Case BriefsSupreme Court

Supreme Court: Stating that the creation and/or sanction of the posts is the sole prerogative of the Government, the bench of MR Shah* and AS Bopanna, JJ has held that High Court cannot, in exercise of the power under Article 226 of the Constitution, issue a Mandamus to direct the Department to sanction and create the posts.

The Court was deciding a case wherein the respondents-original applicants were working as contingent paid part-time sweepers (Safai Karamcharies working for less than five hours a day) in a Post Office at Chandigarh. There is no documentary evidence on record to establish and prove that the respondents were working continuously.

It is important to note that there are no sanctioned posts of Safaiwalas in the Post Office in which the respondents were working.

A regularization policy was framed considering the decision of this Court in the case of Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1. It provided that the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure the services of such irregularly appointed, qualified persons, in terms of the statutory requirement of the Rules for the posts, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals.

By the impugned judgment and order, the Punjab and Haryana High Court directed to reformulate the regularization policy and to take a decision to sanction the post in a phased manner.

The Supreme Court, however, noted that since the Union of India/Department has already come up with a regularization policy in consonance with the law laid down by the Supreme Court, which does not apply to the part-time workers who do not work on the sanctioned post, the respondents were not entitled for the benefit of regularization.

The Court explained,

“As per the settled preposition of law, the regularization can be only as per the regularization policy declared by the State/Government and nobody can claim the regularization as a matter of right dehors the regularization policy. Therefore, in absence of any sanctioned post and considering the fact that the respondents were serving as a contingent paid part-time Safai Karamcharies, even otherwise, they were not entitled for the benefit of regularization under the regularization policy dated 30.06.2014.”

The Court took note of the decision in State of Maharashtra v. R.S. Bhonde, (2005) 6 SCC 751 wherein it was held that the status of permanency cannot be granted when there is no post and that mere continuance every year of seasonal work during the period when work was available does not constitute a permanent status unless there exists a post and regularization is done.

Holding that part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held, the Court said that

“Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work.”

Concluding that the regularization policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue Mandamus and/or issue mandatory directions to do so, the Court held,

“The High Court cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts.”

[Union of India v. Ilmo Devi, CIVIL APPEAL NOS. 5689-5690 OF 2021, decided on 07.10.2021]


Counsels

For appellants: ASG Madhvi Divan

For respondents: Advocate Rahul Gupta


*Judgment by: Justice MR Shah

Case BriefsHigh Courts

Andhra Pradesh High Court: M. Satyanarayana Murthy, J., expressed that,

“If a party to the document wants to annul the document, he has to file a suit under Section 31 of the Specific Relief Act before the competent Civil Court and if, third party wants to annul the document, he has to approach the competent Civil Court and seek relief under Section 34 of the Specific Relief Act.”

Murthy and Sodemma were husband and wife with no children. Murthy was the absolute owner of agricultural land and a house, he had alienated his entire property to his wife during his lifetime.

Sodemma who was the maternal aunt of the petitioner, bequeathed the said property to him as he had taken care of their welfare at the old age. Therefore, petitioner became the absolute owner and possessor of the said property as per the registered Will deed executed by Sodemma.

Respondent 15, son of younger brother of Murthy with a mala fide intention to become the owner of Murthy’s property hatched a plan and fabricated an adoption deed to claim that Murthy and Sodemma adopted respondent 14 and got the signature of Murthy and Sodemma on the said fabricated deed by fraud and misrepresentation.

Later, in the year 2002, respondent 15 fabricated unregistered agreement of sale on the blank stamp papers signed by Murthy having believed him.

Respondent 14 filed for partition of the above-mentioned property by claiming that he is adopted son of Murthy and Sodemma.

Respondent 15 also filed for specific performance of unregistered sale agreement alleged to have been executed by Murthy after lapse of more than 17 years from the date of alleged execution of the said unregistered agreement. Murthy and Sodemma contested both the suits and denied the execution of both the fabricated adoption deed dated 24.05.1993 and alleged unregistered agreement of sale.

Further, it was submitted that during the pendency of both the said suits, respondent 17, the then Minister for Animal Husbandry alleged to have purchased the property, which is the subject matter of those two suits, and started construction of palatial building in the subject property and he by abusing his power as the Minister for Animal Husbandry made the authorities concerned to issue antedated permissions in contravention of Rules.

This Court had directed that there shall not be any construction on the subject property.

Crux of the Matter

Alleged playing of fraud on Sub-Registrar in mutating the name of respondents 14 and 15,  registration of property in the name of respondent 16 allegedly at the instance of respondent 17.

Petitioners claim was that when the decree was passed, appeal were pending against both the decrees and common judgment, execution of sale deed by respondents 14 and 15 in favour of respondent 16 allegedly at the instance of respondent 17 deviating the decree was serious illegality and it amounted to ‘fraud’.

Tahsildar, respondent 8 was not supposed to mutate the names of respondents 14 and 15 and only due to influence of respondent 17.

Petitioner claimed that the very mutation of the name of respondents 14 and 15 in the revenue record, now mutated the name of respondent 16 after completion of sale transaction, registered document was tainted by ‘fraud’.

Analysis, Law and decision

To constitute fraud, there must be a suggestion, as a fact, of that which is not true, by one who does not believe it to be true; the active concealment of a fact by one having knowledge or belief of the fact; a promise made without any intention of performing it; any other act fitted to deceive; any such act or omission as the law specially declares to be fraudulent. 

In the present matter, Court stated that,

In the absence of any interim direction, registration of a document when presented for registration satisfying the requirements under the Stamp Act and Registration Act is justified.

 Court added that Registrar is bound to register the document presented for registration unless there is prohibition from registration of such document pertaining to the land covered by Section 22A, 35 (3) and Section 71 of the Registration Act. But no such ground was raised in the present matter.

In Court’s opinion, execution of registered sale deed by respondent 14 and 15 in favour of respondent 16 by playing fraud was purely a mixed question of fact and law, such a question cannot be decided in writ petition while exercising power under Article 226 of the Constitution of India.

Supreme Court in Satya Pal Anand v. State of M.P., AIR 2016 SC 4995, held that “a party aggrieved by registration of a document is free to challenge its validity before a competent Civil Court.”

High Court held that while exercising jurisdiction under Article 226, this Court cannot annul document on the ground of ‘fraud’ and ‘misrepresentation’ since they are both mixed questions of fact and law, such roving enquiry cannot be conducted by the Constitutional Court to issue a writ of Mandamus as it is an extraordinary and discretionary relief.

When the documents are presented for registration before the Sub-Registrar, his duty is to register the same subject to any bar contained in any law and satisfying the requirements under the provisions of the Stamps and Registration laws. Such registration of document is nothing but discharging public duty.

Therefore, registration of document while discharging public duty by public officer cannot be said to be fraudulent act and such act will not attract the definition of fraud under Section 17 of the Indian Contract Act.

When can a document be cancelled?

It is settled law that the document can be cancelled only by filing suit before the Civil Court under Section 31 of the Specific Relief Act by a person, who is a party to the document.

If a third party intended to annul the document, he has to file a suit to declare the suit document as illegal and not binding on the plaintiff.

Due to lack in merits, no relief was granted and petition was dismissed.[Manfipudi Nagaraju v. State of Andhra Pradesh, WP No. 1399 of 2021, decided on 8-10-2021]

Appointments & TransfersNews

Centre Notifies Transfer of 15 High Court Judges


The President, after consultation with the Chief Justice of India, is pleased to transfer the following High Court Judges and to direct them to assume charge of their offices in High Courts where they have been transferred to:-

Sl.

No.

Name of judge

(S/ShriJustice)

Transfer from High Court Transfer to High Court
I Jaswant Singh Punjab and Haryana Orissa
2 Smt. Sabina Rajasthan Himachal Pradesh
3 Sanjaya Kumar Mishra Orissa Uttarakhand
4 Manindra Mohan Shrivastava Chhattisgarh Rajasthan
5 Ahsanuddin Amanullah Patna Andhra Pradesh
6 Ujjal Bhuyan Bombay Telangana
7 Paresh R.Upadhyay Gujarat Madras
8 M.S.S.Ramachandra Rao Telangana Punjab and Haryana
9 Arindam Sinha Calcutta Orissa
10 A.M.Badar Kerala Patna
11 YashwantVarma Allahabad Delhi
12 Vivek Agarwal Allahabad MadhyaPradesh
13 ChandraDhariSingh Allahabad Delhi
14 AnoopChitkara Himachal Pradesh Punjab and Haryana
15 RaviNathTilhari Allahabad Andhra Pradesh

Ministry of Law and Justice

High Court Round UpLegal RoundUp

Monthly Roundup


Here’s a quick run-through of all the latest and interesting updates from the High Court’s section.

Go ahead and check out the September Updates below.


Allahabad High Court


Cow Slaughter Act

  • Is Magistrate empowered to pass order for disposal of property under CrPC when vehicle is seized under U.P. Prevention of Cow Slaughter Act? All HC examines

Dr Yogendra Kumar Srivastava, J., held that the Magistrate is denuded of his power to pass any order under Sections 451, 452 and 457 CrPC for release of a vehicle seized for alleged violation of provisions of the U.P. Prevention of Cow Slaughter Act.

Read more…


Andhra Pradesh High Court


GST

  • Can Commissioner of Central Tax GST Commissionerate withhold the SVLDRS Discharge certificate for transition of disputes credits to GST?

Availing of transitional credit by the petitioner under the GST Act on the Cenvat credit for GTA and C&F Agency services under the Central Excise Act is a subsequent and separate transaction from the declaration made by him under the Scheme and the adjudication of such claim cannot be said to be barred in law or without jurisdiction.

Read more…

Maintenance

  • Daughter turning major, will not be entitled to maintenance from father? Andhra Pradesh HC explains the law

While explaining the law on whether father is obligated to provide maintenance to his daughter irrespective of the fact that she has turned major,Joymalya Bagchi, J., refused to interfere with the decision of lower court.

Read more…

Minimum Wages

  • Whether Minimum Wages Act, 1948 will be applicable to a ‘Math’? In what circumstances can State be permitted to interfere? AP HC explains

Temple and Math are both religious institutions, but the purposes for which they are established and the manner in which they function are clearly specified in Section 2(17) of  A.P. Charitable and Hindu Religious Institutions & Endowments Act, 1987 Act.

Read more…


Bombay High Court


Right of Inheritance

  • Widow’s right of inheritance after re-marriage: Will mother of deceased be fully entitled to claim dues of deceased son or does wife who re-marries will also have share? Bom HC delves to answer

Addressing a matter pertaining to the widow’s right of inheritance on the property of the deceased husband,S.M. Modak, J., observed that,

Both wife and mother will have an equal share in light of Section 24 of the Hindu Succession Act, which was in existence at the time of the dispute.

