Appointments & TransfersNews

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


Ministry of Law and Justice

[Notification dt. 23-5-2022]

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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


Advocates before the Court:

Ms. Aneeta Vasani for the Applicant.

Ms. Rutuja Ambekar, APP for the State.

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

Legal RoundUpWeekly Rewind

 


Top Story


 Thane Court

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

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

Bench expressed that,

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

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


Supreme Court | Updates


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

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

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

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

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

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

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

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

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


High Court | Updates


Bombay High Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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


 Punjab & Haryana High Court

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

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

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

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


Rajasthan High Court

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

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

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

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


Legislation Updates 


Income-tax (8th Amendment) Rules, 2022 

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

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

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

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

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

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

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

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

National Insurance Company Limited (Merger) Amendment Scheme, 2022 

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

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

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

Case BriefsSupreme Court

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

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

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

Power of High Court under S. 482 of CrPC

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

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

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

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

Forum Shopping

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

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

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

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

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

Findings

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

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

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

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


*Judgment by: Justice Krishna Murari


Appearance by:

For the Appellants: Menaka Guruswamy, Senior Advocate

For the Respondents: Anjana Prakash, Senior Advocate


Kamini Sharma, Editorial Assistant has put this report together

Case BriefsHigh Courts

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

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

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

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

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

Analysis, Law and Decision

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

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

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

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


Advocates before the Court:

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

Case BriefsHigh Courts

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

Why was the present application filed?

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

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

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

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

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

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

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

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


Advocates before the Court:

For the Petitioner:

Petitioner-in-person

For the Respondent:

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

Appointments & TransfersNews

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


Ministry of Law and Justice

[Notification dt. 24-3-2022]

Appointments & TransfersNews

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


Ministry of Law and Justice

[Notification dt. 24-3-2022]

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

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

[Rajesh Kumar Gandhi v. Mukesh Dutt]


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


Delhi High Court


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

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

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

Read full report here…

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

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

Rae full report here…

Court under maintenance proceedings under S. 125 of CrPC, can usurp jurisdiction of Civil Courts? Del HC decides

Chandra Dhari Singh, J., decided a maintenance case wherein the marital status of the parties was the crux of the matter and expressed that,

“…there is no straight jacket formula for judging the validity of the marriage between the parties.”

Read full report here…


Kerala High Court


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

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

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

Read full report here…


Andhra Pradesh High Court


LGBTQ+ community’s right to reservation; Can a transgender claim to be appointed by reservation in spite of failure to secure minimum cut off marks in screening test? AP HC answers 

In a significant case wherein, a transgender had approached the Court seeking benefit of reservation for appointment in police department, M. Satyanarayana Murthy, J., denied to issue direction to the State in favour of the petitioner. The Bench, however, remarked,

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

Read full report here…


National Company Law Tribunal


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

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

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

Read full report here…


Tis Hazari Court


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

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

Read full report here…


Information Commissioner’ Office


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

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

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

Read full report here…

Case BriefsHigh Courts

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

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

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

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

Analysis, Discussion and Decision

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

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

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

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

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

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

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

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

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


Advocates before the Court:

For the respondent: Syed Sajad Geelani, Advocate

Case BriefsHigh Courts

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

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

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

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

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

 The Court observed that the object of compulsory retirement is to weed out the dishonest, the corrupt and the deadwood. It is true that if an honest Judicial Officer is compulsorily retired it might lower the morale of his colleagues and other members in the service.

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

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

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


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Choudhary, J., held that right to claim maintenance must date back to the date of filing the application since the period during which the maintenance proceedings remained pending is not within the control of the applicant.

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

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

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

In the above mentioned case, the Supreme Court had issued direction to bring about uniformity and consistency in the orders passed by all courts by directing that maintenance be awarded from the date on which the application was made before court concerned, and the right to claim maintenance must date back to the date of filing the application since the period during which the maintenance proceedings remained pending is not within the control of the applicant.

