19-8/

Forest fires

Utt HC | Court issues guidelines issued in order to curb problems related to forest fires in the State; Vacancies in the forest department to be filled

https://www.scconline.com/blog/post/2021/04/13/forest-fires/

Legal RoundUpWeekly Rewind

7th Episode of SCC Online Weekly Rewind featuring Bhumika Indulia, Associate Editor bringing you the most important and interesting stories from the field of law is out now! Check out the written episode below.


Supreme Court 

♦ Chief Justice SA Bobde retires; Justice NV Ramana takes oath as the 48th Chief Justice of India

Faced with the unprecedented situation of COVID-19 pandemic forcing the Courts to function virtually, Justice SA Bobde retired on April 23rd after a stint of 17 months as the Chief Justice of India and a total of 8 years as a Supreme Court Judge.  

ON April 24th, Justice NV Ramana took oath as the 48th Chief Justice of India.  

Chief Justice SA Bobde retires: A look at his legacy and justice in the time of COVID-19: https://bit.ly/3ve0DsR

3 Important rulings on pendency of cases and vacancies in High Courts

Right before his retirement, CJI Bobde, aling with Justice L. Nageswara Rao and Justice S. Ravindra Bhat, gave 3 important rulings to deal with the pendency of cases and vacancies in the High Courts. 

  1. All High Courts to take expeditious steps to incorporate the Draft Rules of Criminal Practice, 2021 as part of the rules governing criminal trials. This will help in removing the common deficiencies in criminal trials thereby leading to faster disposal of cases. 
  2. Taking note of the existing 220 vacancies in the High Court, the Supreme Court has stressed upon the importance of the Chief Justices of the High Courts making recommendations in time. 
  3. General guidelines for the appointment of ad hoc Judges to deal with the unprecedented situation arising from the backlog of cases pending in the High Courts, which has now crossed the figure of 57 lakh coupled with the consistent ratio of vacancies of almost 40 per cent. In the extensive guidelines, the Court has also laid down 5 “trigger points” for activation of dormant Article 224A. 

♦ Allahabad High Court’s “lockdown” judgment stayed https://bit.ly/3aDX3QL


High Courts

♦  Bom HC | “Elderly citizens being asked to choose between devil and the deep sea”: HC not impressed with Centre’s reply on petition for door-to-door vaccination for elderly and disabled citizens

Bombay High Court while addressing a concern regarding the door-to-door vaccination for elderly and disabled citizens said that it is for the government and its appropriate department to explore ways and means to prevent contamination as well as exposure of vaccine beyond recommended temperature so that vaccination programme can be taken to doorsteps of elderly and disabled citizens. 

https://bit.ly/3erNlSR

2. Bom HC | “Serum Institute coined the term ‘Covishield’, took substantial steps towards development and manufacture”: Court finds no merit in Cutis Biotech’s passing off action

In an appeal with respect to passing of an injunction against the use of name COVISHIELD by Serum Institute of India for its COVID-19 Vaccine, Bombay High Court observed that 

A temporary injunction directing Serum Institute to discontinue the use of mark ‘Covishield’ for its vaccine will cause confusion and disruption in the Vaccine administration programme of the State

https://bit.ly/3tQ9D7c

COVID-19 Surge | Bom HC | Reports of RT-PCR Tests to be made available on Whatsapp; COVID positive patients reports to be uploaded within 24 hours on ICMR portal

While addressing the issue with regard to difficulties being faced by the patients in obtaining RT-PCR reports, Bombay High Court directed the laboratories that the said reports be made available on WhatsApp and to be uploaded on ICMR portal within 24 hours for the patients testing positive, whereas for the patients who test negative to be uploaded on the portal within 7 days. 

https://bit.ly/3nqjGgP

Del HC | “Wastage of a single dose of vaccine is a criminal waste”

While addressing the concerns arising out of the COVID-19 pandemic, High Court noted that 44 lakhs vaccines were wasted out of the 10 crores vaccines allocated to different State due to the restriction of age or category of people who were entitled to take the vaccine and hence remarked that: 

Wastage of even a single dose of vaccine, when the same is proving to be life–saving, would be a criminal waste. 

https://bit.ly/2Qy6V7M

 

Ori HC | Suo Moto matter taken regarding death of sanitation workers in two incidents; Directions laid down regarding abolition of manual scavenging

Division Bench of Orissa High Court directed compensation to the grieving families of the sanitation workers who were engaged in manually cleaning a sewer line and died of asphyxiation, made noteworthy observations regarding the sorry plight of manual scavengers 

https://bit.ly/3tRnquj

 

 


Legislation Updates

Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2021

https://bit.ly/32NQOWe

 

 

​♦ Union Health Ministry issues Regulatory Pathways for foreign produced COVID-19 Vaccines

https://bit.ly/3tPqbMD

Case BriefsSupreme Court

Supreme Court: In an appeal against the Himachal Pradesh High Court judgment which dismissed a petition after noticing that the appellant has an alternate remedy available, the bench of Dr. DY Chandrachud and MR Shah, JJ has summarised the principles related to the maintainability of a writ petition before High Courts.