Read more…

Supply of Water

  • Two hours, Twice a month, water supply – Even after 75 years of independence, Bom HC addresses request for regular water supply || State Govt. depriving people of their fundamental right

State Government by providing water to its citizens only twice a month, and that too for a mere two hours, is not only depriving its people of their fundamental right, but in doing so is inviting criticism and tarnishing its image, especially when such is the scenario after 75 years of independence.

Read more…

Rehabilitation

  • Negligent approach of Govt & a cascading effect: Mere right of rehabilitation will be equivalent to right of ownership? Detailed report on how slum dwellers encroached public land and claimed their right

“It is not new that valuable Government land on account of the negligent approach of the officers in charge by not protecting such lands from encroachment have stood extinguished from the Government’s holding, causing a serious cascading effect.”

Read more…

Misery of Parents

  • “Daughters are daughters forever and sons are sons till they are married”: Bom HC orders son to vacate flat of 90 yrs old parents

Noting the misery of parents aged 90 years,G.S. Kulkarni, J., observed that,

 “Daughters are daughters forever and sons are sons till they are married” albeit there would surely be exemplary exceptions.

Read more…

Sexual Harassment

  • Fear of stigma, not being believed and being blamed: 17-year-old girl leaving a note to her mother explaining ill deeds of her uncle who sexually harassed her, ended her life | Bom HC delves to know what happened

Unfortunately, we have not been able to create an atmosphere in the Society where parents, teachers and adults in company of the child can identify signs of abuse and make sure children received care and protection.

Read more…

Rape on False Promise of Marriage

  • ‘Astrological Incompatibility’ as reason to refuse marriage: Bom HC refuses to discharge man accused of rape on false promise of marriage

While noting a case of false promise to marry Sandeep K. Shinde, J., refused to allow application wherein a man claimed the reason of astrological incompatibility valid for refusing marriage.

Read more…

Contractual Employees

  • To exercise rights, can contractual employees approach a permanent employer? Bom HC verdict determines

Contractual employees are engaged through contractors, their service conditions are governed by the contracts between them, hence in case of any grievance, they shall approach the contractor and not a principal employer.

Read more…

Conviction under Section 304 Part I Penal Code, 1860

  • “Necessary to read mind of offender and not consider offence devoid of emotions”: Bom HC acquits accused of offence under S. 302 IPC rather convicts under S. 304 Part I IPC

Convicting a person under Section 304 Part I of Penal Code, 1860 Division Bench of Sadhana S. Jadhav and Sarang V. Kotwal, JJ., held that,

On finding that there was no hope that his beloved wife would return to matrimonial abode, accused got enraged an lost self-control and assaulted his wife with whatever available just nearby.

Read more…

Cheating

  • Tendency of guaranteeing decision to come in favour of one party or other, amounts to maligning a particular Judge and at large, institution itself by giving an impression that justice can be bought

It is not uncommon feature that when the matter is pending before the particular Court, the parties indulge into transaction under the guise of ‘settlement’ and sometimes it so happens, even without the knowledge of counsel on record, who may prefer to argue the case on its merit. This tendency of guaranteeing the decision to come in favour of one party or the other, amounts to maligning a particular Judge and at large, the institution itself by giving an impression that justice can be bought and the Prosecutors and Judges can be sold.

Read more…

POSH Judgments

  • POSH Judgments and Order to be delivered only in Chambers or in-camera, media disclosure forbidden: G.S. Patel, J. issues detailed guidelines

While addressing an issue revolving around the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 and  Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Rules, 2013,  G.S. Patel, J., laid down guidelines with an endeavour to anonymize the identities of the parties.

Read more…


Calcutta High Court


Bengal Post Poll Violence

  • Retired Chief Justice of Calcutta HC Manjula Chellur to monitor SIT in the Poll violence cases

The Full Bench of Rajesh Bindal, ACJ and I.P. Mukerji, Harish Tandon, Soumen Sen and Subrata Talukdar, JJ., in furtherance to the order passed on 19-08-2021 which had directed the constitution of SIT to monitor the investigation of specific categories of cases monitored by a retired Hon’ble Supreme Court Judge, appointed a retired Chief Justice of a High Court stating non-availability of a retired

Read more…

Illegal Allotment of Plot

  • Did Sourav Ganguly play with the ‘System’? Cal HC pens down its decision in illegal allotment of plot to cricketer against State’s land allotment policy

“It is a fact that Sourav Ganguly has brought laurels for the country in Cricket. But when it comes to law, our Constitutional Scheme is that all are equal and no one can claim to be exclusive, above the law and seek benefits from the State, especially when question arises for allotment of plots for commercial venues.”

Read more…

Domestic Violence Act

  • Is it proper to invoke S. 482 CrPC for quashing Magistrate’s order in a proceeding under S. 12 r/w S. 23 of Domestic Violence Act on the point of maintainability? Cal HC determines

 Bibek Chaudhari, J., considered the question as to whether Section 482 CrPC is applicable in relation to an application under Section 12 of the Protection of Women from Domestic Violence Act.

Read more…


Chhattisgarh High Court


No work No pay

  • The principle of ‘No Work No Pay’ would not be applicable where the rule expressly direct otherwise; Matter remitted back to consider grant of full pay and allowances

 No Work No Pay’ principle has been laid down keeping in view public interest that a Government servant who does not discharge his duty is not allowed pay and arrears at the cost of public exchequer.

Read more…

Extortion

  • When prima facie ingredients of S. 383 IPC is not made out, then the offence under S. 388 IPC cannot be made out

“…what is necessary for constituting an offence of ‘extortion’ is that the prosecution must prove that on account of being put in fear of injury; the victim was voluntarily delivered any particular property to the man putting him into fear. If there was no delivery of property, then the most important ingredient for constituting the offence of ‘extortion’ would not be available. Further, if a person voluntarily delivers any property without there being any fear of injury, an offence of ‘extortion’ cannot be said to have been committed.”

Read more…

Prevention of Corruption Act

  • Interdicting a criminal proceeding midcourse on ground of invalidity of the sanction order not appropriate unless failure of justice has occasioned as per S. 19(3) PC Act

“…previous sanction for prosecution is required in respect of a public servant who is employed and is not removable from his office save by or with the sanction of the State Government.”

Read more…


Delhi High Court


Trademark Infringement

  • Will the rights of a prior user override those of a subsequent user even though it had been accorded registration of its trademark? All-Inclusive Report on Trademark Infringement of ‘Rajdhani’

The rights of a prior user will normally override those of the subsequent user even though it had been accorded registration of its trademark.

Read more…

Properties Mortgaged to Banks

  • If Banks have to survive, borrowers must exist and not mere borrowers but productive borrowers: Del HC on whether borrowers have protection against arbitrary disposal of properties mortgaged to banks at low prices? [In-depth Report]

The Banks seek collaterals and security to prevent losses to themselves. It is, but reasonable, to expect the Banks such as the respondent, to also respect the right of the borrowers to maximize their profits from the sale of collaterals/securities by the banks.

Read more…

 Advocates Representation in Labour Courts

  • Representation by Advocates before Labour Courts: Del HC reiterates there is no absolute bar

Judicial decisions on the question of consent, including implied consent, have primarily turned on the facts of each case.

Read more… 

Indian Army

  • Under Indian Army, can mere acceptance of a resignation create a vacancy for being filled up from cadet in waiting? Read what Del HC says

 “Mere acceptance of resignation may not be sufficient to consider creation of a vacancy for being filled up from the cadet in the waiting.” 

Read more…

Eviction Order

  • What are the essential ingredients that a landlord is required to show for purpose of getting an eviction order for bonafide needs? Del HC elaborates

 Jayant Nath, J., while addressing a matter noted the essential ingredients that a landlord is required to show for the purpose of getting an eviction order for bonafide needs.

Read more…

Custodial Violence

  • Remedial action to be taken so that unscrupulous officers at Jail do not take advantage of knowledge of non-working of CCTVs & get away by doing any illegal act

Walls of prison, howsoever high they may be, the foundation of a prison is laid on the Rule of Law ensuring the rights to its inmates enshrined in the Constitution of India.

 Read more…

 Voluntary Retirement

  • Under Pension Rules, if a Government Servant seeks voluntary retirement, he must have completed service of 20 years and may serve notice of 3 months

 Government Servant at any time, after he has completed 20 years of qualifying service, may give a notice of 3 months to retire from the service.

Read more…

 Testimony of Child victim

  • Can testimony of child victim be trustworthy? HC reiterates law on finding child witness competent

 Under Section 29 of the POCSO Act, there is also a presumption regarding the guilt of an accused. As a result, the prosecution has to lay down and prove the fundamental facts regarding the guilt of the accused but the burden of proof on the prosecution is not of ‘beyond reasonable doubt’. Once the facts are proved, the onus is on the accused to lead evidence to rebut the presumption raised under Section 29 of the POCSO Act.

Read more…

 Territorial Jurisdiction

  • Will the place mentioned on invoice decide the jurisdiction of a Court on filing of a suit against it? Del HC explains

 Section 20 clearly provides that a Court within whose local limits the cause of action, “wholly or in part”, arises, would have territorial jurisdiction to try the suit.

Read more…

 Settlement

  • Person accused under S. 307 IPC if entered into a compromise with victim, can Court quash criminal proceedings in light of settlement? Delhi HC unravels

 “…an offence under Section 307 IPC will fall under the category of heinous offence, and therefore, has to be treated as a crime against the society and not against the individual alone and the proceedings under Section 307 IPC cannot be quashed only on the ground that the parties have resolved the entire disputes amongst themselves.”

Read more…

 Compulsory Retirement

  • On what basis is an employee compulsory retired? An account of Compulsory Retired, IRS Officer | Read Del HC’s opinion stressing on ‘compulsory retirement, a subjective satisfaction’

 Fundamental source of compulsorily retiring an employee of the Government is derived from “Doctrine of Pleasure” which springs from Article 310 of the Constitution of India.

Read more…

Arbitration

  • ICADR Rules regarding procedure come into play only after arbitration commences before appropriate jurisdiction of law: Del HC summarises law on seat, venue of arbitration

 While observing that the role of ICADR Rules shall come into play with regard to the procedure to be followed, only after the arbitration commences before the appropriate jurisdiction of law, Suresh Kumar Kait, J., reiterated the observation of BGS SGS SOMA JV v. NHPC(2020) 4 SCC 234, wherein it was stated that if the arbitration agreement provides that arbitration proceedings “shall be held” at a particular venue, then that indicates arbitration proceedings would be anchored at such venue, and therefore, the choice of venue is also a choice of the seat of arbitration. 

Read more…


 Gujarat High Court


 Gazettes

  • E-publishing of old gazettes to be done within six months; Court directs State to submit compliance report

 “…brought into notice of the Court that as far as the past or old Notifications issued earlier were concerned, such old Gazettes as prayed in prayer (b), the process was underway and the same will be over within a short period.”