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

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


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Arjun N. Deo, Advocate

For the Respondent: Vikas Kumar, Advocate

Case BriefsSupreme Court

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

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

Background

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

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

Observations and Analysis

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

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

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

Reason is the soul of the law

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

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

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

Conclusion

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


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Appellant: Smarhar Singh, Advocate

For the Respondent: R. Basant, Senior Counsel

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


*Judgment by: Justice B.V. Nagarathna

Legal RoundUpWeekly Rewind


STORY OF THE WEEK 


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

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

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

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

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

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

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


SUPREME COURT


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

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

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

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

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

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

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

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


HIGH COURTS


KERALA HIGH COURT

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

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

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

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

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

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

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

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

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

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

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

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

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

In a very important decision Kerala High Court held that, 

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

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


DELHI HIGH COURT

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

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

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

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

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

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

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

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

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

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

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

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

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


LEGISLATION UPDATES 


Bihar Biological Diversity (Amendment) Rules, 2021 

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

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

Maharashtra Government revises Excise Duty for wine manufacturers 

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

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

Read here:Maharashtra Government revises Excise Duty for wine manufacturers

Dam Safety Act, 2021 

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

Read details report about the Act on SCC Blog 

Read here: Dam Safety Act, 2021 


 

Case BriefsSupreme Court

Supreme Court: The Division Bench of M. R. Shah* and B.V. Nagarathna, JJ., held that where the Arbitrator appointed by the High Court had already declared the award, it is not open for parties to file a reference before M.P. Arbitration Tribunal with respect to the very claim/claims which were subject matter of arbitration. Noticing that the award had attained finality, the Bench while rejecting the respondent’s claim of award being void, stated that,

“Even the award or a nullity order has to be challenged before the appropriate forum/higher forum.”

Factual Matrix

An agreement was executed between the appellants and the respondent for construction of houses, with regard to which some disputes arose between the parties. The appellants contended that the respondent was supposed to complete the work within 18 months but,  despite granting repeated extensions, the contractor failed to complete the work, on account of which, appellants rescinded the contract.

Aggrieved by the order rescinding the contract, the respondent-contractor filed a writ petition before the High Court seeking direction to permit him to complete the work; which was disposed of on a joint consensus of the parties that the dispute shall be decided by the arbitrator i.e., Housing Commissioner, M.P. Housing Board.

Forum Shopping

The Arbitrator rejected the claim of the respondent-contractor and granted relief in favour of the appellants. Instead of challenging the said award by way of an application under Section 34 of the Arbitration and Conciliation Act, 1996, the respondent filed a fresh Reference Petition before the M.P. Arbitration Tribunal under Section 7 of the M.P. Madhyastham Adhikaran, Vindhyachal, Bhopal, Act, 1983.

The Tribunal dismissed the reference as not maintainable since claim made by the respondent had already been decided by the Arbitrator and the award had achieved finality. Later on, as an afterthought, the respondent-contractor filed a review petition before the High Court seeking clarification of the earlier order to the extent that by directing the adjudication of the dispute by the Housing Commissioner, it did not take away the jurisdiction of Arbitral Tribunal, which was dismissed by the Court.

Once again, the contractor approached the High Court with revision petition under Section 19 of the 1983 Act challenging the order passed by the learned Tribunal, by the impugned judgment the High Court allowed the said revision and quashed the order passed by the Tribunal while directing it to decide the reference/claim on merits and in accordance with law.

Findings

The Bench rejected the argument of the respondent–contractor that the earlier order passed by the High Court referring the dispute between the parties for adjudication to the Arbitrator and thereafter the award declared by the Arbitrator were non-est and void as Section 7B of the 1983 Act provides that no dispute can be referred to the Arbitration Tribunal unless the dispute is first referred for decision of the final authority under the scope of the term ‘works contract, on the basis of following findings:

(i) It was the respondent–contractor who approached the High Court submitting that he has invoked the arbitration clause;

(ii) The order of the High Court referring the dispute to the Arbitrator was a consent order; hence the claim was binding on the parties on the ground of ‘issue estoppel’.

(iii) The award of the Arbitrator had attained finality;

(iv) The review petition filed by the respondent-contractor for clarification of the earlier High Court order was rejected and the same also attained finality;

(v) The claims submitted before the Arbitrator; before the High Court and the claim submitted in Reference Petition before the Arbitral Tribunal under the 1983 Act were the same without any change;

(vi) In the subsequent reference petition before the Arbitral Tribunal there was no reference to the earlier order passed by the High Court referring the dispute to Arbitrator and the award passed by the Arbitrator. Thus, there was suppression of facts on the part of the respondent–contractor;

Decision

Holding that the award of the Arbitrator had attained finality and was binding on the parties, the Bench stated that there could not be any subsequent fresh proceeding with respect to the same claims. As no objections were raised by the respondent–contractor at the appropriate stage, the award could not be annulled subsequently.