Two important judgments on the “rule of alternate remedy”

Whirlpool Corporation v Registrar of Trademarks, Mumbai, (1998) 8 SCC 1

“Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

Read full judgment

Harbanslal Sahnia v Indian Oil Corpn. Ltd, (2003) 2 SCC 107

“In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

Read full judgment

Principles summarised by the Court

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where

(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

(b) there has been a violation of the principles of natural justice;

(c) the order or proceedings are wholly without jurisdiction; or

(d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

Background

In the present case, the High Court had dismissed the writ petition instituted under Article 226 of the Constitution challenging orders of provisional attachment on the ground that an alternate remedy is available. The appellant challenged the orders issued on 28 October 2020 by the Joint Commissioner of State Taxes and Excise, Parwanoo provisionally attaching the appellant’s receivables from its customers. The provisional attachment was ordered while invoking Section 83 of the Himachal Pradesh Goods and Service Tax Act, 20172 and Rule 159 of Himachal Pradesh Goods and Service Tax Rules, 20173 . While dismissing the writ petition challenging orders of provisional attachment the High Court noted that although it can entertain a petition under Article 226 of the Constitution, it must not do so when the aggrieved person has an effective alternate remedy available in law.

[Radha Krishna Industries v. State of Himachal Pradesh, 2021 SCC OnLine SC 334, decided on 20.04.2021]


*Judgment by Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

For appellant: Senior Advocate Puneet Bali, learned senior counsel appearing on behalf of the appellant

For State of Himachal Pradesh: Advocate Akshay Amritanshu

NewsWeekly Rewind

The 4th Episode of our SCC OnLine Weekly Rewind was released on 4-04-2021. If you haven’t yet checked out the latest updates of that week, featuring Bhumika Indulia, Associate Editor, just click on the link below.

Supreme Court

♦ Mukhtar Ansari’s custody transferred to Uttar Pradesh: https://bit.ly/2PnnbIv

♦ Supreme Court refused to interfere with the scheme of sale of electoral bonds by the Political Parties which was challenged on the ground that it allows the donors of political parties to maintain anonymity which is not healthy for a democracy: https://bit.ly/3mhJQ4S

♦ Rapid Rail Case: HSVP to deposit 80% of debt due in Escrow Account: https://bit.ly/3wIparl


High Courts

♦ Madras HC | Quality of education being compromised in course of more law colleges being born in guise of creating opportunities : https://bit.ly/3sRahAI

♦ Madras HC | “Trying to develop the case brick by brick and construct something purposeful”: HC while arranging counselling for same-sex couple and parents: https://bit.ly/31Wpwgd

♦ Ker HC | ‘Ensure ‘no double voting by any voter’; HC directs Election Commission of India to be on war footing to ensure fair and democratic election: https://bit.ly/3rOcH1E

Tribunal

♦ CCI | No ‘opt-out’ option for WhatsApp users in the 2021 Update. Why? Data Sharing with Facebook, Unilateral terms and more. Read CCI’s take on WhatsApp’s conduct in the garb of the policy update: https://bit.ly/39DeG2N


Legislation Updates

♦ Extension of Last Date for Linking Aadhaar number with PAN from March 31, 2021 to June 30, 2021 : https://bit.ly/31GsfKf

♦ Finance Act, 2021 : https://bit.ly/3sSjcC4

Copyright (Amendment) Rules, 2021: https://bit.ly/2Px5oOP

♦ Insurance (Amendment) Act, 2021: https://bit.ly/2R4tiSo


Did you check out the 3rd Episode yet? If not, here’s the link:

SCC Online Weekly Rewind Volume 1 Episode 3

 

Case BriefsSupreme Court

Supreme Court:  The 3-judge bench of Ashok Bhushan, SA Nazeer and Hemant Gupta*, JJ has reiterated that the nomenclature under which the petition is filed is not quite relevant and it does not debar the Court from exercising its jurisdiction which otherwise it possesses.

The Court hearing a where a petition was filed against an order of the Wakf Tribunal before the High Court but was styled as a Writ Petition under Article 226 of the Constitution. The Court explained that when a petition is filed against an order of the Wakf Tribunal before the High Court, the High Court exercises the jurisdiction under Article 227 of the Constitution of India. Therefore, it is wholly immaterial that the petition was titled as a writ petition. In fact, in certain High Courts, petition under Article 227 is titled as writ petition, in certain other High Courts as revision petition and in certain others as a miscellaneous petition.

Further, the proviso to sub-section (9) of Section 83 of the Wakf Act, 1995 confers power on the High Court to call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination.