Read more…

Detention

  • Detaining authority fell in error in interpreting “dangerous person”; Court allows petition against detention

 Paresh Upadhyay, J., allowed a petition which was filed against the order passed by the Commissioner of Police, Surat whereby the petitioner is detained under the Gujarat Prevention of Anti Social Activities Act, 1985.

Read more…

Joint family Property

  • Whether permission is required to sell undivided share of minor in joint family property or not? Succinct report on Gujarat HC’s decision

“…interest of the minor son is to be taken care of, while his share of joint family property is being sold.”

Read more…

 Compensation

  • Discretion not to be exercised in blanket form which may otherwise lead to improper exercise of such power and will frustrate object of grant of compensation under Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2020

 R Mohapatra J. allowed the appeals and directed to disburse the awarded amount by liquidating the fixed deposits, if any, to the claimants on proper identification, as expeditiously as possible. 

Read more…


 Himachal Pradesh High Court


Gallantry Medal

  • “Dispatching the gallantry medal directly to the writ petitioner through courier amount to breach of protocol”; Such awards must be given only in ceremonial functions of Independence Day/ Republic Day

Court observed that while promoting acts of bravery and courage, gallantry awards are made for ensuring the spirit of bravery the recipients of awards must be honored in ceremonial functions of Republic Day or Independence Day. It was also observed that delay in the conferment of gallantry awards should be deprecated.

 Read more…

Maintenance

  • “Granting interim maintenance is similar to giving first aid”; Maintenance granted to wife under S. 125 CrPC; Solemnization of marriage under challenge is subject to proof

 Anoop Chitkara J. remarked, “There is neither any illegality nor the maintenance beyond the petitioner’s means; as such, there are no merits in the present petition.” 

Read more…


 J&K and Ladakh High Court


Freedom of Press v. Breach of Peace and Defamation

  • J&K and Ladakh HC | Freedom of Press v. Breach of Peace and Defamation of authority; HC holds no fetters can be placed on the press by registering FIR

“No fetters can be placed on the freedom of press by registering the FIR against a reporter, who was performing his professional duty by publishing a news item on the basis of information obtained by him from an identifiable source.”

Read more…

Right to go Abroad

  • Right to go abroad to pursue studies cannot be denied only on the ground of involvement in a criminal case; HC waives conditional bail order

“The petitioner cannot be denied the right to go abroad to pursue studies only on the ground that he is involved in a criminal case. Looking to the gravity of charge and the young age of the petitioner and his quest to acquire quality education, the request made appears to be genuine.”

Read more…

Right to protect Property

  • Husband is not a stranger; has every right to protect property of his wife; HC dismisses petition challenging husband’s locus standi

“…the husband of the purchaser of the property has every right to look after and protect the property of his wife”

Read more…

Arbitration and Conciliation Act

  • Interim Award v/s Interim Order; HC clarifies prerequisites of S. 31 (6) and S. 17 (1)(ii)(e) of the Arbitration and Conciliation Act, 1996

“While passing an order under Section 17 (1)(ii)(e) of the Act of 1996, an arbitral Tribunal would be justified in considering the prima facie case, the balance of convenience and similar other factors at the time of passing such an order, while making an interim award under Section 31 (6) of the Act, the arbitral Tribunal has to be satisfied that there is an admission or acknowledgment of liability on the part of the party against which the award is proposed to be made.”

Read more…

Rumourous Tweet

  • Will a rumourous tweet make one legally liable even when one deletes it on coming to know it to be untrue? HC decides

“A perusal of the petitioner’s tweet would reveal that it begins with words “JUST HEARD”, meaning thereby that what was uploaded by him was just heard by him and he had no personal knowledge of the same respondents and this subsequent conduct of the petitioner also makes it ample clear that the said tweet was uploaded in a good faith without any criminal intention to generate the consequences as provided by section 505 RPC.”

Read more…

Appeal

  • Appeal filed without annexing decree sheet passes admission stage due to lapse on the part of Court Registry; Will the appeal survive? HC decides

“If the Appeal has passed through the stage of admission through oversight of the office, then, the only fair and rational course to adopt would be to adjourn the hearing of the appeal with a direction that the appellant should procure the certified copy of the decree as soon as it is supplied to him.”

Read more…


Jharkhand High Court


Non-Appearance of Counsel

  • Can a criminal case be decided ex-parte? What is the resort in cases of non-appearance of counsel of the accused? HC answers

Anubha Rawat Choudhary, J., set aside the order of conviction under Section 304A of IPC passed without hearing the accused. The Bench stated that in case of non-appearance of counsel for the accused it is the duty of the Court to appoint another counsel as amicus curiae to defend the accused.

Read more…

Railway Ticket

  • Mere holding ticket for passenger train will not suffice purpose to declare deceased not a bonafide passenger under S. 2 (29) in a benevolent legislation like Railways Act, 1989; Contrary evidence must

“…once the ticket number has been brought on record which indicates that it was from Asansol to Madhupur, the railway ought to have brought on record any material to show that this ticket was never sold by the railway or this ticket was never issued for the express train and only on the argument, that deceased was holding ticket for passenger train will not suffice the purpose to declare the deceased not a bonafide passenger under Section 2 (29) of the Act in a benevolent legislation like Railways Act, 1989.”

Read more…

Protection of Fauna and Flora

  • “Duty of Forest Guards is to guard not only forest but also animals”; HC emphasises on need to protect fauna along with flora

Reprehending the conduct of the forest staffs, the Bench stated,

“The duty of the Forest Guards as also the Range Officers is to guard not only the forest but also the animals for which the staffing pattern to that effect has been made but even though the elephant calf reported to have died 3-4 days ago, nobody was aware about the death which suggests about the functioning of the employees/officers of the Forest Department…”

Read more…

Departmental Proceedings

  • Conclusion of Departmental proceeding on the ground of conviction by Trial Court; will subsequent acquittal by High Court affect the outcome of departmental proceeding?

 “It is well known that the High Court while acquitting the petitioner has decided the criminal case only and the authority concerned has to consider the reinstatement of the petitioner in service while passing a reasoned order.”

Read more…


Karnataka High Court


Maternity Leave

  • Kar HC granted maternity leave to senior resident doctor employed on contract basis who was denied the same by Joint Director, ESIC Medical College & Hospital, Kalaburagi

Court observed that the Office Memorandum dated 11-01-2018 discloses that in respect of Teaching and Non-Teaching Staff they are entitled to 26 weeks of Maternity Leave, subject to the condition that such person must have rendered at least 80days of service in the past 12 months preceding the date of expected delivery, as envisaged in the Maternal Benefit (Amendment) Act, 2017.

Read more…

Criminal Trial

  • “Chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court” Application of judicious mind sine qua non for setting criminal trial in motion

Section 503 IPC, which defines ‘criminal intimidation’ would direct that whoever threatens another person with any injury to his person, reputation or property by an act, he is not legally bound to do and executes certain threats, commits criminal intimidation.

Read more…

Right to Life

  • Freezing of Bank accounts by investigating authorities would adversely affect right to life under Art. 21 of the Constitution of India

Mohammad Nawaz J. allowed the petition and defreezes the bank accounts subject to a bank guarantee.

Read more…

Perjury

  • “Act of perjury is treated as a heinous offence in all civilized societies”; Delay in consideration of such complaints can pollute the fountain of justice

Krishna S Dixit, J., allowed the petition and set aside the impugned order highlighting the importance of perjury applications to be considered at the earliest.

Read more…

Textbooks in braille

  • Kar HC directs State Government to provide text books in Braille for all special children (visual disabilities) positively within a period of 15 days from the date of order

A Division Bench of Satish Chandra Sharma, CJ. and Sachin Shankar Magadum J. directed the State Government to provide textbooks in Braille for all specially abled children having visual disabilities within a period of 15 days.

Read more…


Kerala High Court


Mental Health

  • “Good Samaritans are absent”; HC issues detailed directions for handling cases of mentally ill prisoners where family/friends shows reluctance to take their custody

“The powerless, voiceless mentally ill prisoners languishing in prisons and mental health centres for years together, embroiled in legal quagmire and abandoned by family and friends. The system and the society presume them to be devoid of knowledge and feeling, thereby turning them into stone.”

Read more…

Criminal Antecedents

  • What sort of reasoning is this? HC slams Authorization Committee for rejecting Kidney donation application because the donor has criminal antecedents

“I hope, they will not reject the applications because the donor is a Hindu, Christian, Muslim, Sikh, or person in a lower caste after comparing with the religion and caste of the recipient.”

Read more…

Public Servants

  • No prosecution against public servants without prior approval of government; HC dismisses CBI’s revision petition

Narayana Pisharadi, J., dismissed the revision petition filed by CBI due to its failure to obtain prior sanction of government before prosecuting public servants.

Read more…

Post Poll Murder

  • Rejection of bail would result in protraction of trial and indefinite detention; HC grants bail to Communist Party activists in post-poll murder case

Haripal, J., granted bail to the accused involved in post poll murder case of a Muslim League member. The Bench opined,

“No doubt, the allegations against the accused are very grave. Still, so long as the final report is laid, it is not in the interest of justice, unless overwhelming reasons are made out, to keep the suspects in custody.”

Read more…

Violence against Doctors

  • “Attacks on Doctors cannot be condoned”; HC directs State to give publicity to penal consequences of such attacks and increase awareness

Finding it shocking and unbelievable that were 278 attacks against Doctors, Nurses and Healthcare Workers in the State of Kerala, the Division Bench of Devan Ramachandran and Kauser Edappagath, JJ., stated that,

“The attacks on Health Care Workers or an attempt to intimidate or threaten them, for whatever be the reason can never be condoned or tolerated.”

Read more…

Legitimacy of a Child

  • Can DNA test be conducted to determine legitimacy of a child in a divorce petition without the child being on the party array? HC answers

The illegitimacy or paternity of the child is only incidental to the claim for dissolution of marriage on the ground of adultery or infidelity. The child’s presence is not necessary to adjudicate the relief claimed.”

Read more…

Amendment

  • A case of wanton negligence and callousness of petitioner; HC rejects application for amendment making inconsistent and alternative pleadings in written statement

V.G. Arun, J., held that no amendment can be allowed in written statement where it seeks to change former admissions.  The Bench stated,

“Even the most liberal approach towards amendment of written statements will not justify the approval of such an application.”

Read more…

Fake Lawyer

  • “If leniency is taken, just considering the fact that she is a young lady, it will be a shame for the whole judicial system”; HC dismisses bail application of infamous fake lawyer

“The illegal activities adopted by her that too before the court of law has to be dealt with an iron hand. If leniency is taken, just considering the fact that she is a young lady, it will be a shame for the whole Judicial system and would shake the confidence of the public in judicial system.”