Hence, the appeal was allowed. The impugned judgment and order of the High Court quashing and setting aside the order passed by the Arbitral Tribunal was quashed and set aside and the order of the Tribunal was restored.

[M.P. Housing and Infrastructure Development Board v. K.P. Dwivedi, 2021 SCC OnLine SC 1171, decided on 03-12-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Appellants: Bharat Singh, AAG

For Respondent: Kavin Gulati, Senior Advocate


*Judgment by: Justice M. R. Shah

Case BriefsSupreme Court

Supreme Court:  Reminding the Courts of the importance of hierarchy of Courts, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that the Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.

“Every case has its own journey towards the truth and it is the Court’s role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance.”

Factual Background

In the present case, it was alleged that both the accused carried three weapons, waylaid the deceased at a signal in a main road at about 5 p.m. and after the initial attack, dragged him to the pavement, and thereafter inflicted multiple injuries.

PW-1, who saw the occurrence from a fair distance, was known to the deceased and the deceased, who had his intestine coming out, told him the story implicating the accused.

The Deceased was taken to a hospital run by PW-25, a doctor very well known to PW-1. This hospital which was about two kilometres from the place of occurrence, while another nursing home was in existence at about 50 meters.

PW-25 gave treatment to the deceased at about 5.05 p.m. He died of multiple injuries caused by haemorrhage at about 5.45 p.m. About 40 days thereafter, at the request of the police, PW-25 gave another certificate introducing adequate material to indicate that there was a dying declaration.

Before the trial court, the prosecution examined as many as 28 witnesses. Most of the witnesses pertaining to conspiracy, occurrence, recovery and extraordinary judicial confession turned hostile.

On behalf of the defence, a doctor was examined to show that considering the nature of the injuries suffered, the death must have been instantaneous.

The Court of Sessions without exception, threadbare considered all the materials including the witnesses who turned hostile. After due scrutiny, benefit of doubt was extended in favour of the appellants.

The Karnataka High Court, however, did not consider the entire evidence as discussed by the trial court and the judgment of the trial court was reversed and conviction was rendered sentencing the appellants for life.

Duty of appellate Courts

It is pertinent to note that Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence.

However, at times, courts do have their constraints. Sometimes different decisions are being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other.

Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. However, the Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. The Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.

“The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform.”

Hence, indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.

Ruling

The Supreme Court found it unnecessary on the part of the High Court to make strong comments on the judgment written by the trial court.

It noticed that,

  • The trial court took enormous pains in considering the evidence of all the witnesses one by one and gave exhaustive reasoning for its ultimate conclusion.
  • The dying declaration was put forth by the prosecution through the mouth of PWs 1, 2 and 25. When the evidence let in by them was found to not be trustworthy, there cannot be any dying declaration either in fact or in law.

The evidence of PW-25 had no existence of dying declaration in it. He had deposed that he did not remember whether the deceased told him that the accused attacked him and caused injuries. He later testified that he had given put forth the dying declaration due to the persistence of the police.

“It rendered a conviction on mere surmise, even though an inference can never be the basis of a conviction when the testimony of a witness is not believed on cogent reasoning.”

  • The alleged occurrence was said to have happened at about 5 p.m. on a busy road with heavy traffic and even the evidence of PW-1 and PW2 suggests that there were about 1000 persons.
  • The defence also examined a Government doctor, an expert in the field of surgery, who had clearly deposed that it would be impossible for the deceased to be conscious after suffering injuries such as intestines coming out.

The Court wondered how the various reasons given by the trial court were found unacceptable by the High Court especially when it did not consider the evidence of the other witnesses.

It was, hence, held that the High Court did not undertake the exercise as mandated under Section 378 read with Section 384 CrPC in reversing the reasoned decision rendered by the trial court. Consequently, the orders of conviction passed by the High Court was set aside.

[Mohan v. State of Karnataka, 2021 SCC OnLine SC 1233, decided on 13.12.2021]


*Judgment by: Justice MM Sundresh

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ., while addressing an alleged rape and murder case of two rag pickers, held that,

“…prosecution has utterly failed in connecting the dots and bringing home the guilt of the accused.”

Prosecution Case

The instant case was a sordid story of two poor, helpless and hapless victims who had not only been raped but one of them had been brutally murdered.

Victims were friends and rag pickers which was their only source of livelihood.

