Case BriefsHigh Courts

Bombay High Court: The Division Bench of Z.A. Haq and Amit B. Borkar, JJ., while addressing the matter, observed that:

In the absence of a specific penal provision creating vicarious liability, an administrator of a WhatsApp group cannot be held liable for objectionable content posted by a member of a group.

Common intention cannot be established in the case of WhatsApp service user merely acting as a group administrator.

By the present application under Section 482 of the Code of Criminal Procedure, the applicant laid challenge to charge-sheet filed in the Court of Judicial Magistrate in pursuance of FIR registered with non-applicant 1 for offences punishable under Sections 354-A(1)(iv), 509 and 107 of the Penal Code, 1860 and Section 67 of the Information Technology Act, 2000.

As per the FIR, applicant was an administrator of a WhatsApp group, that accused 1 used filthy language against non-applicant 2 on a WhatsApp group of which applicant was an administrator, that despite accused 1 using filthy language against the non-applicant 2, applicant had not taken any action against accused 1.

Further, it was alleged that the applicant being the administrator had not removed nor deleted accused 1 from the WhatsApp Group.

In view of the above, non-applicant 2 lodged the FIR against the applicant and accused 1.

Hence, the applicant has, therefore, filed a present application challenging filing of charge-sheet and continuation of proceedings against the applicant.

Crux of the Issue

Whether an administrator of a WhatsApp group can be held criminally liable for the objectionable post of its member for committing offences punishable under Sections 354-A(i)(iv), 509 and 107 of the Penal Code, 1860 and Section 67 of the Information Technology Act, 2000?

Powers of the WhatsApp Group Administrator:

A group administrator has limited power of removing a member of the group or adding other members of the group. Once the group is created, the functioning of the administrator and that of the members is at par with each other, except for the power of adding or deleting members to the group.

The administrator does not have the power to regulate, moderate or censor the content before it is posted on the group. But, if a member of the WhatsApp group posts any content, which is actionable under law, such person can be held liable under relevant provisions of law.

Further, it was expressed that, a group administrator cannot be held vicariously liable for an act of a member of the group, who posts objectionable content, unless it is shown that there was a common intention or pre-arranged plan acting in concert pursuant to such plan by such member of a Whatsapp group and the administrator.

In the FIR it was stated that sexually coloured remarks were made by accused 1 and applicant being administrator of the WhatsApp group had not taken action of deleting the accused 1 from the group, nor had sought an apology from accused 1.

Decision

In Court’s opinion, non-removal of a member by the administrator of a WhatsApp group or failure to seek apology from a member, who had posted the objectionable remark, would not amount to making sexually coloured remarks by the administrator.

Court found that essential ingredients of Section 107 of IPC that the applicant had instigated or intentionally aided by his act or illegal omission to accused 1 to make sexually coloured remarks against non-applicant 2 were conspicuously absent. Hence the said Section will not be attracted in the present case.

Section 509 of the IPC criminalizes word, gesture, or act ‘intended’ to insult the modesty of a woman. In order to establish this offence, it is necessary to show that modesty of a particular woman has been insulted by a spoken word, gesture or physical act.

In the present matter, the above-stated offence cannot be made out against applicant, when the grievance of non-applicant 2 was that accused 1 had used filthy language against the non-applicant 2.

To constitute an offence under Section 67 of the Information Technology Act, 2000, a person must publish or transmit an obscene material in electronic form.

High Court in view of the above discussion, found no allegation or material that the applicant had either published, transmitted or caused to be published or transmitted in electronic form any material, which was lascivious or appealed to prurient interest or its effect was such to tend to deprave and corrupt persons who were likely to read, see or hear the matter contained.

Bench added that the applicant had neither published nor transmitted or caused to be published or transmitted any electronic form, any material which was obscene in nature.

Lastly while concluding, the High Court held that parameters of exercise of the powers conferred on this Court under Section 482 CrPC being settled, that in order to prevent the abuse of process of any Court and to secure the ends of justice, this power can be exercised.

Bench stated that the present case is the one where power needs to be exercised.

Taking the overall view of the matter, Court was satisfied that even if allegations in the FIR were accepted as correct and considering the material in charge sheet on its face value it does not disclose essential ingredients of offences alleged against the applicant under Sections 354-A(1)(iv), 509 and 107 of the Indian Penal Code and section 67 of the Information Technology Act, 2000.

Hence the continuation of present proceedings against the applicant would amount to an abuse of process of Court. [Kishor v. State of Maharashtra, Criminal Application (APL) No. 573 of 2016, decided on 01-03-2021]


Advocates before the Court:

Mr R.M.Daga, Advocate for the applicant. Mr T.A.Mirza, A.P. P. for the non-applicant No.1.

Mr Sanjay A. Bramhe, Advocate for the non-applicant No.2.

Cases ReportedSupreme Court Cases

SCC Issue dated March 14th, 2021 (Vol. 2 Part 4)

Read the Supreme Court order in the suo motu matter of proper treatment of COVID-19 patients and dignified handling of dead bodies in hospitals, where the Court took note of the precarious plight of corona patients and occurence of fire in hospitals and nursing homes. Multiple set of directions concerning different aspects of treatment of COVID-19 patients, their safety and prevention of spread of corona virus were issued.[Proper Treatment of COVID-19 Patients & Dignified Handling of Dead Bodies in the Hospitals, In re., (2021) 2 SCC 519]


Constitution of India — Arts. 19(1)(a) & (2), 14, 51-A(c) & (e) and 32 — Pre-broadcast injunction, when necessary and warranted: In this case, prima facie content, tenor and object of telecast in question (to vilify a particular community) violated the Constitution and statutory provisions. High Court had also restrained the broadcast of proposed programme. The Supreme Court held that it is necessary to interdict any further telecast. Pending further orders, television channel in question injuncted from making any further telecast in continuation of or similar to the episodes which were telecast on 11- 9-2020, 12-9-2020, 13-9-2020 and 14-9-2020 either under the same or any other title or caption. [Firoz Iqbal Khan v. Union of India, (2021) 2 SCC 591]

Constitution of India — Arts. 19(1)(a) & (2), 14, 51-A(c) & (e) and 32 — Pre-broadcast injunction on the basis of an unverified transcript: In this case, allegedly, the clip to be aired contained statements derogatory of the entry of a particular community into the civil services. The Supreme Court held that Court has to be circumspect in imposing a prior restraint on publication or the airing of views. Prayer for interlocutory injunction was declined and notice was issued as matter prima facie involved violation of fundamental rights and statutory rights. There should be a balance between fundamental right to free speech and expression and the fundamental right to equality and fair treatment for every segment of citizens. [Firoz Iqbal Khan v. Union of India, (2021) 2 SCC 596] 

Constitution of India — Sch. VII List I Entry 66 and List III Entry 25: Impact of Entry 66 of List I on Entry 25 of List III must be determined by reading of Central Act and State Act conjointly. State Law providing for standards in institutions for higher education or research and scientific and technical institutions, having regard to Entry 66 of List I, would be struck down as unconstitutional only if the same is found to be so heavy or devastating as to wipe out or appreciably abridge Central field and not otherwise. When a State Act is in aid of parliamentary Act, the same would not entrench upon latter. Thus, University/State Government concerned certainly has the power to fix higher eligibility criteria than the minimum prescribed by Central Governing Body/AICTE, to achieve excellence in education. [A.P.J. Abdul Kalam Technological University v. Jai Bharath College of Mngt. & Engg. Technology, (2021) 2 SCC 564]

Criminal Procedure Code, 1973 — S. 167(2) — Default bail — Accused’s right to default bail — When becomes indefeasible — Scope of such right: The moment accused files application for bail on default of investigating agency in filing charge-sheet within prescribed period and offers to furnish bail bond as directed by court, he is deemed to have “availed of” his indefeasible right to be released on bail. “Availed of” means actual release from custody by furnishing bail and complying with terms and conditions of bail order within time stipulated by court. [M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC 485]

Delhi Special Police Establishment Act, 1946 (25 of 1946) — Ss. 5 and 6 — Scope of: Though S. 5 enables Central Government to extend powers and jurisdiction of Members of DSPE beyond Union Territories to a State, same is not permissible unless State grants its consent for such extension within area of State concerned under S. 6. Provisions are in tune with federal character of Constitution, which is part of the basic structure of the Constitution. [Fertico Mktg. & Investment (P) Ltd. v. CBI, (2021) 2 SCC 525]

Disaster Management Act, 2005 — S. 10 — COVID-19: Affixation of posters outside residences of persons who are COVID-19 positive and are required to stay in home isolation, held, not required as per applicable Guidelines as they currently stood. The same would become permissible only if appropriate directions/guidelines to that effect are issued by competent authority under 2005 Act. [Kush Kalra v. Union of India, (2021) 2 SCC 481]

Government Contracts and Tenders — Blacklisting/Downgrading of Contractor/Tenderer from participating in future bids — Requirements of show-cause notice to constitute valid basis of blacklisting order: For a show-cause notice to constitute the valid basis of a blacklisting order, such notice must spell out clearly, or its contents be such that it can be clearly inferred therefrom, that there is intention on the part of the issuer of the notice to blacklist the notice. Such a clear notice is essential for ensuring that the person against whom the penalty of blacklisting is intended to be imposed, has an adequate, informed and meaningful opportunity to show cause against his possible blacklisting. [UMC Technologies (P) Ltd. v. Food Corpn. of India, (2021) 2 SCC 551]