“The statutory provision is acceptance of the principle that the jurisdiction of the High Court under Article 226 or 227 of the Constitution of India cannot be curtailed.”

Relying on the decision in Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749, the Court said that if the Court finds that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition as one under Article 227 or Section 482 of the Code.

“Therefore, the petition styled as one under Article 226 would not bar the High Court to exercise jurisdiction under the Act and/or under Article 227 of the Constitution. The jurisdiction of the High Court to examine the correctness, legality and propriety of determination of any dispute by the Tribunal is reserved with the High Court. The nomenclature of the proceedings as a petition under Article 226 or a petition under Article 227 is wholly inconsequential and immaterial.”

[Kiran Devi v. Bihar State Sunni Wakf Board, 2021 SCC OnLine SC 280, decided on 05.04.2021]


*Judgment by Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of S.Manikumar, CJ., and Shaji P. Chaly, J., heard the instant PIL whereby, MLA Ramesh Chennithal had approached the Court for seeking issuance of directions to the Election Commission of India (ECI) to ensure that fake/multiple entry voters in the electoral roll for the election to the Kerala Legislative Assembly were not permitted to vote. The Bench directed,

“Election Commission should also ensure that sufficient State/Central force is posted at all voting places, to ensure fair and democratic election.”

 The petitioner contended that there were multiple entries of the voters in various places, which according to the petitioner was about 3,24,441 double votes and 1,09,601 bogus votes in the final electoral roll published on 20-01-2021, spreading over 131 Assembly Constituencies, and in total 4,34,042 double/fake votes in the final electoral rolls. The petitioner further submitted that though complaints were made to the Election Commission to correct the electoral roll, no steps had been taken and the voting is scheduled on 06-04-2021.

Assessing the seriousness of the matter, the petitioner had sought for a mandamus, directing the respondents to take immediate actions, and rectify the electoral roll by deleting or freezing fake/multiple votes and also to ensure that those fake/multiple entry voters were not permitted to vote in the election in any polling booths.

To substantiate his allegations, the petitioner submitted a computerized printout of the voters of 134 Thiruvananthapuram Central Constituency and CDs. On perusal of the same, the Bench observed that while the photographs of the voters being the same, names, booth numbers and serial numbers were different.

The Bench asked the Election Commission of India, whether it had any mechanism to find out the chances of multiple entry, in case of absence/shifting or for any other reason. The Bench stated,

“We are of the prima facie view that there are discrepancies in the final voters list published by the Election Commission.”

 Agreeing with the argument of the petitioner that the presence of multiple entries in the voters list would facilitate a voter to cast twice, which is not permissible in law, the Bench directed the ECI to ensure that there was no double voting by any voter. ECI was further directed to ensure that sufficient State/Central force is posted at all voting places, to ensure fair and democratic election. Lastly, the Bench stated,

To implement the above, steps should be taken on war footing basis. Orders of this Court should be implemented in letter and spirit, without any room for compliant.”

[Ramesh Chennithala v. Election Commission of India, 2021 SCC OnLine Ker 1613, decided on 29-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court:

For the Petitioner: Adv. T. Asaf Ali,

For the Respondents: Adv. Deepu Lal Mohan

High Court Round UpHigh CourtsLegal RoundUp

Here’s a short recap of what we covered under the High Court’s section for the month of March 2021.


Allahabad High Court

Rule Making Power under the Motor Vehicles Act

All HC | Rule making power of Central and State Government under Motor Vehicles Act – Are the subject matters falling under Ss. 110 and 111 delineated and demarcated or do they overlap? HC explains

https://bit.ly/3m5cMwI

Maintenance

All HC | Rent Allowance vis-a-vis Maintenance Allowance: Whether under S. 125 CrPC, rent allowance is included under maintenance allowance? Read to know

https://bit.ly/3fpMKTL

Maintainability of Habeas Corpus Writ

All HC | Full Bench decides whether writ of Habeas Corpus will be maintainable against Judicial order or Child Welfare Committee’s order under J.J. Act? Decoded

https://bit.ly/31xr9QW

Marriage of a Minor| Void or Voidable?

All HC | If a minor girl marries a major of her freewill, will such marriage be void or voidable? Court explains while discussing validity of child marriage

https://bit.ly/3m3tfSg

Contract

All HC | During his lifetime, tenant enters into compromise with landlord and enjoys benefits thereof. After such tenant’s demise, can his legal heirs challenge the compromise? HC uncovers legal position

https://bit.ly/3dlLBtF

Land Title Dispute

All HC | Order reserved in Kashi Vishwanath Temple-Gyanvapi Masjid Land Title Dispute; Court to decide maintainability [Religious Character]

https://bit.ly/3rCXbWu


Bombay High Court

Maintenance to Widowed Daughter-in-Law

Bom HC | Father-in-law denies maintenance to widowed daughter-in-law and her children. Will he be obligated to maintain them if late son had a share in ancestral property? HC Decodes

https://bit.ly/39w2RLF

Fraud by Wife?