It was stated that Survivor-Y did not know the accused previously, however, deceased-X knew accused 1. On the fateful day, survivor-Y and deceased-X were both standing near a garden infront of railway station and at that time both the accused came over and said that they would arrange for some job, both survivor-Y and deceased-X decided to go along with the accused.

Accused offered liquor and took both survivor-Y and deceased-X below the tunnel of a bridge and raped them, on resistance, both the accused assaulted them with hacksaw blade and a knife.

Deceased-X and survivor-Y sustained multiple injuries on the vital parts of their body. However, survivor-Y escaped from the clutches of the accused and ran away from the spot. While running away, she fell down below the bridge and sustained a head injury. She became unconscious, however, deceased-X died on the spot due to the multiple injuries.

On the basis of information given by survivor-Y, an FIR came to be recorded, crime came to be registered under Sections 302, 376(2) read with Section 34 of the Penal Code, 1860.

Reference under Section 366 (1) of the CrPC had already been made by the Additional Sessions Judge for confirmation of the death sentence.

Analysis, Law and Decision

Whether the testimony of survivor-Y who herself is an injured witness can be fully accepted as a truthful version of the entire episode sans corroboration, which is significant in light of the fact that it has been held by catena of decisions that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law but a guidance of prudence under given circumstances.

High Court stated that normally, evidence of an injured eye witness cannot be discarded in toto, particularly when the evidence is tested in the light of broad probabilities, it can be concluded that he or she was a natural eye witness and had no reason to concoct a case against the accused.

Court added that,

Merely because, she is an injured eye witness, her evidence cannot be mechanically accepted though her testimony holds more credence.

 Bench while elaborating further, stated that,

Looking to the report of the Psychiatrist coupled with the fact that survivor-Y was under the influence of liquor at the time of the incident, it would not be safe to accept her testimony as a truthful version of the incident in respect of the alleged assault by the accused.

 It was expressed that, in a criminal trial, the burden of proving the guilt of the accused beyond all reasonable doubts always rests upon the prosecution and on its failure, it cannot fall back upon the evidence.

Well Settled Principle of Law:

Corroboration is not a sine qua non for a conviction in a rape case.

Refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury.

Additional Sessions Judge appeared to have fallen into grave error in not recording the evidence of prosecution witnesses in Marathi which is the language of the District Courts in the State of Maharashtra.

In Court’s opinion, due to such a lapse on the part of the Additional Sessions Judge, a failure of justice has been occasioned and the proceedings stand vitiated.

High Court while taking into consideration the totality of circumstances in the case at hand as well as failure on the part of the trial Court in not promptly furnishing translated copies of English deposition to juvenile-in-conflict-with-law may vitiate the trial and it cannot be said to be a fair and impartial trial, especially when capital punishment is sought to be inflicted upon the accused.

Merely because the crime is heinous and brutal, it would not be just to get carried away sans any legal proof required to substantiate the charge of murder and rape.

Present matter at the most be a case of strong suspicious and no more.

It was apparent that the murder was neither pre-planned nor premeditated and evidence was neither clear, cogent nor credible.

Hence, there was absolutely no question of awarding death sentence to the accused, rather, it was a case wherein the accused must be given a benefit of doubt, nay, it would be a travesty of justice.

“…trial was conducted in a casual manner without ascertaining whether the legal aid provided to the accused was competent and whether the trial was just and fair in a capital punishment case. The quality and credibility of the evidence adduced is not even upto the mark.”

Since the prosecution miserably failed to bring home the guilt of the accused, there was no question of considering whether the case falls under the rarest of rare category wherein the question of award of capital punishment or otherwise would arise.

High Court opined that the decision of the Additional Sessions Judge was full of surmises and conjectures. The entire approach of the trial Court in dealing with the evidence was patently illegal and the conclusions arrived at by it were wholly untenable.

Therefore, Bench acquitted the accused of the offences punishable under Section 376 (2) (g), 302 and 326 of the Penal Code, 1860 in view of Section 368 (c) of the Criminal Procedure Code. [State of Maharashtra v. Rahimuddin Mohfuz Shaikh, Confirmation Case No. 1 of 2017, decided on 25-11-2021]


Advocates before the Court:

Ms. M.M. Deshmukh A.P.P for Appellant-State.

Ms. Rebecca Gonsalvez i/b Dr. Yug Chaudhry, appointed Advocate for Respondents.