Homoeopathy Central Council Act, 1973 — Ss. 33 and 24 r/w Regn. 6 of the 1982 Regulations: Direction by High Court to authorities to take appropriate action if Homoeopathic practitioners made any advertisement or prescribed any drugs or medicines with a claim that it is a cure for COVID-19 disease, not warranted in light of statutory regulations prohibiting advertisement for solicitation of patients personally or advertisement in the newspaper, by Homoeopathic practitioners. Particularly, when only relief claimed in writ petition was to direct State Authorities concerned to allow Homoeopathic practitioners to perform in accordance with guidelines of Ministry of AYUSH to ameliorate the effects of COVID-19 Pandemic. [Dr AKB Sadbhavana Mission School of Homeo Pharmacy v. Ministry of Ayush, (2021) 2 SCC 539]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — Epidemics and Pandemics — Spread of Coronavirus (COVID-19) — Precarious plight of Coronavirus Patients and occurrence of fire in hospitals and nursing homes: Multiple sets of directions concerning different aspects of treatment of COVID-19 patients, their safety and prevention of spread of COVID-19, issued. [Proper Treatment of COVID-19 Patients & Dignified Handling of Dead Bodies in the Hospitals, In re., (2021) 2 SCC 519]

Penal Code, 1860 — Ss. 302/34, 324/34, 325/34 and 323: In this case, there was assault by accused persons using weapons, leading to death of 2 persons and injuries to 3 others. Appellant-accused and 3 others whether shared common intention to murder. Injured witnesses (parents of one deceased victim) were found reliable and truthful. There was no reason why they would falsely implicate another, when deceased was their own minor son. Evidence of injured witnesses stood corroborated by medical evidence. Bloodstained lathi and bloodstained clothes of appellant were recovered on his confession and sharing of common intention to murder on the part of appellant-accused, held, was clearly evident. Hence, conviction of appellant under Ss. 302/34, stood confirmed. [Asharam Tiwari v. State of M.P., (2021) 2 SCC 608]

Penal Code, 1860 — Ss. 363 and 366-A — Quashment of proceedings against co-accused — When warranted: In this case, dismissal of quashment petition filed by co-accused after acquittal of main accused, was held not justified, when evidence of prosecutrix and complainant shows that there is no allegation whatsoever against the appellant co-accused. Hence, proceedings quashed against appellant co-accused. [Vishwas Bhandari v. State of Punjab, (2021) 2 SCC 605]

Penal Code, 1860 — Ss. 376, 376(2)(a), 376(2)(g) & 34 r/w S. 228-A (as inserted by Amendment Act 43 of 1983) — Rape victim: In this case, victim was held entitled to treatment as rape victim by all authorities for grant of compensation and other rehabilitation measures for herself and her children, such as free education for the children, housing, police security and other measures. Hence, further directions for relief and rehabilitation of victim and her children, in the facts and circumstances of the case, issued. [X v. State of Jharkhand, (2021) 2 SCC 598]

Service Law — Departmental Enquiry — Judicial review/Validity — Scope — Limited — Principles summarized: Power of judicial review exercised by constitutional courts under Arts. 32/136/226 of the Constitution is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and is not akin to adjudication of case on merits as an appellate authority. Examination by Court is limited to determining whether (i) Enquiry was held by competent authority; (ii) whether there was compliance with principles of natural justice; and (iii) whether findings were based on some evidence and whether authority had jurisdiction to arrive at conclusion. Further held, in exercise of jurisdiction of judicial review, courts would not interfere with findings of facts arrived at in disciplinary proceedings except in case of mala fides or perversity i.e. where there is no evidence to support finding or finding is such that no reasonable man could arrive at. Where there is some evidence to support finding arrived at in departmental proceedings, same must be sustained. [SBI v. Ajai Kumar Srivastava, (2021) 2 SCC 612]

Service Law — Retirement/Superannuation — Voluntary retirement — Regn. 29 of the Indian Bank Employees Pension Regulations, 1995: Rejection of request for voluntary retirement by an unreasoned order on last day of notice period, not proper. [Indian Bank v. Mahaveer Khariwal, (2021) 2 SCC 632]

Case BriefsHigh Courts

Gauhati High Court: The Division Bench comprising of N. Kotiswar Singh and Somitra Saikia, JJ.,  heard the instant petition against the ex-parte order passed by the Foreigners Tribunal by which the petitioner was declared an illegal migrant of post-1971 stream. The Bench remarked,

“By virtue of citizenship, one becomes a member of a sovereign country and becomes entitled to various rights and privileges granted by law in the country and, as such, if any question arises about citizenship of a person…the same should be adjudicated as far as possible on the basis of merit and on hearing the person concerned.”

Though notice was served, according to the petitioner, upon receipt of notice from the Foreigners Tribunal, her son appeared on her behalf without her knowledge. But unfortunately, the petitioner’s son neglected to appear before the Tribunal on various
dates fixed by the Tribunal resulting in passing of the ex-parte order. The contention of the petitioner was that the Tribunal passed the order without hearing the petitioner which had deprived her of her citizenship.

The Bench opined that citizenship is one of the most important rights of a person. By virtue of citizenship, one becomes a member of a sovereign country and becomes entitled to various rights and privileges granted by law in the country and, as such, if any question arises about citizenship of a person, the same should be adjudicated on the basis of merit and on hearing the person concerned. In view of above, the impugned order was set aside and the matter was remanded to the Foreigners Tribunal for reconsideration of the issue as to whether the petitioner is a foreigner. Further, the petitioner was directed to ensure her presence before the aforesaid Foreigners Tribunal.

Additionally, after observing that the petitioner’s citizenship was under cloud as the petitioner had already been declared a foreigner, the petitioner was directed to appear before the Superintendent of Police (Border), within 15 days and furnish a bail bond of Rs.5000 with one local surety of the like amount. The authority concerned was directed to allow the petitioner to have remained on bail.

The Superintendent of Police (Border) was granted liberty to obtain necessary information and documentation along with biometric details as required under the rules from the petitioner for securing her presence. However, the Court imposed restriction on the petitioner from leaving the State without giving details of the place of destination and her place of stay to the Superintendent of Police.[Rahima Khatun v. Union of India, WP(C) No. 8284 of 2019, decided on 08-04-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. P. N. Goswami and Adv. D. Gogoi

For the Respondents: Sr. Adv. P. S. Bhattacharjee, Special Counsel J. Payeng, Adv. B. Das and Standing Counsel P. S. Lahkar

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ., directed the Delhi Govt. to work out the logistics of procuring the remaining quantity of oxygen which was claimed not to have been supplied out of the allocated 480 MT.

Additional Secretary, DPIIT, Ministry of Commerce and Industry, Sumita Dawra is the in-charge of allocation of medical oxygen to various States in the country in wake of ranging Pandemic.

She gave Bench the history of how industrial Oxygen got diverted from medical use since April, 2020. She also informed the Court about the decision taken on 20-04-2021to increase in allocation for use of medical Oxygen in the NCT of Delhi from 378 MT to 480 MT.

Senior Advocate for GNCTD, Mr Rahul Mehra stated that the NCT of Delhi received somewhere between 200-250 MT of Oxygen today, adding to this he submitted that there were obstructions in the receipt of said Oxygen and the same was delayed for that reason.

Mr Tushar Mehta, Solicitor General requested that the matter be adjourned and at the same time he assured the Court that Centre shall facilitate the supply of 480 MT of Medical Oxygen to Delhi and further assured that Central Government shall also ensure unobstructed and safe passage of the Medical Oxygen tankers to Delhi of the allocated Oxygen.

Bench taking the above statement of Mr Tushar Mehta on record hoped that emergent needs of various hospitals in Delhi including those run by petitioner would be met and no casualties are suffered on account of the discontinuing supply of Oxygen to seriously ill COVID patients, and other serious patients who require Oxygen for support till the matter is take up again.

Hence, Court directed GNCTD to immediately work out the logistics of procuring the remaining quantity which was claimed not to have been supplied out of the allocated 480 MT and the suppliers are directed to comply with allocation order issued by Centre and make supplies on an emergent basis.

During this late-night hearing of the Court, it was informed to the Bench that Oxygen supplies were received by Max Hospital, Patparganj, and Max Hospital, Shalimar Bagh.

Matter to be listed today. [Balaji Medical Research Centre v. Union of India, WP(C)(temp) 5500 of 2021, decided on 21-04-2021]


Advocates before the Court:

For the Petitioner: Mr Sandeep Sethi Sr, Adv, Mr Mahesh Agarwal, Adv, Mr Rishi Agrawala, Adv, Mr Karan Luthra, Adv, Mr Ankit Banati, Advs

For the Respondents: Mr. Tushar Mehta, SGI, Mr. Chetan Sharma, ASG, Ms. Monika Arora, CGSC, Mr Anil Soni, CGSC

Mr Rahul Mehra, Sr. Advocate with Mr Satyakam, ASC, GNCTD

Mr Rajiv Nayar, Sr. Advocate with Mr Ajay Bhargav, Mr Aseem Chaturvedi, Mr Saurab Seth Advocates with Mr Siddharth Jain, Whole Time Director for M/s. INOX

Case BriefsHigh Courts

Rajasthan High Court: Mahendar Kumar Goyal, J., decided upon a petition which was filed under Section 482 of the Criminal Procedure Code for the protection of life and personal liberty of the petitioners.

Counsel for the petitioner, Mr Amit Jindal submitted that both petitioners were major and were married with the consent of their respective parents,   which was an arranged marriage.   He submitted that two sisters of petitioner 1 were married to two brothers of petitioner 2 and her sisters, leaving their in-laws family, were residing at their “pihar”. It was alleged by the counsel that the parents and other family members of petitioner 1, i.e., the respondents 5 to 9, were pressurizing and harassing the petitioners so that petitioner 1 may also return back to her “pihar”. The counsel prayed for police protection.