Bom HC | Husband alleged that wife hid her actual date of birth & since he intended to marry a ‘Mangalik Yog’ girl, fraud was played upon him. Here’s how HC solved the matter

https://bit.ly/31BByv0

Section 417 of Penal Code, 1860

Bom HC | Whether absence of ‘dishonest concealment of fact’ exempt a person from being punished under S. 417 IPC? Read on

https://bit.ly/3weIFHV

Legal Heirs | Property

Bom HC | Relinquishment of self-acquired properties of a deceased by legal heirs. Will such release enure to benefit of all other legal heirs? Court explains

https://bit.ly/3ftQQdG

Defamation

Bom HC | Can a person’s image be used for a commercial purpose, without his/her express written consent? Justice G.S. Patel elaborates directing Amazon Prime to take down the telecast of a movie using a person’s private image

https://bit.ly/3u9WTYU

Suicide

Bom HC | Woman commits suicide along with her infant daughter within 7 years of marriage. Can husband of deceased be held guilty for offences under Ss. 498-A, 304-B read with 34 IPC? Mere suspicion of Cruelty & Harassment is enough?

https://bit.ly/3m5Qknj

Agreement

Bom HC | Can a development agreement signed between Chairman of Society and one of the Managing Committee members be binding upon non-signatory? Court discusses while ordering redevelopment of building

https://bit.ly/3sH9HFJ

Copyright Registration

Bom HC | Does Copyright Act requires mandatory registration to seek protection under the Act? Justice G.S. Patel explains

https://bit.ly/3ue4FRz

Daughter approaches Family Court on behalf of father’s Marriage

Bom HC | Can a daughter approach Family Court on behalf of her father to challenge validity of his marriage? OR only parties to marriage can challenge validity? Read in light of S. 7 of Family Courts Act

https://wp.me/pcenps-11Vt

Others

Bom HC | Board of Directors of Co-operative Bank: Power of Registrar of Co-operative Societies under Maharashtra Co-operative Societies Act & RBI’s role || Detailed Report

https://bit.ly/2PN0htB


Calcutta High Court

Registered Society

Cal HC | Can a registered society file a writ petition on behalf of a group of people including those who are not members of the society? HC discusses while upholding shifting of market site in view of COVID-19

https://bit.ly/3sFJTtz

Marriage Conversion

Cal HC | Judiciary – The policy-making instrument on issues relating to marriage conversion and acceptability in terms of personal laws? Read on

https://bit.ly/3m6vqEw


Chhattisgarh High Court

Opportunity of Hearing

Chh HC | Does forfeiture of earned remission of a convict without giving reasonable opportunity of hearing would amount to violation of fundamental right under Art. 21 Constitution of India? HC observes

https://bit.ly/3sDdy6T

Benami Transaction

Chh HC | Principles governing determination whether a transfer is a Benami transaction has been reiterated; Petition allowed

https://bit.ly/3fuYFzM

Cooling Period

Chh HC | Guidelines regarding the waiver of cooling period as provided under S. 13B (2) of Hindu Marriage Act reiterated; Petition allowed

https://bit.ly/3dlQCm3

Contract

Chh HC | When terms of a contract have been reduced to the form of a document, no evidence shall be given or permitted to be adduced in proof of terms of such contract under Ss. 91 & 92 of Indian Evidence Act, 1872

https://bit.ly/3dlOtGX


Delhi High Court

Delhi High Court

Revisional Court Decision v. Lower Court Decision

Del HC | Can the revisional court’s conclusion substitute the lower court’s decision? Read HC’s analysis

https://bit.ly/31AUw4U

Defamation

Del HC | Complaint against Business Standard for defaming ‘member of RSS’ quashed: Who qualifies as an aggrieved person to file defamation complaint? HC explains

https://bit.ly/3fx3lVE

Payment of Rent

Delhi HC issues notice in a plea raising important issues concerning payment of rent by Cinema Halls during lockdown, doctrine of incorporation of arbitration clause, recourse in absence of force majeure clause

https://bit.ly/2PcCROF

Jurisdiction

Del HC | What is the scope of Court’s jurisdiction while examining application under S. 8, Arbitration and Conciliation Act. What is effect of ‘Chalk & Cheese’ case of non-arbitrability? HC examines in “Hero” electric bikes dispute

https://bit.ly/3fuRRBV

Virtual Hearing

Del HC | NCLT and NCLAT directed to regulate their own procedure for virtual hearing platforms so long as it is ensured that if any particular party requests for a link, same would be considered in a fair, transparent and non-arbitrary manner

https://bit.ly/3m7Ph6m

Sensitization of Citizenry

Del HC | Sensitization of citizenry has to precede, not succeed, galvanization of governmental machinery: Directions issued to Airlines and DGCA on noting an ‘alarming’ situation in Air India flight