Read more…

Sexual Assault

  • Priest of Temple commits penetrative sexual assault on young girl: Ker HC observes which God would accept obeisance and offerings of such Priest or make him a medium?

“We wonder which God would accept the obeisance and offerings of such. Priest or make him a medium?”

Read more…

Rape Victim

  • Can the fact that minor rape victim attained majority and married the rapist lead to quashment of criminal proceedings? HC answers

“When it (rape) is towards a child the gravity is all the more severe and excruciating as it may even low self-esteem, self confidence and dignity of the child and that the psychic effect and impact would cause a devastating effect on the minor and result in far-reaching consequences.”

Read more…

Talaq

  • Mere use of word ‘irrevocably’ does not render pronouncement of talaq illegal if intention of the husband shows otherwise; HC states

“Notwithstanding the use of the word ‘irrevocably’ in the talaqnama, the respondent must be seen as having pronounced a talaq ahsan, that became irrevocable only on the expiry of the period of three lunar months immediately following the single pronouncement of the talaq…”

Read more…


Madras High Court


Currency Notes

  • There are many known heroes and unsung heroes. Whether printing the photo of National Leader Netaji Subash Chandra Bose on Indian Currency is possible or not? Detailed Report

If every claim is started to be entertained, there will not be any end.

What is the use of printing images of Great Leaders, who fought for our Independence without following their principles, in currency notes?; merely because the portrait of Mahatma Gandhi is appearing in the currency, does it mean that the currency is used only for legal purposes. Whether the currency should have the portrait of a particular leader or otherwise is the policy of the Government.

 Read more…

Supreme Court Benches 

  • Madras HC on setting up Benches of Supreme Court: An Indian, from a far-flung corner, has been unable to approach great Citadel of Justice, hailed as the ‘sentinel on the qui vive’

“Litigants are compelled to accept the wrong orders in view of inaccessibility to New Delhi and the exorbitant expenses towards engaging a counsel.”

Read more…

Bumper to Bumper Insurance Policy

  • Mandating coverage of bumper to bumper insurance policy: Not logistically and economically feasible? Has Madras HC modified its earlier decision? Read full report

Vaidyanathan, J., cancelled the bumper-to-bumper policy which was made mandatory by this Court’s order for new vehicles for a period of 5 years.

Read more…

IT Rules, 2021

  • ‘Oversight mechanism to control media by Govt. may rob media of its independence’: Madras HC’s prima facie observation

The Division Bench of Sanjib Banerjee, CJ and P.D. Audikesavalu, J., prima facie observed that an oversight mechanism to control the media by the government may rob the media of its independence and fourth pillar, so to say, of democracy may not at all be there. The High Court was hearing a challenge to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

Read more…

Illegal encroachment

  • Are Courts bound to protect the interests of the “deity” in temple? Madras HC’s ruling on “Deity” in temple a “Minor”

When the trustee or the Executive Officer or the custodian of the idol, temple and its properties, leave the same in lurch, any person interested in respect of such temple or worshipping deity can certainly be clothed with an adhoc power of representation to the protect its interest.

Read more…


Madhya Pradesh High Court


Flag Code

  • Flag Code is not “law” under Art. 13 of Constitution, but mere compendium of executive instructions; flying of National Flag between sunset and sunrise not contemptuous

S.A. Dharmadhikari, J., allowed a petition which was filed invoking inherent powers of this Court under Section 482 of the CrPC seeking quashment of FIR registered alleging offence punishable under Section 2 of the Prevention of Insults to National Honour Act, 1971.

Read more…

Bail

  • Much to be done in the field of Forensic Sciences and its use in Administration of Justice and Legal Education; Court draws attention towards pendency of matters

Anand Pathak, J., while hearing a matter related to Section 439 CrPC for grant of bail which was his fourth application, highlighted some major issues related to advancement of Forensic Sciences and its use in Administration of Justice and Legal Education.

 Read more…

Transfer

  • Transfer of the only teacher in school stayed until State’s reply; Court holds order as illegal, without application of mind and contrary to the public policy

Sanjay Dwivedi, J., decided in the matter of a petition which was filed challenging an order whereby the petitioner had been transferred from Government Middle School Sewara-Sewari to Government Middle School, Batyawada.

Read more…

Elections

  • Parliament is empowered to frame law as regards conduct of elections but conducting elections is the sole responsibility of the Election Commission; Court dismisses PIL

The Division Bench of Mohammad Rafiq, CJ. and Vijay Kumar Shukla, J., dismissed a PIL which was filed by the Nagrik Upbhokta Margdarshak Manch with a prayer that the Election Commission of India may be directed not to conduct bye-elections of Parliamentary Constituency of Khandwa and Assembly Constituencies of Prathvipur, Jobat and Rajgarh in the State of Madhya Pradesh and direct the respondents to conduct the bye-elections only after assessing the ground situation of coronavirus in the State.

Read more…


Meghalaya High Court


COVID-19 Vaccination

  • State not to insist on production of Aadhaar Card as the only proof of identity for vaccination

The Division Bench of Biswanath Somadder, CJ. and H.S. Thangkhiew, J. heard a PIL which was filed with two primary issues. The first issue was with regard to the mandatory vaccination which was dealt by the order dated 23-06-2021. The other issue was with regard to the method of implementation of the Government Welfare Schemes meant for the marginalized section of the society in the State of Meghalaya.

Read more…

Meghalaya Resident Safety and Security Act

  • Constitutional validity of Meghalaya Resident Safety and Security Act, 2016 challenged; Court directs State to explain purpose of facilitation centres

The Division Bench of Biswanath Somadder, CJ. and H. S. Thangkhiew, J., dealt with a PIL which was filed challenging the constitutional validity of Meghalaya Resident Safety and Security Act (MRSSA), 2016.

Read more…


Orissa High Court


POCSO Act

  • “India will be free when the women feel safe to walk in the streets of India in the midnight”; Conviction upheld under S. 341 IPC and S. 4 of POCSO Act

“Court observed that the act of the appellant in coming in front of the victim and her sister and catching hold of the handle of the bi-cycle to stop their movement which led them to fall on the ground…”

Read more…


Patna High Court


Right to Appeal

  • Victim’s Right to appeal; Is there a right conferred on victim to appeal for enhancement of sentence? HC answers

The Division Bench of Ashwani Kumar Singh and Arvind Srivastava, JJ., reiterated that a victim has no right to maintain an appeal under the proviso to Section 372 of the CrPC on the ground of inadequate sentence.

Read more…


Punjab and Haryana High Court


NDPS Act

  • Huge recovery of contraband drug, failure to register FIR under NDPS Act; HC senses attempt to protect the offender by the authority; hands over the case to CBI

“This is a serious lapse and inaction on the part of the Punjab Police as well as the Drug Controller and this clearly reveals that everything is not normal with the investigation of the NDPS cases in the State of Punjab.”

Read more…

 Motor Vehicles Act 

  • Difficult to fathom Corpn. was oblivious of Statutory requirements; HC comes down heavily on Patna Municipal Corpn. for failure to get its vehicles registered under MV Act

 “It is difficult to fathom that Patna Municipal Corporation, a municipal body originally established in 1922, was oblivious of the factum of the requirement of getting 925 vehicles (Approx.) registered under the provisions of the Motor Vehicles Act, 1988.”

Read more…

  • Driving license and income tax record suggest contradictory age details; HC resolves the age controversy in an accident claim case

 Anil Kshetarpal, J., denied interfering with the decision of the Motor Accident Claims Tribunal with regard to age assessed by the Tribunal wherein two contradictory evidences were placed to prove the age of the deceased. The Bench stated,

No doubt, there is a difference between the date of birth in the driving license as well as the income-tax record of the deceased-late Sh. Ravinder Kumar, however, neither of them is a document to prove his age. 

Read more…

 Proof of Age

  • Is Aadhaar Card a firm proof of age? HC answers while granting protection to a couple who married against wishes of family

 Amol Rattan Singh, J., directed protection to couple who were facing threats after getting married against the wishes of their family.

Read more…

Illegal Migrants

  • Make people aware of mechanism for identification and deportation of persons suspected to be illegal migrants; HC directs Bihar government

 The Division Bench of Sanjay Karol, CJ and S. Kumar, J., asked the State government to sensitize people regarding the consequences of illegal migration, how to identify them and requirement to inform the officers concerned of the presence of illegal migrants in the State.

Read more here…

 Live-in Relationship

  • No offence by married person being in live-in; HC differs with Allahabad High Court’s decision

Amol Rattan Singh, J., held that since adultery is not an offence, no offence would be committed by a married person by him/her being in live-in even when his/her divorce petition is pending before the Court.

Read more… 

Honour Killing

  • “Culpable failure to supervise investigation”; HC slams police for laxity in investigation, issues detailed directions for effective dealing of Honour Killing cases

 Arun Kumar Tyagi, J., while addressing bail application of accused in a case pertaining to Honour Killing, stated it to be a,

“Glaring example how the directions given by Supreme Court are flouted, how the necessity of protection to the couple marrying against the wishes of their family members is ignored.” 

Read more…

 Child Marriage

  • Where minor wife fails to obtain decree of nullity before attaining age of majority, the marriage becomes a valid one; HC interprets

 The Division Bench of Ritu Bahri and Arun Monga, JJ., held that in case of child marriage, the marriage is voidable not void and a petition for nullity under Section 13(2)(iv) could only be filed if she-wife had got married at the age of 15 that too only before she attains the age of 18.

Read more…


Rajasthan High Court


Vaccination of Transgenders

  • Court directs State to abide by the guidelines framed by the Centre for vaccination of the Transgenders

The Division Bench of Sangeet Lodha and Vinit Kumar Mathur, JJ., disposed off a petition with directions which was filed seeking directions to the respondents to facilitate COVID-19 vaccination for transgenders of the State of Rajasthan.

Read more…

 Law of Precedence

  • According to Law of Precedence, judgment passed by Coordinate Bench binding, whereas judgment of other High Court has persuasive value; transfer order once executed cannot be cancelled, altered or modified 

Read more…


Tripura High Court


Bail Application

  • Custodial interrogation necessary to book associates to the offence; Court denies bail application of accused under S. 409, IPC

 The essential parameters for consideration of bail are the nature of offence, the punishment thereto, possibility of his tempering with the prosecution evidence in case of his release on bail, likelihood of his fleeing away from the jurisdiction of the court etc. 

Read more…

Reimbursement of Medical Bills

  • To determine emergent and immediate exigencies, authorities concerned must be rationale; Court allows petition of reimbursement of medical bills of judicial officer and wife

Arindam Lodh, J., allowed a petition which was filed against the rejection of his application for reimbursement of medical bills by the State Finance Department and the Treasury Officer.