The Court relied upon the cases of the Supreme Court in Lata Singh v. State of UP, (2006) 5 SCC 475, S. Khushboo v. Kanniammal, (2010) 5 SCC 600, Indra Sarma v. VKV Sarma, (2013) 15 SCC 755 and Shafin Jahan v. Asokan KM, (2018) 16 SCC 368 wherein it was clearly held that society cannot determine how individuals live their lives, especially when they are major, irrespective of the fact that the relation between two major individuals may be termed as unsocial.

Thus, life and personal liberty of the individuals has to be protected except according to procedure established by law, as mandated by Article 21 of the Constitution of India. Further, as per Section 29 of Rajasthan Police Act, 2007 every police officer is duty bound to protect the life and liberty of the citizens.

The Court disposed of the petition with the direction that counsel for the petitioners shall send a copy of the petition along with its annexures to the Station House Officer of concerned Police Station through registered post/e-mail, and on receipt of the same, the Station House Officer concerned shall treat it as a complaint and after due enquiry,   he shall take necessary preventive measures and other steps to ensure safety and security of the petitioners in accordance with law.[Saroj Devi v. State of Rajasthan, S.B. Criminal Writ Petition No. 777 of 2021, decided on 20-04-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of P.B.Suresh Kumar and K. Babu, JJ., addressed the instant petition against the report submitted by the Kerala Lok Ayukta to the Chief Minister of the State under Section 12(3) of the Kerala Lok Ayukta Act, 1999 in respect to a complaint lodged by one V.K Muhammed Shafi against the petitioner. The Bench stated,

“In spite of a vigilant media, it is a fact that abuse of public resources and position in public life for private gain are rampant in our State.”

Background

The petitioner was elected to the Kerala Legislative Assembly as Minister for Higher Education on 16-05-2016 and had been a member of the Council of Ministers of the State since 25-05-2016. A complaint was received against the petitioner alleging that he had violated the oath of office by abusing his position as a Minister by indulging in favouritism and nepotism in appointing one K.T Adeeb (cousin of the petitioner) as the General Manager of the Kerala State Minorities Development Finance Corporation (the Corporation).

The academic qualification prescribed by the Government for appointment to the post of General Manager was Graduation with MBA or CS/CA/ICWAI; that immediately on assumption of office by the petitioner as the Minister in charge of the Minority Development Department, which is the administrative department of the Corporation, the Government issued an order modifying the educational qualification prescribed for appointment to the post of General Manager by adding B.Tech with PGDBA (Post Graduate Diploma in Business Administration) as an alternative educational qualification based on a note issued by the petitioner directing such a modification.

It was further alleged in the complaint that there was no proposal from the Corporation for modifying the educational qualification for the post, and the same was modified with a view to facilitates the appointment of petitioner’s cousin who possesses only the additional qualification added by the Government.

It was also submitted in the complaint that though K.T. Adeeb applied for selection pursuant to the invitation, he did not turn up for the interview and was later on appointed on deputation basis. In spite of objection raised against his appointment by the General Administration Department that K. T. Adeeb, who was then working in a Private Bank could not be appointed as the General Manager of the Corporation on deputation basis, the petitioner overruled the said objection and directed to issue orders to appoint K. T. Adeeb. Moreover, the vigilance clearance , as required in respect of persons to be appointed as General Manager in all public sector undertakings was not obtained.

Findings of Lok Ayukta

After conducting preliminary, the Lok Ayukta reached to the findings that the action of the petitioner in directing appointment of his cousin on deputation basis without inviting any application and without providing any opportunity to other eligible persons to apply for the post was an action actuated by personal interest in the discharge of the function
of the petitioner as a Minister to favour his cousin and the said actions would amount to favouritism, nepotism and also lack of integrity on the part of the petitioner in his capacity as a Minister of the State. Hence, it was declared that the petitioner was not entitled to continue as a member of the Council of Ministers. A report was accordingly submitted in terms of Section 12(3) of the Act by the Lok Ayukta to the Chief Minister.

Observations by the Court

The Bench, while citing the decision of the Supreme Court in Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil, (2009) 13 SCC 131, stated that the purpose of judicial review over orders of statutory bodies is to ensure that the statutory bodies act within the confines of their allocated powers. The power of judicial review is therefore not directed against the
decision, but is confined to the decision making process. The court would examine an error of fact touching the merits of the decision only when it has a direct nexus to
the decision making process.

Differentiating the judgment in K.Chandrasekharan v. C.Sasidharan Pillai, 1994 KHC 6, the Bench stated that, regarding the contention that the affidavit filed in support of the complaint was defective and was not in conformity with Rule 52 of Kerala Lok Ayukta (Form and Manner of Complaint) Rules, 1999, the Bench opined that since the petitioner had not raised any objection in this regard in his written statement and had not alleged any prejudice being caused to him for want of a proper affidavit; the procedural defects of the instant nature could not be raised in a proceedings for judicial review.

On the question of maintainability of report, the Bench was of the view that under Section 8(1) of the Act, the bar would apply only in the case of a complaint involving any grievance in respect of any action relating to any matter specified in the Second Schedule. Section 2(h) of the Act defines ‘grievance’ to mean a claim by a person that he sustained injustice or undue hardship in consequence of maladministration.

“The distinction between ‘grievance’ and ‘allegation’ falling within the scope of the Act is that the grievance should be contained in a claim by a person that he has sustained an injustice or undue hardship due to the maladministration, whereas the allegation in relation to the public servant can be raised by any person, who may not have any grievance to be redressed, qua the maladministration, the bar under Section 8(1) of the Act does not apply to such a case.”

Similarly, the contention of non-issuance of notice and violation of natural justice were also rejected by the Court holding that the Lok Ayukta had issued notice before admission of the complaint to the respondents including the petitioner and pursuant to the said notice, the
petitioner entered appearance in the proceedings and filed a written statement offering his comments on the complaint. Thus, considering the fact that Lok Ayukta had forwarded a copy of the complaint to the public servant even before the admission of the complaint, in the absence of any prejudice caused to the petitioner the same would not amount to injustice merely because of not repeating the same process and sending notice to the petitioner after the complaint was admitted.

Lastly, observing that it cannot be said that the Lok Ayukta is bound to afford to public servant an opportunity to let in evidence once the complaint is admitted, irrespective of the fact as to whether or not the Lok Ayukta needs any additional materials; the Bench, while relying on the decision of Supreme Court in Narayan Govind Gavate v. State of Maharashtra, (1977) 1 SCC 133, held that,

“The formation of an opinion on the facts is a subjective matter and if an opinion is formed based on the relevant materials, so long as the authority was acting within the scope of its powers, however meagre the materials be, the courts should not and will not interfere with the opinion formed in exercise of judicial review.”

Hence, finding the instant petition without any merit the Bench dismissed the same in limine. [K.T. Jaleel v. V.K Muhammed Shafi, WP(C). No.9742 OF 2021(P), decided on 20-04-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. I.P.C.Sasidharan and Adv. Akshay Venu

For the Respondents: Sr. Adv. George Poonthottam, Adv. S.Kabeer, Adv. P.E.Sajal, State Attorney K.V.Sohan, Sr. Adv. P.Narayanan, Sr. Adv. V.Manu and Sr. Adv. Suman Chakravathy

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sunil B. Shukre and Avinash G. Gharote, JJ., addressed the suo motu public interest litigation raising concern with regard to a deficient supply of Remdesivir Drug and Oxygen Supply.

Bench stated that no solution has been found regarding the deficiency in the supply of Remdesivir drug and also oxygen to COVID hospitals in Nagpur City as well as the hospitals situated in the entire Vidarbha region.

Joint Commissioner, F.D.A Nagpur, Mr Kose informed the Court that there has been shortage in supply of the drugs by the manufacturing Companies and hence resulting in a shortage on making available the said drugs to all the COVID Hospitals.

Court’s earlier direction to the State with regard to releasing ten thousand vials of Remdesivir has also been partially complied and several reasons for non-compliance were laid down.

Bench observed that Joint Commissioner, F.D.A. and the Additional Collector, Nagpur, have started to shirk their responsibilities in giving succour and relief to COVID-19 patients.

Further, the Court requested Nagpur COVID-19 Committee to hold an emergency meeting immediately and to come back to the Court with some positive response on the said issue.

High Court emphasized that Nagpur COVID-19 Committee must take efforts to procure Remdesivir vials today itself in sufficient quantity and augment supply of oxygen to COVID Hospitals.

Noting the reports of malpractices, Bench advised the authorities to consider increasing frequency of checks, surprise raids and inspection.

Lastly while concluding the present order, Court held that the purpose of hearing was to make effective rendering of essential services to COVID patients and therefore, authorities concerned should not take any coercive actions against persons coming to the Court to assist the Court.

“…affidavits filed by the Joint Commissioner and Additional Collector today making contradictory statements and taking inconsistent stands would have to be ignored and opportunity would have to be given to both these Officers to come out with consistent and correct stands and also stating correct facts.”

Leave granted to file fresh affidavits. [Court on its own motion v. Union of India, Suo-Motu PIL No. 4 of 2020, decided on 21-04-2021]


Advocates before the Court:

Mr.S.P.Bhandarkar, amicus curiae for petitioner.

Mr.U.M.Aurangabadkar, ASGI for respondent no.1. Mr.M.G.Bhangde, Sr. Cl. Assisted by Mr.D.P.Thakare, Addl. G.P. along with Mrs.Ketki Joshi, G.P for respondent nos. 2, 5, 6, 8 & 9.