https://bit.ly/3rF3Cbz

Vicarious Liability

Del HC | Vicarious liability under S. 138 NI Act. What is proper stage of raising defence of absence of knowledge  by the accused being held vicariously liable for offence committed by company? Explained

https://bit.ly/3ucGHG3

Arbitrator

Del HC | Whether disability of an appointing authority to appoint an arbitrator frustrate the arbitration agreement. HC unravels in light of Arbitration and Conciliation (Amendment) Act, 2015

https://bit.ly/2PKAna8

Unsoundness of Mind

Del HC | How to prove unsoundness of mind in absence of medical records? When does presumption of being under influence arise? On whom lies burden of proof? Court answers while rejecting challenge to a Will

https://bit.ly/3sHokZQ

Culpable Homicide

Del HC | What is the most crucial element to be determined while finding a person guilty under attempted culpable homicide – S. 308 IPC? Vegetable seller beaten up on failing to provide money for conducting business outside Okhla Sabzi Mandi

https://bit.ly/2PK242A

Emergency Arbitrator

[Amazon v. Future Retail] From Emergency Arbitrator to Group of Companies Doctrine – Delhi HC covers all while restraining Future Group from proceeding further with Disputed transaction

https://bit.ly/3sCdMes

Eviction Order

Del HC | Which is the proper forum for filing appeals from the eviction order passed by DM under Delhi Maintenance and Welfare of Parents and Senior Citizens Act? Court answers

https://bit.ly/3cEwYmh

Interim Maintenance

Del HC | It is for the wife to establish alleged source of husband’s income; Husband would have paid maintenance rather than going jail: HC reduces interim maintenance to wife and son

https://bit.ly/3frG0or


Gauhati High Court

Gau HC | [Artificial Ripening of Fruits] HC considers health hazards; lays down detailed guidelines to ensure chemical-free ripening of fruits

https://bit.ly/39x1pbQ

Culpable Homicide

Gau HC | “Nature of injury does not suggest that the appellant acted in cruelty”; HC converts conviction for murder into culpable homicide

https://bit.ly/3fuDP3A

Motor Accident Case

Gau HC | Deceased being below 40 years of age the future prospects shall be held at 40%; HC allows appeal against enhanced compensation in motor accident case

https://bit.ly/3rAFl6A


Gujarat High Court

Policy Decision

Guj HC | Court cannot undertake the activity of banking regulations upon itself and pass omnibus orders to come up with policy decision; Court dismisses appeal

https://bit.ly/2PGMcy6

Termination of Pregnancy

Guj HC | Termination of pregnancy application rejected keeping in mind health of the minor; Court issues directions

https://bit.ly/3m5kAPf


Himachal Pradesh High Court

Maternity Leave

HP HC | Whether a contractual woman employee is entitled to avail maternity leave in case of a surrogate child? HC analyses

https://bit.ly/3rA2vd7

Judicial Bias

HP HC | Merely because persons are related do not establish that the relationships were working or cordial; Crucial aspect is time period of knowledge

https://bit.ly/2PJQLHE

Eminent Domain

HP HC | Can a writ in the instant nature be allowed to direct Temple authorities to spend the amount collected through donations for construction of parking sites

https://bit.ly/3rDg5MP

Education Department

HP HC │ Lamentable state of affairs; Education Department is one of the biggest litigants before this Court and majority of writ petitions relate to transfer and adjustment of the teachers

https://bit.ly/31wtmML


Jammu and Kashmir High Court

Eviction of Unauthorised Occupants

J&K HC | “Government bungalows are Public property, it belongs to Public” HC directs State to ensure eviction of unauthorised occupants from Government accommodation

https://bit.ly/3m5lo6w

Magistrate’s Jurisdiction

J&K HC | When a CJM transfers a petition to a Magistrate subordinate to him, the Magistrate is conferred with jurisdiction to entertain the same even if the matter would otherwise fall outside his jurisdiction

https://bit.ly/3rLGloB


Jharkhand High Court

Arbitral Award

Jhar HC | [Galudih Barrage Irrigation Project] HC upholds arbitral award after certain modifications; explains principles of adjustment, counterclaim and set off

https://bit.ly/3rE9stC

Victim Compensation

Jhar HC | “Accused cannot be saddled with payment of victim compensation”; HC says such order is contradictory to S. 357A of CrPC

https://bit.ly/2Pen9mc

Jharkhand Staff Selection Commission

Jhar HC | Will a person claiming to be 41 years 11 months and 30 days of age be qualified for a post which prescribes upper age limit of 42 years? HC explains

https://bit.ly/3cAee79


Karnataka High Court

Contract

Kar HC | Whether the termination/cancellation of contract of the petitioner on the ground of the petitioner seeking maternity leave is justified? HC analyses