Read more…

Live-in relationship

  • Constitutional Morality to override societal morality; Directs live in partners where the lady is married to another man to make representation before the Station House Officer and necessary orders may be passed

 It is well- settled that it is not in the Court’s domain to intrude upon an individual’s privacy. Any scrutiny or remark upon the so-called morality of an individual’s relationship and blanket statements of condemnation especially in matters where it is not called into question, to begin with, would simply bolster an intrusion upon one’s right to choice and condone acts of unwarranted moral policing by the society at large.

Read more…


Uttaranchal High Court


  • State directed to ensure that land owner who donated the land for establishment of sugar mill, their future generation should not be left starving

 Lok Pal Singh, J., allowed a petition which was filed mainly seeking a writ, order or direction directing the respondents to provide employment to the petitioner in terms of the agreement executed between their forefather and sugar factory. 

Read more…

Case BriefsSupreme Court

Supreme Court: The Division Bench of L. Nageswara Rao and B.R. Gavai, JJ., held that strict Rules Of Evidence do not apply on a departmental enquiry.

The Petitioner, an Additional District Judge in the State of Uttarakhand was facing a departmental enquiry. The grievance of the petitioner was that his application for placing certain documents on record before the Enquiry Officer was rejected on the ground that the Presenting Officer had made an endorsement on the documents that they do not deserve to be admitted in view of Sections 85A and 85B of the Indian Evidence Act.

Noticeably, another application filed by the petitioner before the Enquiry Officer giving an additional list of witnesses to be produced in the enquiry was dismissed as well; hence, aggrieved by dismissal of his applications, the petitioner had approached the High Court of Uttrakhand.

The contention of the petitioner before the High Court was that the documents mentioned in the application were relevant and the Presenting Officer as well as the Enquiry Officer committed an error in not permitting the said documents to be exhibited in the enquiry. The High Court observed that there was no error committed by the Enquiry Officer as the petitioner was permitted to adduce evidence on his behalf.  Although, the High Court permitted certain documents which the petitioner wanted to be exhibited in the enquiry, it did not allow exhibiting the case diary which was obtained by the petitioner under the Right to Information Act.

The counsel for the High Court, Ms.Bharti Reddy submitted that the documents could not be taken on record without proof as the case diary which the petitioner wanted to be exhibited was not permitted by the Enquiry Officer on the ground of lack of proof for the said document as required under the provisions of the Evidence Act.

Holding that strict rules of evidence are not applicable to a Departmental Enquiry, the Bench stated that no prejudice would be caused to anyone if the case diary is placed on record. Accordingly, the petitioner was granted permission to exhibit the case diary as a document in the departmental enquiry.

The Bench while directing to complete the departmental enquiry expeditiously disposed of the petition along with pending applications. [Kanwar Amninder Singh V. High Court of Uttarakhand, Special Leave to Appeal (C) No(s).2507/2021, 17-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For Petitioner(s): Mr. Devdutt Kamat, Sr. Adv.

For the High Court: Mr. Sachin Sharma, AOR, Mr. Anil Kumar Gulati, Adv., Mr. Satyavrat Sharma, Adv., Mr. Rahul Gaur, Adv.

For Respondent(s): Mrs. D. Bharathi Reddy, AOR

Appointments & TransfersNews

Recommendation for transfer of following Chief Justices


S. No. Name of the Judge High Court From High Court To
1. A.A. Kureshi [PHC: Gujarat] Tripura Rajasthan
2. Indrajit Mahanty [PHC: Orissa] Rajasthan Tripura
3. Mohammad Rafiq [PHC: Rajasthan] Madhya Pradesh Himachal Pradesh
4. Biswanath Somadder Meghalaya Sikkim
5. A.K. Goswami [PHC: Gauhati] Andhra Pradesh Chhattisgarh

Collegium Resolution

Supreme Court of India

Appointments & TransfersNews

Elevation of 8 Judges as Chief Justices of High Courts


S. No. Name of the Judge Present High Court High Court where appointed as Chief Justice
1. Rajesh Bindal [PHC: Punjab and Haryana High Court] Calcutta Allahabad
2. Ranjit V. More [PHC: Bombay] Meghalaya Meghalaya
3. Satish Chandra Sharma [PHC: Madhya Pradesh] Karnataka Telangana
4. Prakash Srivastava Madhya Pradesh Calcutta
5. R.V. Malimath [PHC: Karnataka Himachal Pradesh Madhya Pradesh
6. Ritu Raj Awasthi Allahabad Karnataka
7. Aravind Kumar Karnataka Gujarat
8. Prashant Kumar Mishra Chhattisgarh Andhra Pradesh

Collegium Resolution

Supreme Court of India

High Court Round UpLegal RoundUp

Here’s a short recap of what we covered under the High Court’s section on the SCC Online Blog for the month of August 2021. In case, you missed out on catching up with some interesting cases, then, you have clicked on the right post to be read.

Go ahead and check out the August updates of 2021!


Allahabad High Court


Murder

  • Brutal and Heinous Double Murder Case of Wife & Daughter || Criminal Conspiracy, generally hatched in secrecy [All HC’s critical ruling]

 High Court noted the fact that it was a brutal and heinous double murder case, in which a helpless mother, who blindly trusted upon the co-accused, Shamshad and living with him for the last 5 years and her little daughter had been flagitiously killed and their dead bodies had been hid by the co-accused Shamshad with the help of his brother-in-law in the floor of the room.

 Read more here: https://bit.ly/3mNE5hB

 Negotiable Instruments Act

  •  For offence of dishonour of cheques, what needs to be given priority – Compensatory aspect or Punitive aspect?

 Merely because the litigation has reached a revisional stage or that even beyond that stage, the nature and character of the offence would not change automatically and it would be wrong to hold that a revisional stage, the nature of offence punishable under Section 138 NI Act should be treated as if the same is falling under table-II of Section 320 IPC.

 Read more here: https://bit.ly/3t9hihu

 Writ of Habeas Corpus

  •  “Writ of habeas corpus is a festinum remedium”; All HC rejected issuance of writ at the behest of a husband to regain his wife as no prima facie case of unlawful detention is made out

 “…the exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful.”

Read more here: https://bit.ly/3BtEBoY

Paedophilia

  • “Little girls are worshipped in our country, but cases of pedophilia are increasing”: HC says it’s time to strictly stop this kind of crime

The victim/female small child experience sexual abuse once tend to be more vulnerable to abuse in adult life. Healing is slow and systematic. In such a situation, if the right decision is not taken from the Court at the right time, then the trust of a victim/common man will not be left in the judicial system. This is the time to strictly stop this kind of crime.

Read more here: https://bit.ly/3Dythd5

Bail Application

  • Minor girl raped and entire family was asked to convert their religion; Bail rejected

 “…considering the seriousness of the matter and minor daughter was raped and entire family was asked to convert their religion…”

Read more here: https://bit.ly/3gQ2IX5


 Bombay High Court


Opportunity of Hearing

  • Denial of urgent hearing by DRT: Court says opportunity of hearing is integral part of constitutional philosophy well embedded in Arts. 14 and 21

“…opportunity of hearing is an integral part of our constitutional philosophy and it is well embedded in Articles 14 and 21 of the Constitution of India.”

 Read more here: https://bit.ly/38pBOk7

 Right to Education Act

  • Can minority educational institution refuse admission to autistic child contravening statutory direction given before grant of minority status? Court answers

The disobedience of the directives issued by the Education Department cannot be condoned by obtaining certificate as minority education institution subsequently.

 Read more here: https://bit.ly/2V2jT01

Principle of Double Jeopardy

  • Do principles laid under S. 300 CrPC and principle of double jeopardy under Art. 20(2) of Constitution differ? Explained

 Bombay High Court while setting aside an impugned order explained the slight difference between principles laid down under Section 300 of the Criminal Procedure Code, 1973 from the principle of double jeopardy under Article 20 (2) of the Constitution of India.

 Read more here: https://bit.ly/3mJGzxv

 Registration Act

  •  Does a Registering Officer has right to decide whether person presenting document for registration has marketable title or not? Court answers

 It is well settled that when a property is sold by public auction, in pursuance of an order of the Court and the sale is confirmed by the Court in favour of the purchaser, the said becomes absolute and the title vests in the purchaser. A sale certificate is issued to the purchaser only when the sale becomes absolute.

Read more here: https://bit.ly/3sZ1yxs

Domestic Violence Act

  • Concept of ‘continuing offences’ & limitation under Domestic Violence Act: Explained

“…concept of continuing cause of action and continuing offence needs to be appreciated from the point of view of the aggrieved person i.e. wife.”

 Read more here: https://bit.ly/3gQ7eF1

Income Tax Act

  • When is the intimation for setting off of refunds against tax remaining payable under S. 245, Income Tax Act, be given? Bom HC answers

“…intimation is to be given prior to the officer sets off the amount payable against the amount to be refunded. It can be neither simultaneous nor subsequent.”

 Read more here: https://bit.ly/2WD0N16

Fair Reporting

  • What is legitimate scope of a court reporter? When does a court reporter crosses line? Bom HC lays down

“…with modern communications technology, the nature of reporting — often from the well of the Court itself — has radically changed: we often now see updates going out every few minutes on digital media.”

“…a fleeting impression by a journalist of the value of evidence is entirely beyond his or her legitimate scope. Such a journalistic pronouncement becomes unacceptable when it is conveyed to the reading audience or public as something already decided, or about which no other view is possible.”

Read more here: https://bit.ly/3mM8yMS

 POCSO Act

  •  If a minor is made to succumb to penetrative sexual assault by various customers and is induced into prostitution, will person responsible for the same be punishable under POCSO Act? HC explains

Even according to the victim, she was lodged in the house of the appellants for a period of about a month and was subjected to sex twice a day.

Read more here: https://bit.ly/3sY9S0o

Outraging Modesty of Woman

  • Bom HC on ‘Outraging Modesty of Woman’ | Would throwing love chit on person of a married woman amount to outraging her modesty? Read on

 The modesty of a woman is her most precious jewel and there cannot be a straitjacket formula to ascertain whether modesty is outraged.

Read more here: https://bit.ly/3t1krj7

Dishonour of Cheque

  • Can mere dishonour of cheque amount to abetment of suicide? Bom HC decides

 Mere dishonour of cheque and refusal to pay remaining balance amount involved in the transaction does not amount to abetment to commit suicide.

 Read more here: https://bit.ly/3mThWP7

Domestic Violence Act

  • Husband marrying second time after grant of divorce. Is it ‘domestic violence’ within DV Act? Decrypted

 Section 3 of the D.V. Act defines ‘domestic violence’ in an elaborate manner and it refers to physical abuse, sexual abuse, verbal abuse, emotional abuse and economic abuse. This is in the context of a domestic relation shared between the aggrieved person and respondent.