Mr.S.M.Puranik, Advocate for respondent no.4. Mr.B.G.Kulkarni, Advocate for respondent no.10. Mr.C.S.Samundre, Advocate MADC.

Mr.M. Anilkumar, Advocate for Intervenor/applicant (C.A. No.5775 of 2021 & 692 of 2020 in P.I.L. No.4 of 2020). Mr.T.D.Mandlekar, Advocate for Intervenor/applicant (C.A. St.No.5806 of 2021 in P.I.L. No.10 of 2020).

Dr.P.K.Arora, in-person in CAO No.723 of 2021.

Mr.Ram Heda, Advocate for Applicants in Civil Applications C.AO. St. Nos. 4987 of 2021 and 4988 of 2021.

Mr.Nitin Lambat, Advocate for Railways.

(Ms Sushma Advocate for Respondent No.1 & Mr.J.B.Kasat, Advocate for Respondent No.4 in P.I.L. No.25 of 2020).

Case BriefsCOVID 19High Courts

9-key points from the observations by Delhi High Court decision on essential drugs, dearth of oxygen and vaccine:

  • Centre to review the allocation of oxygen on a dynamic basis.
  • Hospital that are running out of their supplies of oxygen, Centre to make the availability.
  • Notice of contempt to M/s INOX for non-compliance with this Court’s Order.
  • Medical Machines/Equipment’s, medicines, etc. that are imported should be handled and cleared at top priority.
  • Centre and the ICMR, to review the form in which the information is required to be uploaded by the testing agencies, to reduce their burden and wastage of time, as this appears to be acting as a bottleneck in the matter of preparation of reports.
  • Central Government & its agencies to issue necessary directions to all the licensee and Government should undertake to check on a regular basis to unearth all such cases of hoarding which are leading to scarcity of drugs for needy patients | Strict Penal Action.
  • Centre to review the distribution of Remedesivir Drug daily.
  • Manufacturers to be encouraged so as to ramp up their production on a war footing of all essential medications for COVID treatment.
  • Criminal Waste: If even a single dose of vaccine is wasted, it would amount to criminal waste. | Government to devise ways for registering volunteers below the age of 45 and above the age of 18 to take residual doses of vaccine.

[Rakesh Malhotra v. GNCTD, WP (C) No. 3031 of 2020, decided on 20-04-2021]


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”

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of Nitin Jamdar and C.V Bhadang, JJ., upheld the order of the District Court refusing to pass injunction against the use of the name “Covishield” by Serum Institute of India for its COVID-19 vaccine.

What is the subject matter of the instant appeal?

Instant appeal is with regard to the trademark ‘Covishield’.

Factual Matrix

Appellant and Respondent applied for registering the above-stated trademark and their application have been pending.

In the present suit, Cutis Biotech sought an interim injunction to restrain Serum Institute from using the trademark ‘Covishield’ and maintain the accounts regarding the sale.

The above stated interim application was rejected by the District Judge/Commercial Court, therefore, Cutis Biotech filed an appeal before this Court under Section 13 of the Commercial Court Act, 2015.

On 29th April, 2020 Cutis Biotech had filed an application for the registration of trademark ‘COVISHIELD’ under Class-5 and the same is pending and in June, 2020 the Serum Institute applied for the registration of trademark ‘Covishield’.

While rejecting the interim application, District Court held that:

The District Court considered the law on the subject and the tests required for grant of injunction in case of passing off. The District Court held that Cutis Biotech had earned no goodwill in a short time. There was no dishonest deception by Serum Institute for passing off or to divert the business of Cutis Biotech.

Analysis, Law and Decision

Bench noted that neither Cutis Biotech nor Serum Institute have a registration for the trademark ‘Covishield’, but as per Section 27(1) of the Trade Marks Act, 1999 it is mandated that no person shall be entitled to institute any proceeding to prevent or recover damages for the infringement of an unregistered trademark. Though sub-section 2 of the above provision, reserves the right to take action against any person for passing off his goods or services as the goods and services of the applicant and preserves the remedies to prevent passing off actions.

Hence in the instant case, Cutis Biotech has based its case on the action of passing off.

Ingredients to grant an injunction 

While granting an injunction in the case of passing off, both ingredients of injunction i.e. prima facie case and balance of convenience should exist in favour of the applicant.

Court must be satisfied that there are serious questions to be tried at the suit, irreparable damage will be caused to the applicant and hardship would be more to the applicant, and therefore an interim injunction is necessary.

Bench remarked that,

“foundation of passing off action is the existence of goodwill. Further as to who conceived and adopted the mark earlier is also relevant.”

 High Court found no prima facie case to be established by Cutis Biotech with respect to the prior user.

On evaluating the evidence on record, Court found that Serum Institute had coined the word ‘Covishield’ and took substantial steps towards its development and manufacture. Thus, the evidence demonstrates the prior adoption of the mark by Serum Institute. Hence, no perversity was found with the finding that Cutis Biotech cannot claim to be a prior user of ‘Covishield’.

Likelihood of deception and Whether the products of Cutis Biotech and Serum Institute are in the common field

To establish the above-stated point, actual confusion is not required to be established and a likelihood of confusion is enough to establish the ingredients of passing off.

In the present matter, a common-sense approach will have to be adopted to find out whether Serum Institute’s conduct was calculated to pass off its goods as that of the Cutis Biotech’s or at least create confusion in the mind of the customers leading to the Serum Institute benefiting at the expense of the Cutis Biotech.

Bench expressed that the vaccine ‘Covishield’ produced by Serum Institute is not available across the counter and is being administered through Government agencies. The buyer of the product ‘Covishield’ of Serum Institute is the Government of India. The administration of the vaccine is through an injection. The sale of disinfectant or hand sanitiser, though it may relate to the same field, that, health care products, cannot be said to cause confusion in the mind of average consumers.

Court remarked that, it would be too farfetched to hold that there will be confusion in the average consumers’ minds between the use of a trademark in a Government administered vaccine at designated places and over the counter sanitizer products.

Adding to the decision, Bench held that Cutis’s contention that people may buy its products of thinking they are protected against coronavirus because of the use of mark ‘Covishield’ is self-destructive and against the concept of passing off.

Cutis Biotech through its submissions could not establish a case of passing off action, whereas the High Court observed that Serum Institute claimed the ingredients of passing off action, yet it had not moved any cause for restraining Cutis Biotech for passing off action.

Regarding maintaining accounts, a direction to maintain accounts is not a routine order and cannot be issued when there is no prima facie case made out by Cutis Biotech.

Balance of Convenience

Vaccine ‘Covishield’ of Serum Institute had started being administrated from 16 January 2021. The Government of India rolled out an extensive vaccine administration programme and identified almost 300 million people for the vaccine in the first round, and the first order for 11 million doses for the ‘Covishield’ vaccine was placed. The second dose would be administered after the stipulated weeks. On 1 March 2021, a vaccination drive for those above the age of sixty and the age of forty-five years with comorbidities was launched. ‘Covishield’ vaccine of Serum Institute was supplied through the States and Union Territories.

Serum Institute has also placed on record that it has spent Rs 28 crore on the development, research and is expected to spend a further Rs 20 crore. With these facts, the balance of convenience is not in favour of Cutis Biotech.

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

 Hence, grant of an injunction would have large scale ramification traversing beyond the parties to the suit.

Scope of an Appeal

High Court observed that appellate court doesn’t generally interfere if the conclusion arrived at by the trial court is reasonably possible.

A total deference to the discretion by the trial court is not expected from the appellate court if the order is arbitrary or perverse.

 Bench held that, in the present case, discretion used by District Judge in refusing to grant an injunction was not arbitrary or perverse.[Cutis Biotech v. Serum Institute of India (P) Ltd., Appeal from Order No. 53 of 2021, decided on 20-04-2021]


Advocates before the Court:

Mr Abhinav Chandrachud and Mr Aditya Soni with Chetan Alai, Shriniwas Bade and Mr Swaraj Jadhav i/b. White & Brief Advocates & Solicitors for the Appellant.

Dr Birendra Saraf, Senior Advocate with Mr Rohan Savant, Mr Hitesh Jain, Ms Pooja Tidke, Ms Monisha Mane Bhangale and Ms Warisha Parkar i/b. Parinam Law Associates for the Respondent.

Case BriefsHigh Courts

Sikkim High Court: Meenakshi Madan Rai, J., rejected a bail application wherein the Petitioner, Principal of a School, aged about 58  years, was accused of the offence under Section 354 of the Indian Penal Code, 1860, Section 8 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. He was arrested on 03-03-2021.

The counsel for the petitioner, Mr B. Sharma, Senior Advocate with Mr B.N. Sharma, Mr Bhupendra Giri and Mr Charles L. Lucksom submitted that the petitioner was been falsely implicated in the instant case and that he was a responsible person running a well established Private School and was also a Politician having been elected as a Councillor and given the responsibility of Vice Chairman of the Gorkha Territorial Administration. That, he was a well reputed Social Worker and owned large property in South Sikkim. That, the investigation in the matter had been completed and he was no longer required in custody. It was further urged that he was suffering from Diabetes Mellitus, Heart disease, Dyslipidemia, Hypertension, Hyperuricemia and Renal Calculus, and the Doctor has observed that a Hypoglycemic attack may occur at any time of the night and has to be tackled urgently, this ground alone sufficed for grant of bail.