https://bit.ly/3fo4yi6

LIC Pension Rules

Kar HC | Benefit under Rule 27 LIC Pension Rules was rejected to a LIC Agent working as a field officer as no special qualification was required; Appeal dismissed

https://bit.ly/3ua0ru5

Immovable Property Registration

Kar HC | Immovable property which is compulsorily registrable under S. 49 of Indian Registration Act, 1908 may be taken as evidence for the purpose of collateral transaction

https://bit.ly/3cDxReJ

Abuse of Office

Kar HC | Assistant Commissioner and Tahsildar made a consorted effort to abuse their office to take possession of the properties, demolish them and dispossess the rightful owners

https://bit.ly/3fxT0ZB

Trademark Dispute

Kar HC | A case of deceptively similar trademarks; Quintessential ‘Common man’ is neither blessed with the wisdom of Solomon nor the trained eyes of Sherlock Holmes

https://bit.ly/3ftZrNu


Kerala High Court

Maintenance

Ker HC | If a neglected wife is being maintained by her eldest son, would that exempt the husband from his liability to maintain the wife under S. 125 CrPC? HC explains

https://bit.ly/2PjOLpK

Right to Protest

Ker HC | “Striking workers cannot resort to strong-arm tactics and violence”; HC explains the ambit of Right to Protest

https://bit.ly/3sEGhrU

Statutory Proceedings

Ker HC | Inappropriate for Court to interfere with statutory proceedings at show-cause stage; HC dismisses petition against SEBI

https://bit.ly/3dqoTAR

Dishonour of Cheque

Ker HC | Dishonour of cheque shall be proved to the hilt; Adverse inference cannot be drawn under S. 138 of NI Act merely because evidence is not adduced to prove a negative fact

https://bit.ly/31BLGE2

Divorce

Ker HC | In divorce petition under S. 13(1)(iii) of HMA, can Court order a party to appear before medical board for assessment of mental condition? Court discusses

https://bit.ly/3dkDHRd

OTT Rules

Ker HC | Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 challenged; HC restrains State from taking any coercive action for non-compliance of Part III of the impugned Rules

https://bit.ly/3m5f6UJ

Manual Scavenging

Ker HC | HC directs State to pay Rs 10 lakh compensation to the family of a deceased manhole worker

https://bit.ly/3rBi04z


Madras High Court

Forgery

Madras HC | Does buyer’s knowledge about dispute in title of subject property, will make him liable for offence of cheating, forgery and making false document? HC answers

https://bit.ly/3wdFKPQ

Ancestral Property

Madras HC | Under Hindu Succession Act, can an ‘ancestral property’ blend in with the ‘individual property’? Read to know

https://bit.ly/3ryfHPT

Sexual Harassment

Madras HC | Media and Political Parties restrained from indulging in any discussions on alleged sexual harassment of Lady IPS Officer – NO parallel ‘Media Trial’ || Restraint to continue

https://bit.ly/3fu9BNO

Madras HC | Why Special DGP who has been alleged to have sexually harassed the Lady IPS Officer been placed under ‘Compulsory Wait’ instead of being suspended? Does compulsory wait attach any stigma to it?

https://bit.ly/3fv8hdQ

Madras HC | Lady IPS Officer harassed by Special DGP. “Court is not going to be a mute spectator”: HC takes suo motu cognizance; decides to monitor investigation; issues directions

https://bit.ly/3cyCPt7

Right to use Postal Ballot

Madras HC | Political Party DMK challenged Constitutional Validity of S. 60(c) of Representation of the People Act 1951. Why HC held that EC provided right to use postal ballot to certain persons who otherwise would have been excluded? Know more

https://bit.ly/31yTRkx

Same-Sex Couple

Madras HC | Society still grappling to come to terms with same sex orientation: HC orders protection and in-chamber hearing

https://bit.ly/3diM0Nz

Madras HC | “Trying to develop the case brick by brick and construct something purposeful”: HC while arranging counselling for same-sex couple and parents

https://bit.ly/2PKahnq

COVID-19

Madras HC | Wear masks; maintain social distancing norms at all political gatherings: HC to candidates and political parties in election-bound State of Tamil Nadu

https://bit.ly/3wdGpAO

Law Colleges

Madras HC | Quality of education being compromised in course of more law colleges being born in guise of creating opportunities. Read what HC says

https://bit.ly/3uefCTb

Elections

Madras HC | Official Funds for Campaigning: One has to wear allegiance to a political leader, if not on the sleeve at least visibly crying out of pocket | Why? Read on

https://bit.ly/2QXbaKh


Madhya Pradesh High Court

Litigation

MP HC | Litigation in the Court is not a “game of chess”; Court dismisses appeal stating serious suppression of facts

https://bit.ly/2PKt42d

Preventive Detention

MP HC | Law of preventive detention is an exception to fundamental right to personal liberty under Art. 21 of Constitution and therefore has to be strictly construed; Court allows petition challenging preventive detention

https://bit.ly/3dm1foX


Meghalaya High Court

Injunction

Megh HC | Grant of injunction cannot be claimed by a party as a matter of right nor can it be denied by the Court arbitrarily; Court dismisses petition on the question of effective possession

https://bit.ly/31z16sO

 