Case BriefsSupreme Court

Supreme Court: In a case where the Orissa High Court had not assigned any reasons for the dismissal of an appeal, the bench of SA Nazeer* and Krishna Murari, JJ has set aside the said order and has held that the High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion.

In an eviction suit, a second appeal was filed before the High Court and the High Court dismissed the said appeal in limine. The order of the Court read as under:

“Considering the submission made herein and going through the question of law, this Court does not find any question of law for admitting the Second Appeal for which the Second Appeal stands dismissed.”

The Supreme Court took the opportunity to explain the provision under Section 100 of the CPC which provides for a right of second appeal by approaching a High Court and invoking its aid and interposition to redress error(s) of the subordinate court, subject to the limitations provided therein. Sub-section (1) of Section 100 of the CPC states that a second appeal would be entertained by the High Court only when the High Court is satisfied that the case ‘involves a substantial question of law’. Once the High Court is satisfied, after hearing the appeal, that the appeal involves a substantial question of law, it has to formulate that question and direct issuance of notice to the respondent.

Further, in case the appeal does not involve any substantial question of law, the High Court has no other option but to dismiss the appeal. However, in order to come to a conclusion that the appeal does not involve any substantial of law, the High Court has to record the reasons.

“Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted. The Court must display its conscious application of mind even while dismissing the appeal at the admission stage.”

It was, hence, held that the High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion.

[Hasmat Ali v. Amina Bibi, 2021 SCC OnLine SC 1142, decided on 29.11.2021]

*Judgment by: Justice SA Nazeer

Case BriefsSupreme Court

Supreme Court: In a case where the Punjab and Haryana High Court not only set aside the judgment of the District Judge rejecting the petition under Section 34 of the Arbitration and Conciliation Act 1996, but also awarded the claim of the respondents, together with interest, the bench of Dr. DY Chandrachud* and AS Bopanna, JJ set aide the said judgment after holding that the High Court seems to have proceeded as if it was exercising jurisdiction in a regular first appeal from a decree in a civil suit.

It explained,

“The jurisdiction in a first appeal arising out of a decree in a civil suit is distinct from the jurisdiction of the High Court under Section 37 of the 1996 Act arising from the disposal of a petition challenging an arbitral award under Section 34 of the 1996 Act.”

The judgment of the District Judge, rejecting the petition under Section 34 of the 1996 Act, was challenged before the High Court under Section 37 of the 1996 Act. The High Court allowed the appeal, inter alia, on the ground that the award lacked reasons and the reasons which were assigned were arbitrary and erroneous. Having held that the award was liable to be set aside, the High Court decreed the claim of the respondents for the supply of 22,389 wooden batons, together with the security deposit of Rs 1,00,000 and awarded interest at the rate of 12% from the date from which the amount became due.

In the present case, the High Court was required to determine as to whether the District Judge had acted contrary to the provisions of Section 34 of the 1996 Act in rejecting the challenge to the arbitral award. The arbitrator was entitled to draw relevant findings of fact on the basis of the evidence which was adduced by the parties. This was exactly what was done in the arbitral award. The award of the arbitrator was challenged unsuccessfully by the respondents under Section 34 of the 1996 Act.

“While considering a petition under Section 34 of the 1996 Act, it is well-settled that the court does not act as an appellate forum. The grounds on which interference with an arbitral award is contemplated are structured by the provisions of Section 34.”

The Court noticed that the District Judge had correctly come to the conclusion that there was no warrant for interference with the arbitral award under Section 34. Hence, apart from its failure to do so, the High Court went one step further while reversing the judgment of the District Judge in decreeing the claim in its entirety. This exercise was clearly impermissible.

It was, hence, held that there was no legal basis for the High Court to interfere with the judgment of the District Judge and, as we have noted earlier, to even go a step further by decreeing the claim.

[Punjab State Civil Supplies Corporation Ltd. v. Ramesh Kumar and Company, 2021 SCC OnLine SC 1056, decided on 13. 11.2021]

*Judgment by: Justice Dr. DY Chandrachud

Appointments & TransfersNews

Supreme Court Collegium has, on reconsideration, resolved to reiterate its earlier recommendation for the elevation of the following three Advocates as Judges in Kerala High Court:

1. Smt. Shoba Annamma Eapen,

2. Smt. Sanjeetha Kalloor Arakkal, and

3. Shri Aravinda Kumar Babu Thavarakkattil.


Supreme Court of India

[Collegium Statement]