Opposing the bail application, counsel for the respondent Mr Yadev Sharma, submitted that the victim was the child of 17 years and was studying in the School run by the Petitioner as the Principal and in lieu of paying personal attention to the victim he touched her inappropriately and gave indirect hints seeking sexual favours from her. He also verbally abused her, made her do household chores and give him massages. That, since the date of his arrest, the Petitioner has remained in the Hospital with the purpose of defeating the law. That, Charge-Sheet is yet to be submitted and further investigation in the matter is being continued during the course of which, it has come to light that the mother of the victim who was the Complainant, was being pressurized to change her Statements against the Petitioner and also that he had perpetrated the same acts on other girl Students as he did on the victim.

The Court considered several factors before deciding on this matter of bail which were:

  • existence of prima facie case against the accused,
  • the nature and gravity of the accusations,
  • the penalty likely to be imposed,
  • chances of the accused absconding on being enlarged on bail,
  • the antecedents and standing of the accused in society;
  • likelihood of repetition of the offence,
  • reasonable apprehension of evidence being tampered with and witnesses being influenced; and
  • the course of justice being defeated by grant of bail.

The Court considered the FIR and the medical documents on record and observed that there was no imminent threat to the life of the petitioner. The Court further held that the gravity of the offence was necessary to be taken into consideration and the acts of the Petitioner were indeed heinous having been perpetrated on a minor under his care and guidance.

The Court while rejecting the plea for bail held that there is a prima facie case against the Petitioner although elaborate examination of evidence has not been embarked upon nor were the merits of the case being touched upon, to avoid any prejudice to the petitioner.[Lopsong Lama Yolmo v. State of Sikkim, Bail Appln. No.06 of 2021, decided on 16-04-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsCOVID 19High Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ., while addressing the concerns arising out the COVID-19 pandemic, expressed that:

The lives of the people take priority over everything else.

Rahul Mehra, Senior Counsel, Central Government in its affidavit stated that though all efforts were made to file the affidavit on behalf of GNCTD, the same could not be completed and filed.

Bench perused the affidavit filed on behalf of the Central Government by Mr Rajender Kumar, Under Secretary, Ministry of Health and Family Welfare.

What all the affidavit has dealt with?

  • Availability of COVID Beds as made available by the Central Government in the NCT of Delhi.
  • Discloses that 500 ICU Bedded DRDO COVID Care Hospital be established in Delhi Cantt.
  • 250 ICU Beds have been operationalized by DRDO and another 250 beds shall be operationalized by 22-04-2021.
  • To provide 25 medical officers and 75 paramedics to this COVID Care Centre from Central Armed Paramilitary Forces.

VENTILATORS

Further, Centre has also called upon the States and UTs to provide their requirements for ventilators in the States, so as to consider the supply of ventilators as per the availability at the earliest. Adding to this, it was stated that as per the demand of the GNCTD, 763 ventilators have been supplied by the Government of India. In addition to that, Safdarjung Hospital has been provided with 105 ventilators, Ram Manohar Lohia Hospital with 5 ventilators, LHMC with 5 ventilators, Ayush Hospital with 2 ventilators, ESIC Hospital with 10 ventilators and the DRDO facility has been provided with 500 ventilators.

BEDS FOR COVID PATIENTS 

In Central Government-run hospitals, the availability of beds for COVID Patients is up to 1432 beds. Other hospitals and facilities – other than those detailed in the affidavit, 2105 beds have been made available by the Central Government in the NCT of Delhi and with the addition of these beds, the current COVID beds allocated stand at about 4091 bed.

It has been stated that the complete breakup of the above-stated COVID beds should be indicated along with the details of ICU/ Non-ICU beds, and beds with/without oxygen, and with/without ventilator in the affidavit to be filed by the Centre on 22-04-2021.

Rahul Mehra, Senior Counsel, Central Government submitted that the number of COVID Positive Patients at present in comparison to last year are four times, therefore Central Government should allocate more beds in its hospitals and facilities for COVID patients.

Roli Khare, Director, Ministry of Health and Family Welfare stated that the Central Government has been endeavouring to make more beds available. Presently it has been stated that the Central Government hospitals are occupied by non-COVID patients in need of critical care.

Central Government should urgently look to allocate more beds among their hospitals for COVID patients.

 Bench directed the Central Government to look into the aspect of bed allocation for COVID patients keeping in view the prevailing circumstances and report in this regard on 22-04-2021.

Availability of Medical Oxygen in the NCT of Delhi

Bench stated that the situation is alarming as the availability of Oxygen has dropped dramatically in the Hospitals.

Dr Nipun Vinayak, Joint Secretary, Ministry of Health and Family Welfare explained that the Department for Promotion of Industries and Internal (DPIIT) has been looking into the aspect of diversion of Oxygen from industrial use for medical use in view of the urgent need for oxygen.

He added that apart from industries, all others have been directed not to use the Oxygen so that the same could be made available for the medical use in the country.

Mr Mehra further submitted that there is grave dearth of medical oxygen in Delhi’s Hospitals and requirement according to him is 700 MT of medical oxygen per day. Adding to this, he stated that there is non-compliance of the order passed this Court whereby, M/s INOX was required to honor its contract with the GNCTD and Delhi Hospital to supply oxygen to Delhi.

Bench – Analysis & Decision

Bench called upon the Central Government to issue appropriate orders in respect of the Steel and Petro-Chemical industries, so that a balance can be maintained between the needs of the people at large – who are suffering from COVID and are serious, and the needs of the industries.

Looking at the number of COVID positive patients all over the country, and the pattern which is emerging with regard to the spread of the viral infection and the severity with which it is impacting people in different States and regions — Central Government is directed to review the allocation of oxygen on a dynamic basis.

Oxygen supply in some major hospitals has been informed to last only for 4-8 hours and since the need for oxygen is now, there should be no delay causing the loss of precious lives.

Central Government to make available oxygen to hospitals which are running out of their supplies, lest there is grave loss of life suffered by patients being treated thereat.

Notice of Contempt to be issued to M/s INOX for non-compliance of Court’s order and the Managing Director/Owner of M/s INOX to personally remain present.

Court is informed that the equipment for setting up RT-PCR test labs are imported, and medical equipment/ machines for which import orders have been placed, are being dealt with routinely at Customs Ports, hence it is essential that all such medical machines/ equipment’s, medicines, etc. which are imported should be handled and cleared at top priority by the Customs.

ICMR to give top priority for such clearances so that the RT – PCR Labs could be set up or expanded without any delay.

Central Government, and the ICMR, to review the form in which the information is required to be uploaded by the testing agencies, so as to reduce their burden and wastage of time, as this appears to be acting as a bottleneck in the matter of preparation of reports.

Adding more to the above directions, Bench directed the Central Government and its agencies to issue necessary directions to all the licensee and the Government should undertake to check on a regular basis to unearth all such cases of hoarding which is leading to scarcity of drugs in the market for the needy patients. Strict penal action should be taken against those indulging in such practices.

 Review the distribution of Remedesivir — Essential to maximise the efficient use of the said Drug

Central Government should dynamically review the distribution of Remedesivir in the States and Union Territories on a daily basis, on the basis of the need, assessed on the basis of the serious active Covid patients, who need to be administered the said Drug.

Centre should immediately reach out to the manufacturers/patent holders/licensees so as to forthwith ramp up the production capacities of all the medications essential for COVID treatment.

Manufacturers should be encouraged to ramp up their production on a war footing. Voluntary licenses to other entities should also be granted.

 As per reports, 44 lakhs vaccines have been wasted out of the 10 crores vaccines allocated to different States due to the restriction of age or category of people who are entitled to take the vaccine.

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

Bench has been informed that each vial has 10 doses and once it is opened, it has to b either fully consumed or the remainder goes waste.

To the above, Court concluded this decision stating that:

It should be possible for the Government(s) to devise ways and means so as to register volunteers who may be below the age group of 45 years, and above the age of 18 years – who could be called upon to take the residual doses of vaccine, in case, there are doses left unutilised after, say, 05.00 P.M on each day. That would ensure that all the doses are fully utilised, and not wasted.

 Matter to be listed on 22-04-2021. [Rakesh Malhotra v. GNCTD, WP (C) No. 3031 of 2020, decided on 20-04-2021]


Advocates before the Court:

For the Petitioner: In Person

For the Respondents: Mr Rahul Mehra, Sr. Advocate with Mr Satyakam, ASC, and Mr Chaitanya Gosain and, Advocate for GNCTD.

Mr Chetan Sharma, ASG with Ms Monika Arora, CGSC and Mr Shriram Tiwary, Advocate for R-3

Case BriefsHigh Courts

Chhattisgarh High Court: Rajendra Singh Samant, J., dismissed the petition being devoid of merits.

The facts of the case are such that the applicant was charge-sheeted for trial in offence under Section 13(1)(e) read with 13(2) of Prevention of Corruption Act which was challenged before this Court and was disposed off vide directions to receive the passbooks of the bank accounts, which were under seizure nut will not be able to operate the bank accounts, as there is no specific direction of the Special Court for operation of the accounts. The instant Criminal Revision was filed challenging the legality, propriety and correctness of this order by Special Judge (Prevention of Corruption Act), Raipur, by dismissing the prayer of the applicant to defreeze the bank account, which has been seized by the respondent.

Counsel for the petitioners Mr Kishore Bhaduri and Sunny Agrawal submitted that the prohibitory order of the respondent regarding operation of the bank account is uncalled for in the present situation, hence, it is prayed that the revision petition may be allowed and the impugned order may be set aside and relief be granted to the applicant.

Counsel for the respondent Mr Adil Minhaj submitted that the amount in the bank accounts can be regarded as property under seizure has been acquired unlawfully, cannot be allowed to be disbursed or disposed when the charge sheet has been filed and the prosecution has not come to an end.