 Read more here: https://bit.ly/3yw4MJU

Parents and Senior Citizens Act

  • Under the Parents and Senior Citizens Act, is it necessary to find out whether property belongs to parent exclusively or is a shared household in which daughter-in-law has rights? Bom HC deciphers

 The Division Bench of Ujjal Bhuyan and Madhav J. Jamdar, JJ., while explaining the provisions under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 also elaborated upon the concept of shared household and remanded the matter back to the Tribunal for Maintenance and Welfare of Parents and Senior Citizens.

Read more here: https://bit.ly/3kGqBkV

Principle of Equal Pay for Equal Work

  •  Principle of “Equal Pay for Equal Work” does not operate in vacuum, it is not a fundamental right but a Constitutional goal depending on several factors

The principle “Equal Pay For Equal Work” is not a fundamental right but a constitutional goal and entitlement to parity in Pay Scale would depend on several factors such as educational qualifications, nature of the job, duties to be performed, responsibilities to be discharged and experience.

 Read more here: https://bit.ly/2WG50B2

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

  •  ‘People would be starved of liberty of thought if…’: Know why Bom HC partly stayed IT Rules, 2021

People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles.

 Read more here: https://bit.ly/3gNwN9V

Contempt Case

  •  ‘Judiciary’s dignity cannot be tarnished by irresponsible content’: Bom HC closes contempt case against person uploading contumacious content against Goa District Judiciary on YouTube & WhatsApp

 “Court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to punish for its contempt.”

 Read more here: https://bit.ly/3kHnJEE

Defamation

  •  Gangubai Kathiawadi | Can an adoptive son file for defamation of deceased mother? Bom HC decodes

 “The law on the principle of Torts that an action dies with the person, in a defamation proceedings is required to be appreciated.”

 Read more here: https://bit.ly/3BuKmTk

 Divorce

  •  No decision on divorce petition, yet wife creates matrimonial profile expressing will for second marriage. Can this be a ground for divorce?

“…conduct of the respondent to perform the second marriage and not to lead the life with the appellant is writ large from the fact that she did not apply for restitution of conjugal rights.”

 Read more here: https://bit.ly/2YhZ6qF


Calcutta High Court


 Bengal Post Poll Violence

  • CBI probe ordered in the investigation after NHRC report; Court also constitutes SIT of all IPS officers to install faith of the people in rule of law

 During the discussion of the matter the Court clarified major issues in the arguments the first being the, “duration of the post poll violence”, “election commission’s duty on law and order” and the “bias” of the three-member committee as pointed out by the counsel for the respondents.

Read more here: https://bit.ly/3mNBSTj

Trademark Infringement

  • Cal HC restrains use of registered mark prominently used in infringer’s otherwise different packaging

 In the instant application for infringement and passing off of the petitioners’ registered trademark “GANESH”, it was directed against the respondents who were carrying on a partnership firm in the name of “GANESH DEPARTMENT STORES”.

Read more here: https://bit.ly/3jxLv6y


Chhattisgarh High Court


Human Rights Commission

  •  Can Human Rights Commission pass an order directing payment of compensation? HC answers in light of instant facts

The petitioner in the instant petition challenges the legality and validity of the order dated 26.10.2009 passed by respondent 3 who have directed the petitioner to make a payment of Rs. 10,000/on account of professional negligence alleged to be committed by him.

Read more here: https://bit.ly/38rINsX

Unnatural Sex

  • “Sexual intercourse by husband would not constitute an offence of rape even if it was by force or against her wish”; Can a wife initiate proceedings against her husband for unnatural sex under S. 377 IPC?

 “…charge framed under Section 377 of the IPC cannot be said to be erroneous at the stage of framing of charge, especially, in terms of Section 377 of the IPC where dominant intention of the offender is to derive unnatural sexual satisfaction by repeatedly inserting any object in the sex organ of the victim and consequently deriving sexual pleasure, such act would constitute as carnal intercourse against the order of nature and such act would attract the ingredient of offence under Section 377 of the IPC.”

Read more here: https://bit.ly/3yxKaRp

 Property

  • Can writ court decide whether Nazul property (lease hold lands) be dedicated for waqf? HC observes

 “…the writ Courts ordinarily do not decide abstract principles of law. If a proper lis is brought before the Court between the contesting parties on the given set of facts, the competent jurisdictional Court will decide the legal position.”

Read more here: https://bit.ly/2V0ymte


Delhi High Court


 Negotiable Instruments Act

  •  Does a decree automatically follows when a Metropolitan Magistrate take cognizance of an offence under S. 138 NI Act? Read on

 Read more here: https://bit.ly/3gQqoe5

 Income tax Act

  • Issuance of prior show cause notice and draft assessment order under S. 144B (7) of Income Tax Act: Is it a mandatory condition before issuing final assessment order? HC answers

 High Court opined that Section 144B (7) of the Income Tax Act, 1961 mandatorily provides for issuance of a prior show cause notice and draft assessment order before issuing the final assessment order.

 Read more here: https://bit.ly/38trTu2

Trade Marks Act

  •  Whether S. 124 of Trade Marks Act provide for stay of action against passing off? Read on

 There is no such occasion arising in a suit for passing off. It is only when clever drafting discloses the intent of the plaintiff to get over the statutory bar, being aware of the rectification proceedings commenced against the trade mark that it claims is exclusively it’s own.

 Read more here: https://bit.ly/3DxqMru

  •  Determination of territorial jurisdiction of Court in matters relating to trademark infringement: HC discusses

 Considering the nature of business, the prior relationship of the parties, and the business format of establishing franchisees, it cannot be assumed that the Plaintiffs’ allegations are mis-founded or could be construed as false, in absence of any documentary proof.

 Read more here: https://bit.ly/3BrQ74f

  •  Del HC grants interim injunction in favour of DPS Society against Infringement of trademark and crest logo by Delhi Public International School

 “Besides, considering that parties are in the field of education, deliberate adoption by the Defendants of impugned trade marks and logo that are deceptively similar and/or identical to the Plaintiff’s registered trade marks/names and logos can cause confusion in the minds of the parents, prospective students and staff desirous of securing admission or availing services, seeing the advertisements, promotional material, admission forms, boards/ hoardings, etc.”

 Read more here: https://bit.ly/3gOhAFy

Anti-Profiteering Case

  •  Proceedings against Subway Systems (India) dropped in anti-profiteering case against franchisee

 Bench opined that it is settled law that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India, the applicant should ordinarily be one who has a personal or individual right in the subject matter of the application.

 Read more here: https://bit.ly/3t3KR3V

 Employer’s Negligence

  •  Due to employer’s negligence, an employee suffered 100% disability | Read how Del HC emphasises on principle of res ipsa loquitur and strict liability to pronounce decision

 Anup Jairam Bhambhani, J., emphasizing the principle of res ipsa loquitur and placing a detailed explanation on the same granted just and fair compensation to a person who was 100% disabled due to an accident at his place of work.

 Read more here: https://bit.ly/38qs5ds

Bail

  •  Bail granted to a young mother accused in murder of her tutor with whom she had illicit relationship

 Rajnish Bhatnagar, J. granted bail to a young mother of two minor children, who was booked in connection with the murder of her tutor with whom she had an illicit relationship.

Read more here: https://bit.ly/3yy8CCm

  •  Wife commits suicide after speaking to husband on mobile phone, husband suspicioned to have instigated wife| Read whether Del HC grants bail to husband

 Mukta Gupta, J., decided a bail matter wherein the husband suspicioned to have instigated the wife to commit suicide.

 Read more here: https://bit.ly/3ysAXtz

 Arbitration

  •  Can a party unilaterally appoint an Arbitrator of their choice? Read on

 Suresh Kumar Kait, J., reiterated that no party could be permitted to unilaterally appoint an Arbitrator, as the same would defeat the purpose of unbiased adjudication of the dispute between the parties.

 Read more here: https://bit.ly/2V31OyN

  • Whether once a bench of SC has doubted correctness of an earlier bench of co-equal strength, and referred the issue to a larger bench, Courts lower in hierarchy should continue to follow earlier decision – Is it debatable?

The question of whether, once a bench of the Supreme Court has doubted the correctness of an earlier bench of co-equal strength, and referred the issue to a larger bench, Courts lower in hierarchy should continue to follow the earlier decision, appears to be debatable.

 Read more here: https://bit.ly/3zBGpfk

 Domestic Violence Act

  • Provisions of DV Act cannot be used as a ploy by son, to either claim a right in his father’s property or continue to retain possession of father’s property, on strength of his wife’s right of residence: Del HC

 “…all cases of family disputes cannot be characterised as cases under the DV Act.”

 Read more here: https://bit.ly/3kFg9u5

 Abetment of Suicide

  •  Issuing a legal notice and filing a complaint case against someone, would that amount to abetment of suicide? Del HC deciphers

 Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing.

 Read more here: https://bit.ly/2Yi46vr

Bank Guarantee

  • Bank Guarantee: Can these be encashed during their validity period? Read Del HC’s opinion on furnishing of bank guarantees

 There is no judicial finding that a Bank Guarantee cannot be encashed during its validity.

 Read more here: https://bit.ly/3zwV9Ms


Gauhati High Court


 

Rape

  •  Both victim and accused are State’s future assets”; HC grants bail to IIT student accused of raping his junior

 “Both the informant/victim girl and the accused were the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who were young in the age group of 19 to 21 years only, the continuation of detention of the accused was not necessary.”

 Read more here: https://bit.ly/3kArsnk

Violence against Doctors

  •  Mere installation of CCTV cameras in hospitals is not enough; HC directs to connect Hospital cameras to the nearest Police Station

 The Division Bench comprising of Sudhanshu Dhulia, CJ, and Manash Ranjan Pathak, J., directed to connect CCTV cameras of Hospitals to the nearest Police Station to put a check on increasing instances of violence against medical practitioners amid Covid-19.

Read more here: https://bit.ly/3ywQWXJ

COVID Vaccine

  •  Opportunity to be heard to be given to the Air Force officer who refused to take the Covid vaccine; Court directs IAF to reconsider the case afresh

 Read more here: https://bit.ly/3kG29jN

 Property

  •  Appellate court’s reasoning of non-examination of scribe of Will wrong; Court allows appeal calling it serious error of law

 A.P. Thaker, J., allowed a petition which was filed aggrieved and feeling dissatisfied with the judgment and decree of the Appellate Court in the connection for the partition alleging that the properties were of the joint family properties and possession of 1/2 share in the suit property.

Read more here: https://bit.ly/3t3NzX9

 Detention

  •  State Authorities cannot be permitted to resort to stringent provisions like detention under PASA; Court allows petition

 When the State on the whole and the economy, in particular, is trying to regain the momentum post COVID, such hanging sword situation can not be permitted to continue.