 


Orissa High Court

Judicial Review

Ori HC | Power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest or to decide contractual disputes

https://bit.ly/31w4vbO

Quasi-Judicial Authority

Ori HC | A quasi-judicial authority vested with the power for cancellation of a license, could not have acted under the ‘dictation’ of another authority

https://bit.ly/3rEdPow

Strict Liability

Ori HC | Onus of proof, which lies on a party alleging negligence should be established on the touchstone of preponderance of probabilities

https://bit.ly/3dprCuf


Patna High Court

Toilet for Girls

Pat HC points out apathy on the part of State regarding the non-existence of ladies toilet in Colleges; Constitutes a Committee to examine existing conditions

https://bit.ly/3m6HS7e

Unlawful Association

Pat HC | To attract penalty for being a member of an unlawful association, the association must be one declared unlawful by a notification under UAP Act, 1967; HC declares seizure exercise illegal and arbitrary

https://bit.ly/39wQMWJ


Punjab and Haryana High Court

Panchayati Divorce

P&H HC | “Panchayati divorce has no recognition in law”; HC grants protection to the couple in spite of holding their marriage illegal

https://bit.ly/2PeswBS

Partnership Firm

P&H HC | Experience gained by erstwhile partnership firm could not be construed as experience of partners in an individual capacity; HC dismisses the petition

https://bit.ly/3m7Zn7g

Marriage

P&H HC | Muslim woman and Hindu man marries as per Hindu rites; HC holds the marriage is invalid

https://bit.ly/3m6DpS4

Contractual Live-in Relationship

P&H HC | Contractual live-in relationship has no recognition in law; HC terms it “misuse of process” and against morality

https://bit.ly/3rywBxz


Rajasthan High Court

Judgment

Raj HC | Judgment can be a binding precedent only for what has been considered and held in it; No Court can travel beyond facts mentioned and considered therein to cull out “ratio decidendi”

https://bit.ly/3cCamCL

 

 


Telangana High Court

Sale Notice

Telangana HC | If the bank sends sale notice following due procedure on the addresses mentioned in loan agreement, will the same amount to ‘service’ under Security Interest (Enforcement) Rules? Read on

https://bit.ly/3m801lc

Principles of Res Judicata

Telangana HC | Are principles of res judicata applicable to bail applications? Can repeated filing of bail applications without change in circumstances be accepted? Read on

https://bit.ly/3wgBUFu


Tripura High Court

Economic Abuse and Domestic Abuse

Tri HC | How are ‘economic abuse’ and ‘domestic abuse’ synonymous? HC explains in light of S. 3 of the Protection of Women from Domestic Violence Act, 2005

https://bit.ly/3ftbfQ3

Bail Application

Tri HC | Strong prima facie case leaves no ground for custodial immunity; Court rejects bail application in matter of Ss. 377 and 506 of IPC and S. 6 of POCSO

https://bit.ly/3sQjWrz

Public Interest Litigation

Tri HC | Every State and local authority to provide adequate facilities for instruction in mother tongue at the primary stage of education to children belonging to linguistic minority groups? Court decides on PIL

https://bit.ly/3rDFsyj

Writ Petition

Tri HC | High Court would not entertain a writ petition which is hopelessly delayed without proper explanation; dismisses petition with costs


Uttaranchal High Court

RTI Act

Utt HC | Delay in providing information under RTI Act does not amount to penalty, if valid reasons for the delay are proved; Court sets aside the penalty

https://bit.ly/3m5xGfn

Enquiry

Utt HC | Before proceeding in the matter, Court has to form an opinion that an enquiry is needed; Court dismisses application moved under S. 340 CrPC

https://bit.ly/31BktBn

NewsWeekly Rewind

Welcome to the SCC Online Weekly Rewind where we curate the most important and interesting stories to keep you abreast of all the latest developments in the field of law.

In the first episode featuring our Legal Editor Devika Sharma, we have brought significant judgments delivered by the Supreme Court and High Courts last week, along with legislation updates and fact check.