The Court relied on judgment State of Maharashtra Vs. Tapas D. Neogy (1999) 7 SCC 685 wherein it was held as under

“Then again the time consumed by the Courts in concluding the trials is another factor which should be borne in mind in  interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein, inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the accused and the Courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relation is `property’ within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into.”

The Court observed that the money in the bank account may be regarded as a property and the seizure of such property on suspicion that it is connected with commission of offence held as property within the meaning of Section 102 of Criminal Procedure Code i.e. Cr.PC and the police officer also has power to prohibit the operation of such account, if such assets have linkages with the commission of offence.

The Court thus held that there is a clear conclusion of the Investigation Agency against the applicant that he has amassed wealth, acquired assets, which are disproportionate to his income “…and the prosecution against the applicant is under contemplation by the respondent side, therefore, no order can be passed to defreeze the bank accounts, which have been seized from this applicant.”

In view of the above, instant petition was dismissed and disposed off.[Ramesh Kumar Sharma v. State of Chhattisgarh, Cr.R. No. 760 of 2020, decided on 12-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gauhati High Court:  The Division Bench of N. Kotiswar Singh and Manish Chaudhury, JJ., set aside the impugned order of the Foreign Tribunal whereby the Tribunal had declared the petitioner non-Indian on the ground of him having failed to prove his ancestral linkage with his father’s relatives.

Factual Matrix of the Case

The present petition had been filed challenging the order passed by the Foreigners’ Tribunal, whereby the petitioner was held to be an illegal migrant and consequently, was declared a foreigner under Section 2(a) of the Foreigners Act, 1946. According to the Tribunal, the proceedee-petitioner had failed to mention his links with the other persons mentioned in the voter’s list of 1970 and also links with his father and grandparents Nadu Miya and. Aymona were also held to be not proved.

Noticeably, the petitioner had mentioned the names of his grandparents whose names were reflected in the voter’s list of 1965 with the necessary details, viz., name of the village, house number, mouza, police station etc. However, in the voter’s list of
1970, the names of the grandparents of the petitioner were shown with similar descriptions but along with the names of the other voters.

Analysis and Observations by the Court

Contrary to the view held by the Tribunal, the Bench opined that the non-explanation of the linkage of the petitioner with others whose names were shown along with his grandparents in the voter’s list of 1970 did not affect the credibility or genuineness of the evidence. The fact that Harmuz Ali was the son of Nadu Mia was clearly established by the voters’ lists of 1970, 1971 and 1965. Since the State never questioned the authenticity or genuineness of the voters’ lists of 1965 and 1970 before the Tribunal, these documents had remained unrebutted.

The “fact in issue”, in the instant case was whether the petitioner could trace his ancestry to the said Nadu Miya (grandfather of the petitioner) through Harmuz Ali (father of the petitioner), as Nadu Miya was admittedly an Indian who had been casting his vote since 1966. And the fact in issue was not whether the petitioner had other relatives also.

Therefore, failure to disclose the names of all the members of the family could not weaken the petitioner’s case and render his evidence unreliable, nor reduce the credibility of his evidence, when there are other corroborating evidences. The Bench stated,

“There is no law nor dictum that if the proceedee does not disclose the names of all the other relatives…”

Whether Rules of Written Statement as prescribed in CPC would strictly apply in proceedings before the Foreign Tribunal?

Considering that no document, other than the notice was given to the petitioner while impugning his citizenship; the Bench opined that while “written statement” as understood under the Civil Procedure Code (CPC) is a defence put up by the defendant with reference to and in response to the specific averments and allegations made in the plaint; in the instant case notice was merely issued to the petitioner informing that he was an illegal entrant to the State, in the territory of Assam and India from the specified territory without any other facts and documents being furnished to him. Thus,

“The petitioner was totally in dark as to how he came to be considered to be a foreigner and not an Indian.”

Order 8 Rule 2 of CPC is that all the facts must be specifically pleaded, to avoid taking the opposite parties by surprise. However, in the proceeding under the Foreigners Tribunal, the onus had been squarely put on the petitioner to prove that he is not a foreigner but an Indian. If the petitioner introduces new facts to discharge his onus, it could not be said to take the State by surprise, as the petitioner was merely trying to prove his case and was not responding to any allegation, other than that he was a foreigner. Therefore, the principles contained in the CPC relating to the scope of written statement and limitations placed thereon cannot be strictly applied in the proceedings before the Tribunal.

On the Issue of Adverse Inference

On the issue that whether the withholding of the fact of petitioner’s father having siblings until examination-in-chief would lead to adverse inference; the Bench while relying on the judgment of Supreme Court in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, said that, production of less evidence could not necessarily lead to rejection of the claim of the petitioner nor would lead to drawing of any adverse inference. In fact,

“A proceedee must be afforded all the opportunities to prove his case and no hyper technical view should be taken to deny introducing new facts or document, so long as these are relevant and bolster the case of the proceedee.”

Findings and Decision

The Bench expressed disbelief on how the Tribunal could come to this conclusion that the petitioner could not establish his link with his father. Since, the voters’ lists of 1965, 1970 as well as subsequent voters list of 1989 onwards were found to be unrebutted which clearly show the linkage of the petitioner’s father, Harmuz Ali with the claimed grandfather, Nadu Miya.

Further, the Bench was of the view that though the Jamabandi and other revenue receipts, as relied on by the petitioner could not create the title, nevertheless, these were corroborating evidences to show that the petitioner’s father and his grandfather were in possession of certain land during the aforesaid period of 1966 to 1971. The Bench opined that even if these documents do not create title, these certainly indicate that the petitioner’s father and his grandfather were in possession of the certain property in Assam before 1971 which was corroborating evidences to show that the petitioner was a descendant of persons who were already living in Assam prior to 1971 and 1966.

The standard of proof in the discharge of the onus by a proceedee under Section 9 of the Foreigners Act is preponderance of probability as had been also reiterated in the Full Bench decision of this Court in State of Assam v. Moslem Mondal, 2013 (1) GLT 809. Therefore,

“What is important to be proved is that the parents and grandparents of the petitioner were residing during 1965 and 1970, which would rule out any allegation that they entered Assam after 01-01-1966 or after 25-03-1971.”

Hence, the fact in issue had been established without any doubt after the voter’s lists of 1965 and 1970 were proved, which corroborate the oral evidence of the petitioner and others. Further, after considering the transfer certificate of Higher Secondary School in favor of the petitioner’s father and admit card of the petitioner issued by the Board of Secondary Education, the Bench held that the documents clearly show the linkage of the petitioner with his father Harmuz Ali and grandfather, Nadu Miya and accordingly, it had been held that the petitioner was an Indian citizen and not a foreigner. Accordingly, the instant petition was disposed of with leaving the question of whether a proceedee before the Foreign Tribunal is entitled to more than mere notice open for consideration in an appropriate case. [Haidar Ali v. Union of India, WP(C)/1818/2019, decided on 30-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court:

For the Petitioner: Adv. M. J. Quadir and Adv. K. Mira

For the Respondents: Adv. A. Gayan, CGC., SC A. Kalita, SC B. Das and SC L. Devi

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar, CJ and B.P Routray, J., directed 10 lakh compensation to be paid to the grieving families and made noteworthy observations regarding the sorry plight of manual scavengers.

The present petition has been taken up suo motu after notice of the tragic deaths of sanitation workers in the two recent incidents one in Bhubaneshwar and other in Cuttack. In the first incident in Cuttack, two sanitation workers engaged in manually cleaning a sewer line died of asphyxiation. In the second incident in Bhubaneswar two sanitation workers, Sunaram Sardar (55) and Silup Birua (25) engaged in the maintenance of a sewage tank, died of Asphyxiation as they entered the septic tank that was over 25 feet deep, without any protective gear, and became unconscious due to asphyxiation.

The Court observed that it appears that in both incidents, there were egregious violations of the mandatory provisions contained in Section 7 read with Section 2 (1) (d) and Section 9 of The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act i.e. PEMSR Act as well as Rules 3 to 8 of the PEMSR Rules, 2013.

The Court stated that the social evil involving deaths of sanitation workers and/or manual scavengers where they happen to belong from scheduled castes (SCs) or the scheduled tribes (ST), the provisions particularly Sections 2 (1) (bf) and 3 (1) (j) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 i.e. SC/ST POA Act might get attracted.

It was further observed that Article 17 abolishes untouchability, forbidding its practice in any form and declaring that enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law, it was with the hope that the practice of untouchability in general and manual scavenging, in particular, would not continue in a free and independent India.

The Court further relied on judgment Safai Karmachari Andolan v. Union of India, (2014) 11 SCC 224, the Supreme Court of India held that the PEMSR Act “expressly acknowledges Article 17 and Article 21 and rights of the persons engaged in sewage cleaning and cleaning tanks as well as persons cleaning human excreta on railway tracks.”

The Court further relied on judgment Delhi Jal Board v. National Campaign for Dignity & Rights of Sewerage & Allied Workers (2011) 8 SCC 568 wherein it was observed

“….no one would like to enter the manhole of sewage system for cleaning purposes, but there are people who are forced to undertake such hazardous jobs with the hope that at the end of the day they will be able to make some money and feed their family. They risk their lives for the comfort of others. Unfortunately, for last few decades, a substantial segment of the urban society has become insensitive to the plight of the poor and downtrodden including those, who, on account of sheer economic compulsions, undertake jobs/works which are inherently dangerous to life. People belonging to this segment do not want to understand why a person is made to enter manhole without safety gears and proper equipments. They look the other way when the body of a worker who dies in the manhole is taken out with the help of ropes and cranes. In this scenario, the Courts are not only entitled but are under constitutional obligation to take cognizance of the issues relating to the lives of the people who are forced to undertake jobs which are hazardous and dangerous to life.”