Read more here: https://bit.ly/3h7PSUv

  • Distinction between ‘the law and order’ and ‘the public order’ needs to be kept in mind; Court decides in matter of detention under Gujarat Land Grabbing (Prohibition) Act, 2020

 If any citizen faces action from the State and if he resorts to the legal remedy available to him, and if the citizen is protected, any attempt to obstruct it, may be viewed very seriously and even the option of initiating proceedings under the Contempt of Court Act, can also be explored. However, the matter here had not reached that far.

Read more here: https://bit.ly/3zzYES6


Himachal Pradesh High Court


 

Bail

  •  “Bail petition silent about criminal history”; Bail denied due to lack of justification to overcome the rigors of S. 37 of the NDPS Act

 Anoop Chitkara, J., dismissed the petition and rejected bail to the accused as he was unable to justify and overcome the rigors under Section 37 NDPS Act.

Read more here: https://bit.ly/2WFBzzi

Sexual Offence

  •  Victim of sexual offence cannot have any locus standi to approach Court for quashing FIR registered for the sexual assault alleged

 Read more here: https://bit.ly/3zEyhuA


Jammu and Kashmir and Ladakh High Court


First Information Report

  •  Can FIR containing allegations which set police in motion, be quashed at threshold stage? HC answers

 “It is not proper to scuttle away the investigation at its thresh-hold stage, if FIR discloses the commission of offences; High Court should not interfere with the investigation which would amount to stalling the investigation and jurisdiction of statutory authorities to exercise powers in accordance with the provisions of criminal Code.”

 Read more here: https://bit.ly/3tgmXCx

 Triple Talaq

  •  Can Shayara Bano’s judgment be invoked retrospectively to declare triple talaq pronounced before Shayara Bano’s case null and void? HC answers

 Sanjeev Kumar, J., held that the judgment of Shayara Bano v. Union of India,(2017) 9 SCC 1has retrospective application and can be invoked to declare triple talaq pronounced before Shayara Bano’s judgment null and void.

 Read more here: https://bit.ly/3yB079z


Karnataka High Court


Animal Cruelty

  •  Kar HC takes up suo motu cognizance over incident of Monkey Deaths; Art. 21 protects ‘animal life’ which is necessary for human life

 The Court took up suo moto cognizance of large number of monkey deaths on the roadside in Belur Taluk of Hassan District on Wednesday night after 15 alive monkeys who were put in a large bag were found as per news reports published in the leading newspapers – Deccan Herald, Indian Express, Times of India, Prajavani, etc.

Read more here: https://bit.ly/2WE0mUb

 Amazon – Flipkart

  •  Kar HC dismisses prayer that sought to restrain CCI from investigating into deep discounting practices and biased treatment of select sellers

 Read more here: https://bit.ly/2WE0umD

 Judicial Order

  •  Can Court through a judicial order confer on the ‘Administrator’ a power to renew Fixed Deposits of investors? What other powers can be conferred? HC elaborates

 “There is no one who can effectively deal with the investors. Therefore, the question is whether a retired Senior Bank Official can be appointed as an Administrator who will ensure that the day-to-day activities of the Credit Co-operative will continue.”

 Read more here: https://bit.ly/2WFcMei

 Supplementary Charge Sheet

  •  “Supplementary charge sheet is only an additional material collected against the accused persons”; S. 167(2) CrPC not applicable on supplementary charge sheets filed

 Section 167(2) of Cr.P.C., is applicable only when charge sheet is not laid down and it starts operative when accused is arrested during the course of investigation, but if charge sheet is filed against particular accused and supplementary charge sheet is submitted against other accused or for additional evidence, the provisions of Section 167(2) of Cr.P.C., cannot be applicable.

 Read more here: https://bit.ly/3yyXo0f


Kerala High Court


Arbitration

  •  Syllogistic scope of Ss. 11(5) and 11(6) of the Arbitration Act, 1996; HC unclouds the line

 Devan Ramachandran, J., held that parties to arbitration cannot nominate the arbitrator even if the Arbitration Agreement provides so.

Read more here: https://bit.ly/3zuGVeS 

Marital Rape

  • Is marital rape a form of cruelty? Can it be a ground for divorce? HC examines

Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.

Read more here: https://bit.ly/3jxrH39

Rape

  •  Penetration between thighs of the victim held together; will it fall within the ambit of Rape? HC answers

 “We cannot assume that, she would be able to narrate the specific details of repeated acts merely from her imagination. Moreover, the language and expressions used by her for describing the sexual acts and the sexual organs clearly convey her unfamiliarity with the sexual acts…We cannot expect that an ordinary school going girl from a village area would have such capacity to imagine stories of that nature for falsely implicating the appellant.”

 Read more here: https://bit.ly/3DDchlQ

Sentence

  •  Ker HC temporarily suspends sentence of imprisonment to allow the applicant to perform religious rites and rituals of his deceased mother

 The Division Bench comprising of K. Vinod Chandran and Ziyad Rahman A.A., JJ., temporarily suspended the sentence of the applicant to allow him to perform religious rites and rituals of his deceased mother.

Read more here: https://bit.ly/3gL18px

 Maternity Leave

  •  Such orders undermine confidence and morale of women; HC directs Kerala to reinstate the woman terminated for unauthorised absence on availing maternity leave

 “Life as a new mother is like being on a roller-coaster and being a working mother is tougher. The minutiae of motherhood can never be properly contemplated and it involves navigation through myriad daily issues, which ultimately determine the health and future of the child.”

 Read more here: https://bit.ly/2Ya0j2Z

 CGST

  •  CGST registration; HC dismisses petition challenging cancellation registration on observing undue delay and carelessness on part of petitioner

 “The petitioner was sleeping over its right after cancellation of its registration. There is undue delay even in filing an application for revocation of registration so also even in approaching this Court.”

 Read more here: https://bit.ly/3mP2pj7

Birth/Death Certificate

  •  Mandatory discloser of Father’s name in Birth/Death Certificate is violative of Fundamental Right; HC directs State to provide separate forms for Single Mothers

 “Requiring the petitioner to leave the column regarding the details of father as blank for the issuance of a certificate of birth or certificate of death necessarily affects the right of dignity of the mother as well as the child.”

Mandatory Requirement for Disclosing Father’s name in Birth/Death Certificate

 Read more here: https://bit.ly/2WCSr9t

 Socially and Educationally Backward Classes

  •  State government has no power to specify any class of persons as socially and educationally backward; HC stays order specifying Nadars (Christian) as socially and educationally backward

 B. Suresh Kumar, J., held that the State Government has no power to specify any class of persons as socially and educationally backward for the purposes of the Constitution since only the President is entitled to specify the socially and educationally backward classes in relation to a State after due consultation with the Commission set up under Article 338-B of the Constitution.

Read more here: https://bit.ly/3gQsHOa


 Madras High Court


Right to be Forgotten

  •  Right to be Forgotten | Madras HC decides whether redacting names of acquitted persons from court record is possible

 The peculiarity of seeking redaction of the name of accused persons who have been acquitted, has essentially gained significance due to the development of science and technology that has virtually brought everything under the sky to the fingertips of any person who may have access to the internet. The search engines provide information about any person and whatever information is available in the “Cloud” can be accessed by anyone.

Read more here: https://bit.ly/3mMJPrW

Reservation

  •  Whether 10 % reservation of Economically Weaker Section can be provided in All India Quota medical seats without SC’s approval? Detailed Record

If a pool of seats is available to candidates from all over the country, irrespective of an individual’s place of residence, the State-wise reservation, which is based on demography of the State, cannot hold good for the entire country as the mix of socially backward classes would differ from region to region even within a State.

 Read more here: https://bit.ly/3DyYAEK

 Astrology v. Science

  •  Can Courts direct citizens to stop believing in astrology? Read Madras HC’s opinion

“…there are some matters in which exact answers may not be available as the only known intelligent life form in the universe endeavours to grapple with the unknown.”

 Read more here: https://bit.ly/38rIVsj

 Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021

  •  Judiciary, Legislature and Morality-A jamboree for the online gaming adherents | Holds the statute invalid in ‘every pore’ that ‘cries out’ to be so

” There appears to be a little doubt that both rummy and poker are games of skill as they involve considerable memory, working out of percentages, the ability to follow the cards on the table and constantly adjust to the changing possibilities of the unseen cards. Poker may not have been recognised in any previous judgment in this country to be a game of skill, but the evidence in such regard as apparent from the American case even convinced the Law Commission to accept the poker as a game of skill in its 276th Report”.

 Read more here: https://bit.ly/38sZrZd

 Case Flow Management

  •  Dictum in Salem Advocate Bar Assn. continues to guide courts all over the country; Court finds no reason to formulate new rules to regulate case flow management in the State

 The Division Bench of Sanjib Banerjee, CJ and P.D. Audikesavalu, J., took up a petition which involved issuance of a Writ of Mandamus directing the respondent Madras High Court to take appropriate steps for framing Rules for Case flow management system and for monitoring of all cases by Courts in Tamil Nadu in true spirit and letter incorporating all directions of Supreme Court at the earliest.

Read more here: https://bit.ly/38uIFco


Madhya Pradesh High Court


Bail

  •  In India, a girl would not indulge in carnal activities with boys just for enjoyment, unless the same is backed by some future promise; Court denies bail in allegation of rape

 “…a boy who is entering into a physical relationship with a lass must realize that his actions have consequences and should be ready to face the same as it is the girl who is always at the receiving end because it is she who runs the risk of being pregnant and also her ignominy in the society, if her relationship is disclosed. You just cannot plead consent on the part of the prosecutrix and laugh all the way to your home.”

 Read more here: https://bit.ly/3BtNcIf

  •  Possession of cough syrup or medicine containing Codeine Phosphate without valid documents falls under S. 37 of the NDPS Act; Court rejects bail application

 “…if anyone was found in possession of cough syrup or medicine containing Codeine Phosphate without valid documents, then the case will come under the stringent provisions of the NDPS Act.”

 Read more here: https://bit.ly/3mR0afo

 Prevention of Corruption Act

  •  When can the issue relating to absence of sanction or the order of sanction being a nullity, be raised? Court discusses

 The Division Bench of Prakash Shrivastava and Arun Kumar Sharma, JJ., dismissed a petition in which the issue was deciding whether the order granting sanction can be challenged at the particular stage or the objection in this regard was required to be raised by the petitioner during the trial and the issue was to be decided by the trial Court on the basis of the evidence.

 Read more here: https://bit.ly/38wI0a6

 Transgender Cards

  •  M.P. State Legal Service Authority to provide assistance to transgenders in getting their Identity Cards/Transgender Cards; State directed to ensure other benefits

 The Division Bench of Mohammad Rafiq, CJ and Vijay Kumar Shukla, J., decided in the matter of a petition which was filed n in the form of Public Interest Litigation by a Transgender, who is Social Worker and Paralegal Volunteer at Indore, for the welfare of the people of Transgender Community.