 


Supreme Court

A Winner All Along – Justice Indu Malhotra

https://bit.ly/3tGrvks

  • Under IBC, NCLT has jurisdiction to adjudicate disputes arising solely on the ground of insolvency: Supreme Court

https://bit.ly/3vOiebX

  • SC calls for an amendment to Sections 11(7) & 37 of the Arbitration and Conciliation Act, 1996 to bring Sections 8 & 11 at par on appealability. Read how Vidya Drolia judgment has led to an anomaly

https://bit.ly/312YYtb

  • 3 years’ limitation period ‘unduly long’; Necessary for Parliament to fill the vacuum by prescribing a specific period of limitation under Section 11 of the Arbitration and Conciliation 1996: SC

https://bit.ly/3c9ALYw


High Courts

Del HC | Sensitization of citizenry has to precede, not succeed, galvanization of governmental machinery: Directions issued to Airlines and DGCA on noting an ‘alarming’ situation in Air India flight

Delhi High Court

https://bit.ly/3cZkncf

Madras HC | Lady IPS Officer harassed by Special DGP. “Court is not going to be a mute spectator”: HC takes suo motu cognizance; decides to monitor investigation; issues directions

 

 

https://bit.ly/315Fu78

 

 

HP HC | Whether a contractual woman employee is entitled to avail maternity leave in case of a surrogate child? HC analyses

 

 

https://bit.ly/2QifzH5

 

 


Legislation Updates

MORTH issues Draft notification for prohibiting Renewal of Registration of Vehicles Owned by Central and State Government after 15 Years

https://bit.ly/3c99jdd

Rights of Overseas Citizen of India Cardholder, notified

 

https://bit.ly/3sefgv5

 

 

 


Fact Check

Fact Check: Do you need to verify your social media accounts with government ID within three months?

 

 

 

https://bit.ly/3tGZoSa

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Prakash Shrivastava and Vandana Kasrekar, JJ., dismissed a petition which was filed challenging a notice whereby the premises of the petitioner had been sealed under the provisions of The Central Goods and Services Tax Act, 2017 (for short “GST Act”).

The petitioner was the manufacturer of sweet betel nut and which has all the necessary licenses and permissions for this purpose and is regularly paying the GST case of the petitioner is that the Plot No.15-A/B-1, Sector-B, Industrial Area, Sanwer

Road, Indore belonged to Shri Kishore Wadhwani and he had taken this plot on lease from Shri Kishore Wadhwani and was running the manufacturing unit on this plot. The further case of the petitioner was that apart from the above, it had no connection with Shri Kishore Wadhwani. Earlier in the year 2011 Excise Department had taken certain action against the petitioner but nothing incriminating was found. On 20-06-2020, by the impugned notice the factory premises of the petitioner had been sealed. Counsel for the petitioner, Mr Sunil Jain and Mr Kushagra Jain submitted that though the action relating to search and seizure u/S.67 of the GST Act has been taken, but the requisite procedure had not been followed. They further submitted that the petitioner apprehended that the search and seizure may not be carried out in a fair manner and the confession of the petitioner may be recorded under pressure, therefore, a direction be issued for carrying out the search in the present of an Advocate. Counsel for the respondent, Mr Prasanna Prasad submitted that the officials of the respondents had approached the factory premises of the petitioner on 20-06-2020 for the purpose of search and seizure by following the due procedure in accordance with Sec.67 of the Act, but since the premises was found locked, therefore, the option was either to break open the lock and carry out the search or to seal the premises and thereafter carry out the search of the premises in the presence of the petitioner. He also submitted that the two independent witnesses will be kept as required by law and procedure prescribed in law will be duly followed in true letter and spirit.

The Court perused the Section 67 of GST Act and held that the search is yet to take place in the present case and the counsel for respondents had duly assured this court that the aforesaid provision will be complied with therefore no direction in this regard at this stage is required. The Court relied on the judgment of Poolpandi v. Superintendent, Central Excise, (1992) 3 SCC 259 wherein during the investigation and interrogation under the provisions of Foreign Exchange Regulations Act 1973 and Customs Act, a prayer was made for assistance of the lawyer and the Supreme Court had held that,

            “11- We do not find any force in the arguments of Mr. Salve and Mr. Lalit that if a person is called away from his own house and questioned in the atmosphere of the customs office without the assistance of his lawyer or his friends his constitutional right under Article 21 is violated. The argument proceeds thus: if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answering question it amounts to mental torture. We are unable to agree. It is true that large majority of persons connected with illegal trade and evasion of taxes and

duties are in a position to afford luxuries on lavish scale of which an honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either directly or indirectly in such pursuits. But that cannot be a ground for holding that he has a constitutional right to claim similar luxuries and company of his choice. Mr. Salve was fair enough not to pursue his argument with reference to the comfort part, but continued to maintain that the appellant is entitled to the company of his choice during the questioning. The purpose of the enquiry under the Customs Act and the other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company. The relevant provisions of the Constitution in this regard have to be construed in the spirit they were made and the benefits thereunder should not be “expanded” to favour exploiters engaged in tax evasion at the cost of public exchequer. Applying the ‘just, fair and reasonable test’ we hold that there is no merit in the stand of appellant before us.”

The Court dismissed the petition holding that there was no need for interference.[Subhash Joshi v. Director General of GST Intelligence, WP No.9184 of 2020, decided on 03-07-2020]


Suchita Shukla, Editorial Assistant has reported this brief.