Thus the Court laid down comprehensive directions to be followed by the concerned authorities regarding compensation, criminal nature of the act, vigilance regarding such matters etc. In the instant case the court “…..requests the Secretary, Odisha State Legal Services Authority (OSLSA) to immediately contact the family of the victims, both in Cuttack and in Bhubaneswar, and if they need legal assistance, to forthwith inform both the AC”

In view of the above, matter was listed for 10-05-2021.[In Re: Death of sanitation Workers v. State of Odisha, SUO MOTU W.P.(C) No.14589 of 2021-PIL, decided on 19-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Coram of Bansi Lal Bhat, J. (Acting Chairperson), Anant Bijay Singh, J. (Judicial Member) and Shreesha Merla (Technical Member) was of the opinion that Spectrum is a natural resource and the Government is holding the same as cestui que trust. Resultantly, it cannot be treated as a security interest by the lenders and they cannot be said to be the owners in possession but only in occupation of the right to use spectrum. And that it would not be available to use without payment of requisite dues.

The 10 appeals were against approval of resolution plans in respect of Aircel Ltd., Dishnet Wireless Ltd. and Aircel Cellular Ltd. in terms of common order passed by the Adjudicating Authority.

In the present matter the debt-ridden telecom companies that are undergoing insolvency proceedings sought rights to their spectrum where they claimed  it as a security interest. It was therefore alleged, that the defaulting Licensees/TelCos sought to wriggle out of their liabilities by resorting to triggering of Corporate Insolvency Resolution Process (CIRP) by seeking initiation of CIRP under Section 10 of Insolvency and Bankruptcy Code, 2016 (the Code) not for purposes of resolution but fraudulently and with malicious intent of withholding the huge arrears payable to Government, obtaining moratorium to abort Government’s move to suspend, revoke or terminate the Licences and in the event of a Resolution Plan being approved, subjecting the Central Government to be contented with the peanuts offered to it as ‘Operational Creditor’, if at all anything survives for the Operational Creditors within the ambit of distribution mechanism contemplated under Section 53 of the Code. Further that it was indisputable that the Licensees are the self-confessed defaulters having contravened terms and conditions of Licence Agreement on account of nonpayment of contractual dues towards use of spectrum causing huge pecuniary loss to the Nation besides being guilty of breach of trust but instead of rectifying the breach raised disputes of sorts to evade the huge outstanding payment. Counsel representing the Union of India remarked that “…The twin requirements of payment of dues and maintenance of services are the imprimatur of the licence agreement as the same would protect the public interest. while the Tripartite Agreement was entered to facilitate the financing of the project by Lenders and enabled Lenders to procure assignment or transfer of licence, the interest of DOT was never intended to be inferior to the interests of Lenders”. It was further submitted that the Aircel Companies stopped operations before going into insolvency and for about three years spectrum was being wasted.

Counsel for the respondent among other things submitted that the same being payable for the grants arising prior to commencement of CIRP would not be required to be paid during the moratorium period.

In the pertinent case, the issues involved were:

-Whether Telecom Service Providers can be said to be the owner based on the right to use the spectrum under licence granted to them?

-Whether a licence is a contractual arrangement? Whether ownership belongs to the Government of India?

-Whether spectrum being under contract can be subjected to proceedings under Section 18 of the Code?

– Whether the spectrum can be said to be in possession, which arises from ownership. What is the distinction between possession and occupation? Whether possession correlates with the ownership right?

-The difference between trading and insolvency proceedings and whether a licence can be transferred under the insolvency proceedings, particularly when the trading is subjected to clearance of dues by seller or buyer, as the case may be, as provided in guideline nos. 10 and 11; whereas in insolvency proceedings dues are wiped off. Guideline No. 12 is also assumed to be of significance in case spectrum is subjected to insolvency proceedings, which must be considered. the licence contained an agreement between the licensor, licensee, and the lenders, whether on the basis of that, spectrum can be treated as a security interest and what is the mode of its enforcement.

The Tribunal dealt with the matter in depth, and appreciated the articulate oral submissions so made that helped the case to see the light of the day. Thus, drafted the following summary:

Summary of Findings

-Is a natural resource and the Government is the trustee, therefore not be available to use without payment of requisite dues.

-Being an intangible asset can be subjected to insolvency/liquidation proceedings.

-Dues of Central Government/ DOT under the Licence fall within the ambit of Operational Dues under the Code and payment installments of spectrum acquisition cost also fall within the ambit.

-As per Revenue Sharing Regime and the provisions of Indian Telegraph Act, 1885, the nature of dues payable to Licenser continues to be ‘Operational Dues’ which are payable primarily in terms of the Licence Agreement.

-Triggering of CIRP under the Code with malicious or fraudulent intention, would be impermissible.

-Telecom Service Providers have the right to use spectrum under licence granted to them. They cannot be said to be the owners in possession of the spectrum but only in occupation of the right to use spectrum. Ownership of spectrum belongs to Nation (people) with Government only being its Trustee. Possession correlates with the ownership right.

-Under Section 18 of the Code, the Interim Resolution Professional is bound to monitor the assets of the Corporate Debtor and manage its operations, take control and custody.

– Insolvency Proceedings arise out of default in discharge of financial or operational debt and are triggered for insolvency resolution of corporate persons, etc. in a time bound manner for maximization of value of assets of such persons.

 -While a licence can be transferred as an intangible asset of the Licensee /Corporate Debtor under Insolvency Proceedings in ordinary circumstances, however as the trading is subjected to clearance of dues by Seller or Buyer, as the case may be, the Transferor/Seller or Transferee/Buyer being in default, would not qualify for transfer of licence under the insolvency proceedings.

-The spectrum cannot be utilised without payment of requisite dues which cannot be wiped off by triggering CIRP under the Code.

-The defaulting Licensees/ TelCos cannot withhold the huge arrears payable to Government, obtaining moratorium to abort Government’s move to suspend, revoke or terminate the Licences and in the event of a Resolution Plan being approved, subjecting the Central Government to be contended with the peanuts offered to it as ‘Operational Creditor’ within the ambit of distribution mechanism contemplated under Section 53 of the Code.

-Having regard to Clause 3.4 and 3.5 of the Tripartite Agreement according priority/ first charge to DOT, the spectrum cannot be treated as a security interest by the Lenders. Therefore, the mode of Enforcement of security interest was not considered.

 [Union of India v. Vijaykumar V. Iyer, Company Appeal (AT) (Insolvency) No. 733 of 2020], decided on 13-04-2021]


Advocates before the Tribunal:

Counsel for the Appellant

Amit Mahajan, CGSC with Pooja Mahajan, Gitesh Chopra, Vidur Mohan, Kanu Agrawal and Shefali Munde

Counsel for the Respondent

Ravi Kadam and Abhinav Vashisht, Sr. Advocates with Anoop Rawat,  Charu Bansal, Ankita Mandal, Vaijayant Paliwal, Saurav Panda, Kriti Kalyani and Salonee Kulkarni, Advocates for R1. Dhruv Dewan, Harshita Choubey, Dhruv Sethi, Chandni Ghatak and Rohan Batra, Advocates for R-2. Ramji Srinivasan, Sr. Advocate with Raunak Dhillon, Aditya Marwah, Madhav Kanoria, Shubhankar Jain, Shivkrit Rai and Rajshree Chaudhary, Advocates for R-3

Case BriefsCOVID 19High Courts

Delhi High Court: Full Bench of Vipin Sanghi, Rekha Palli and Talwant Singh, JJ., took suo motu cognizance of the extraordinary circumstances i.e. the alarming resurgence of COVID-19 pandemic under Article 226 and 227 of the Constitution of India.

Bench ordered that all matters pending before the Court and Subordinate Courts, wherein interim orders issued were subsisting as on 19-04-2021 and expired or will expire thereafter, shall stand automatically extended till 16-07-2021 or until further order, except where any orders to the contrary have been passed by the Supreme Court of India in any particular matter, during the intervening period.

In case any party faces any hardship due to the above-stated order of this Court, they would be at liberty to seek appropriate relief.

High Court directed that the Order be uploaded on the website of this Court and conveyed to all the Standing Counsel, UOI, GNCTD, DDA, Civic Authorities, Delhi High Court Bar Association and all other Bar Associations of Delhi as well as to all District Courts subordinate to this Court.

Matter to be listed on 16-07-2021.[Court on its own motion v. State (GNCTD), WP (C) No. 4921 of 2021, decided on 20-04-2021]


Advocates before the Court:

For the Respondent: Mr Santosh Kumar Tripathi, ASC, GNCTD with Mr Aditya P. Khanna, Advocate.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and Manish Pitale, JJ., quashed proceedings initiated against the petitioner (daughter) by her mother under the Protection of Women from Domestic Violence Act, 2005.

In the present matter, a daughter sought the quashing of proceedings initiated by her mother under the provisions of the Protection of Women from Domestic Violence Act, 2005 (DV Act) claiming that she was facing the ire of her mother due to matrimonial discord between her mother and father.

Further, she added that she has been unnecessarily dragged into the said proceedings pending before the Magistrate Court which is resulting in a detrimental effect on her career as also her prospects of studying abroad.

Respondent 1, Mother of the petitioner had filed an application against the husband under Sections 12,18, 19, 20 and 22 of the DV Act before the Metropolitan Magistrate. Respondent 1 had raised various grievances seeking protection order, monetary relief, residence order and order for grant of compensation.

Petitioner has plans to go abroad for further studies and for that in the application forms while seeking Visa a declaration was to be given regarding pendency of criminal cases against the applicant. But due to the pendency of said proceeding initiated under the DV Act by her mother are creating hurdles for the petitioner to successfully seek Visa.