 Read more here: https://bit.ly/3DA64XT

 Admit Card

  •  Entry time of admit card of utmost importance; Court dismisses petition praying reconduction of  IPMAT

 The Division Bench of Sujoy Paul and Anil Verma, JJ., dismissed a petition which was filed by 12th grade students and aspirants of taking admission in Integrated Programme for Management (IPMAT) praying to reconduct the examination for students who could not reach the centre due to heavy rains and further restraining respondents to declare the results.

 Read more here: https://bit.ly/38wvCHo

Right to Cross-Examine

  •  Right to cross-examine a witness cannot be curtailed, Court holds trial court should be patient and tolerant in their approach towards the Trial Court lawyers

It is trite that cross-examination is the only tool available to a defence lawyer to test the veracity of a prosecution witness, it is the only way out to an accused to clear his name from the alleged offence hence his right to cross examine a witness cannot be curtailed in such a cavalier manner.

 Read more here: https://bit.ly/2WI47Ir


Manipur High Court


  • Comply with WHO guidelines, ensure water supply in the containment zones; Court issues directions

 The Division Bench of KH. Nobin Singh and A. Bimol Singh, JJ., issued certain directions in response to a Public Interest Litigation which was filed by a resident of Chalou Maning Leikai, contending that after the said village having been declared as a Containment Zone, no water is available for the reason that the Water Tankers are reluctant to come to the area for supply of water.

Read more here: https://bit.ly/3jwaNBT


Meghalaya High Court


 

COVID-19

  •  Primary reasons for vaccine hesitancy in the State not being addressed by the Police; Court directs to identify and book persons for spreading false rumours about vaccines

 Read more here: https://bit.ly/3Bu0J2x


Orissa High Court


Bail

  •  “Suicidal ideation and behaviors in human beings are complex and multifaceted”; What is the scope of bail in cases involving S. 306 IPC? HC examines

 “There is no answer as to why suicides occur because it is impossible to ever fully comprehend or analyze what goes on inside a person’s mind. Suicidal ideation and behaviors in human beings are complex and multifaceted.”

 Read more here: https://bit.ly/38vMH4c

 Illegal Prawn Enclosures

  •  Ori HC took stock of issue of illegal prawn enclosures (‘gheries’) around Indian wetland of international importance, the eco-sensitive Chilika Lake; Laid directions

 “…each of the demolition actions must be videographed to show that not only have they been effectively demolished but all the equipments used have actually been seized and taken away far from the site and detained in the custody of the authority concerned.”

Read more here: https://bit.ly/3ywIckj


Patna High Court


  • 5-Judge Bench of Patna HC directs to demolish entire building of newly erected Waqf Bhawan constructed in close proximity of Centenary Building of the HC; Justice Ahsanuddin Amanullah dissents

“The structure has been constructed in utter and brazen violation of provisions of law across statutes, starting from Section 32 of the Central Act, through the various provisions of the Municipal Act, and finally Bye-law 21, as discussed above, and must be held to be illegal and non-est from the word go.”

Read more here: https://bit.ly/3h9gKn5


Punjab and Haryana High Court


 Property

  •  Apparent case of greediness; HC imposes Rs 1 lakh cost on the son for attempting to oust his old-aged mother and usurp her property

 Calling it unfortunate, Arvind Singh Sangwan, J., dismissed the petition filed by a man who was trying to oust his mother from her property to usurp the same. Additionally, the Bench imposed a cost of 1 lakh Rupees on the petitioner which was directed to be paid to the respondent mother.

Read more here: https://bit.ly/3BuqiRb 

Promotion

  •  Can an employee who has foregone his promotion claim seniority over his juniors promoted earlier than him? HC answers

 Harsimran Singh Sethi, J., held that length of service in the cadre in which the seniority is being prepared is the only relevant factor to be taken into consideration while fixing the seniority.

Read more here: https://bit.ly/3jttGpb

Vacancy

  • Age relaxation cannot be claimed on the basis of CM’ tweet; HC rejects petition seeking relaxation in maximum age for Police Sub Inspectors

 “There is no legal right with the petitioners to claim that all the vacancies should have been advertised prior to 2021 or even to allege that the inaction of the Department in this regard could be termed as violation of any right.”

 Read more here: https://bit.ly/3t1x1z7

 Live-in Relationship

  •  “Unholy Alliance”; HC denies protection to married woman who was residing in live-in with another man

Calling it “unholy alliance”, Sant Parkash, J., denied protection to a married woman who was residing in live-in with another man.

Read more here: https://bit.ly/2V1VyY4

 Divorce by Mutual Consent

  • Amandeep Singh’s case has not been appreciated in its real sense by the Family Court; HC allows waiving off mandatory 6 months period for divorce

 Observing that the couple had settled the matter and were mature to the extent that first petitioner was 34 years old and petitioner 2 was 35 years of age and had been blessed with 3 children; moreover, it was not disputed that the husband was also staying abroad for the last more than two years and they had even settled regarding the children; the Bench opined that in such circumstances, further waiting period would only prolong the proceedings and it was a fit case to exercise the jurisdiction of the Court in waiving off the mandatory period of six months.

Read more here: https://bit.ly/3BvdQR7

 Anticipatory Bail

  •  Evidences point towards complicity of the accused; HC rejects plea for anticipatory bail

 “A free and fair investigation is the backbone of every criminal trial. The criminal trial is a discovery in pursuit of the truth. Without a thorough free and fair investigation, the trial becomes a futile exercise.”

 Read more here: https://bit.ly/2WD0Qtx


Rajasthan High Court


Live-in Relationship

  •  “Live-in relationship cannot be at the cost of social fabric of this country”; Police protection rejected to a live-in couple

 Satish Kumar Sharma J. dismissed the petition and rejected police protection to a couple.

Read more here: https://bit.ly/3DBdASj

 Transfer Petition

  •  Judgments cited by the applicant cannot be made basis as a precedent to infer that the balance of convenience always lies in favour of the wife; Transfer petition allowed

 “In the present case, the place of litigation should not be made an issue by the non-applicant because the applicant-wife is a lady and having no source of income for maintaining herself and her daughter.”

Read more here: https://bit.ly/3mKOUB4

 Investment by State

  •  “The investment made by State for construction of Dams is made redundant if natural flow of water is impeded in any manner”; directs State to take necessary steps

A Division Bench of Indrajit Mahanty, CJ and Vinit Kumar Mathur, J., direct State to inform them regarding steps taken for restoring the land which has been dug-up during the course of operation of the mines.

Read more here: https://bit.ly/2WzfORj

 Missing Person

  •  Addressed plight of kith and kin of missing person; Instructions/guidelines to be adopted by the police officials in the State of Rajasthan laid down

 A Division Bench of Sandeep Mehta and Manoj Kumar, JJ., disposed of the petition, observing that the missing person Shri Prem Ratan expired, as a result of being hit by a locomotive on the railway tracks near Sadulpur/Rajgarh.

Read more here: https://bit.ly/3t56P6D

Study Leave

  •  Study leave can be granted if the course of study is in the interest of the working of government or to service which govt. servant belongs; Court allows petition

 Ashok Kumar Gaur, J., allowed a writ petition which was filed seeking a direction to grant them study leave to undergo their Post-Graduate Medical Course on the seats allotted to them in NEET PG Counselling, 2020.

 Read more here: https://bit.ly/3gPfPrD

 Ex-Gratia Amount

  •  In circumstances of death while on duty, can ex-gratia be allotted as per both unamended and amended rules? Court answers

 “…police personnel who dies while on duty or dies due to act of violence by terrorists or dacoits or criminals or anti-social elements or dies in bomb blasts in public places or in course of conformation with the mob or crowd during agitation, riot or disturbance or due to the circumstances then the benefit of ex gratia would be released.”

 Read more here: https://bit.ly/3kKMDD4


Sikkim High Court


Code of Civil Procedure

  •  Application allowed under Or. VI R. 17 CPC, 1908, seeking amendment to the plaint erroneous; Court explains

 Jitendra Kumar Maheshwari, CJ., allowed a petition which was filed aggrieved by the order allowing the application filed under Order VI Rule 17 of the Code of Civil Procedure, 1908, seeking amendment to the plaint.

Read more here: https://bit.ly/2YgUXmH 

National Food Security Act, 2013

  • Court directs State to examine grievances; ensuring proper implementation of NFSA, 2013

 The Division Bench of Jitendra Kumar Maheshwari and Bhaskar Raj Pradhan, JJ., heard a petition which was filed seeking the implementation of the National Food Security Act, 2013 (‘Act of 2013’) read with Sikkim Foods Security Rules, 2014 (‘Rules of 2014’) for an order directing the State respondents to ensure proper quantity and items of food be provided to the beneficiaries falling under the general and special categories and also falling under the categories mentioned in section 6 of the Amendment Rules, 2017; to duly conduct social audit in order to monitor and evaluate the planning and implementation of the Amendment Rules, 2017 and to constitute an independent committee to investigate, report and find out solution for effective implementation of the Act of 2013.

Read more here: https://bit.ly/38v5TPm

 Sole Testimony

  •  Sole testimony of a deaf and dumb woman, unable to answer questions not reliable enough to convict rape accused; Court dismisses petition

 “…the prosecutrix was a deaf and dumb woman, aged about 50 years, and she had stated about commission of rape with her by the accused.”

 Read more here: https://bit.ly/3BsJYF0


Telangana High Court


Live-in Partner | Bail

  •  Mother allows her live-in partner to sexually assault minor daughter continuously: Bail application rejected

 Sri Devi, J., rejected a bail application on noting the fact that a minor girl was continuously sexually assaulted by her mother’s live-in partner resulting in her getting pregnant.

 Read more here: https://bit.ly/3BxwWG7


Tripura High Court


 

Post-retiral benefits

  •  Court rejects post-retiral benefits of pension and gratuity on false claim of being a reserved category candidate; however, salary already paid not a subject of recovery

 Akil Kureshi, CJ., dismissed a writ petition which was filed aggrieved about non-payment of gratuity and pension after retirement

 Read more here: https://bit.ly/2V7NC7Q

Disciplinary Authority

  • Mere honesty and admission of charge are not the grounds for tampering with the order passed by disciplinary authority; Court dismisses appeal

 “…conduct of the petitioner cannot be seen as a momentary loss of discretion on account of some unacceptable but otherwise explainable reason. The petitioner has tried to put it as a one of lapse on his part as something which is conventional though no longer legal.”

Read more here: https://bit.ly/2YgfnfF


Uttaranchal High Court


Right to Promotion

  •  Right to promotion is not a vested right, however, right to be considered for promotion is a FR; Court issues directions to the State

 The Division Bench of Manoj Kumar Tiwari and Alok Kumar Verma, JJ., heard and disposed of a petition which was filed seeking a direction to the State Government to hold promotion exercise for filling the post of Chief Engineer.

 Read more here: https://bit.ly/3mPGd8p

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/