In view of the above circumstances, present petition was filed to seek quashing of the said proceedings by her mother, insofar as she was concerned.

Analysis, Law and Decision

The intent of the DV Act is to ensure that a woman who faces abuse at the hands of her husband or a male partner has an avenue to raise her grievance against such person and also any relative of such person. Ordinarily, this would include the relatives on the side of the husband or male partner.

In the present matter, only at place of the application filed by respondent 1 under the DV Act before the Magistrate, allegation was made against the petitioner.

It is only at one place in paragraph (m) of the application that an allegation is made against the Petitioner that on the husband of Respondent No.1 (father of the Petitioner) instigating the Petitioner, she allegedly assaulted the Respondent No.1.

As per the material on record, petitioner continued to live with her father, and this was perhaps a reason why she added the petitioner as a party to the proceedings initiated under the DV Act.

Bench stated that it appeared that a single allegation made against the petitioner was an exaggeration and it had arisen out of anger of respondent 1 against the petitioner, as she continued to reside with her father, i.e. the husband of respondent 1.

“…bitterness in the matrimonial relationship between Respondent No.1 and her husband has spilled over to the children, particularly against the Petitioner”

Respondent 1 developed bitterness and anger, not only against her husband but her daughter.

Bench was surprised to note that petitioner’s own mother was hell-bent upon creating obstructions in her progress. This was evident from the affidavit filed by respondent 1, wherein it was stated that it is not necessary for the petitioner to go abroad for higher education and that the said ground was being raised only as an excuse to avoid legal proceedings initiated by respondent 1.

High Court opined that the said allegation raised against the petitioner was exaggerated and her anger and bitterness arose from the matrimonial discord with her husband leading to serious impediment in the progress of her own daughter.

“…allegations seem to be made in a fit of anger and they could be said to be improbable in the peculiar facts and circumstances of the case.”

Bench referred to the Supreme Court decision in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, with regard to exercising jurisdiction to quash the proceedings.

Following categories of cases by way of illustrations wherein such power could be exercised either to prevent abuse of the process of any court or otherwise are:

“(1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

 (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 

(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

Observing the above-stated, and in view of the facts and circumstances of the case, Bench held that the allegations levelled by respondent 1 against the petitioner, borne out of the matrimonial discord with her husband, can be said to be inherently improbable and therefore, they fall in Category-5 laid down in the above-quoted portion of the Supreme Court decision.

High Court held that the present case was fit to exercise jurisdiction to quash the proceedings initiated by respondent 1 under the DV Act, insofar as they pertain to the petitioner. [Vanisha Vincent Rodrigues v. Jyoti Vincent Rodrigues, WP No. 595 of 2021, decided on 20-04-2021]

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of Nitin Jamdar and C.V. Bhadang, JJ., took suo motu cognizance of the rise on COVID-19 cases in the prisons of State of Maharashtra.

Instant Public Interest litigation was a Suo Motu PIL initiated Re: the rise in COVID-19 Virus cases in March-April 2021 in the prisons of the State of Maharashtra.

Newspaper reports, more particularly, Hindustan Times and Free Press Journal have highlighted an alarming rise in the COVID-19 cases in the prisons in the State of Maharashtra. It had been reported that almost two hundred prisoners amongst 47 prisons in the State have been tested positive as of 14th April 2021. For about 86 staff members working in the prisons have been tested positive.

Advocate General informed the Bench that the Court had taken up a similar cause in July 2020 where the measures taken by the State Government were noted and certain directions were issued.

“…reports show a sudden rise of the COVID-19 cases in the State prisons, indicating a need for the Court’s intervention to revisit the measures.”

Bench directed the Registry to register the Suo Motu (Criminal) Public Interest Litigation under Rule 4 of the Bombay High Court Public Interest Litigation Rules, 2010.

The petition will be taken up today.

Court directed respondents to place the following information on record:

  • Status of the COVID-19 cases, both the staff members and the inmates in the prisons in the State of Maharashtra.
  • Measures being taken and proposed to be taken to control the spread of the Virus in the prisons
  • Measures to de-congest the jails in the State of Maharashtra.

[High Court on its own motion v. State of Maharashtra, Suo Motu Public Interest Litigation No. 1 of 2021, decided on 16-04-2021]


Advocates before the Court:

Mr A.A. Kumbhakoni, Advocate General a/w. Mr Deepak Thakare, Govt. Pleader for the Respondent – State

Case BriefsHigh Courts

Kerala High Court: Anu Sivaraman, J., reiterated the provision of Section 66(1)(b) of the Factories Act, 1948 are protective in nature and further expressed that:

“…such protective provisions cannot stand in the way of a woman being considered for employment for which she is otherwise eligible.”

Factual Matrix

Petitioner who was an engineering graduate in Safety and fore Engineering was engaged with respondent 2, a Public Sector Undertaking under the State of Kerala.

It was submitted that a permanent post of Safety Officer was available in the company and a notification stating that only male candidates shall apply, or the post was published.

Challenging the above-stated provision, petitioner approached the Court on the ground that it was discriminatory and that the right of the petitioner for being considered for appointment as Safety Officer was violated due to the said provision.

Adding to the above, it was contended that any provision as contained in Section 66(1)(b) of the Factories Act to the extent it denies the right of the petitioner to participate in selection for appointment as Safety Officer is violative of the valuable rights guaranteed to the petitioner under Articles 14, 15 and 16 of the Constitution of India and it was liable to be set aside.

Issue for consideration in the present case was as follows:

Whether the provisions contained in Section 66(1)(b) of the Factories Act, 1948 would stand in the way of the 2nd respondent considering the application of the petitioner for appointment as Safety Officer?

Section 66 reads as follows:-

“66. Further restrictions on employment of women – (1) The provisions of this Chapter shall, in their application to women in factories, be supplemented by the following further restrictions, namely:-

(a) no exemption from the provisions of section 54 may be granted in respect of any woman;

(b) no woman shall be required or allowed to work in any factory except between the hours of 6 A.M. and 7 P.M.:
Provided that the State Government may, by notification in the Official Gazette, in respect of any factory or group or class or description of factories, vary the limits laid down in clause (b), but so that no such variation shall authorize the employment of any woman between the hours of 10 P.M. and 5 A.M.;

(c) there shall be no change of shifts except after a weekly holiday or any other holiday.

(2) The State Government may make rules providing for the exemption from the restrictions set out in sub-section (1), to such extent and subject to such conditions as it may prescribe, of women working in fish-curing or fish-canning factories, where the employment of women beyond the hours specified in the said restrictions is necessary to prevent damage to, or deterioration in, any raw material.

(3) The rules made under sub-section (2) shall remain in force for not more than three years at a time.”

Division Bench of this Court in Hindustan Latex Ltd. v. Maniamma, 1994 (2) KLT 111 held that the provisions of Section 66(1)(b) can only be protection against exploitation of woman workers by requiring her to work during night hours without her consent.

In the above-cited case, it was also held that:

“…in a case where the woman herself seeks a consideration of her appointment which would involve waiving of the special privilege which is being granted to her under Section 66(1)(b), the State cannot rely on the said apparently beneficial provision to deny an appointment which the petitioner would otherwise be eligible for”

In Leela v. State of Kerala [2004 (5) SLR 28], a Division Bench of this Court was considering a challenge to Section 66(1)(b) of the Factories Act. Division Bench held that Section 66(1)(b) is a beneficial provision and does not provide a bar against employment of women. It was held that the provision under challenge is a special provision that enjoys the protection of Article 15(3) and does not embody a principle of discrimination on sex but is calculated to save women from the hazards of working during night in factories.

The decision of the Andhra Pradesh High Court in K.S. Triveni v. Union of India [2002 Lab.I.C. 1714] and that the Madras High Court in Vasantha R. v. Union of India [2001-II-LLJ 843] as well as of this Court in Rajamma v. State of Kerala [1983 KLT 457] were considered and it was held that in the case on hand, there was no discrimination based on sex. The contentions were, therefore, rejected and it was held that the provision of Section 66(1)(b) embodies a special provision in favour of women and does not suffer from the vice of discrimination.

Adding to the above, it was stated that Andhra Pradesh High Court had also an occasion to consider a similar challenge and it was held that the provision could not stand in the way of a woman being employed during night hours unless there is a compulsion on the part of the employer on the woman to carry out her duties in a factory during the night time.

Bench noted the fact that the Factories Act, 1948 was enacted at a time when requiring a woman to work in an establishment of any nature, more so in a factory, during the night time could only be seen as exploitative and violative of her rights.

World has moved forward and women who were relegated to the roles of homemakers during the times when the enactment had been framed have taken up much more demanding roles in society as well as in economic spheres.

It was also observed that women have been engaged in several professions requiring round the clock labour and have proved themselves quite capable of facing the challenges of such engagement.

Supreme Court’s decision in Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469, declared that an absolute bar on women seeking command appointment violates the guarantee of equality under Article 14 of the Constitution.

Coming to the present scenario, to say that a graduate engineer in safety engineering cannot be considered for the appointment because of an offending provision under Section 66(1)(b) of the Factories Act was completely untenable and unacceptable.

The above is evident from the fact that State of Kerala had approved an amendment to the Rules which permitted the engagement of women on the condition that all safety precautions and facilities for such engagement were arranged by the employer.

Division Bench of this Court has earlier in a case held that Section 66(1)(b) is only a protective provision.

Hence the above said Section cannot be an excuse for denying engagement to a woman who does not require such protection anymore.

Bench in view of the above discussion held that it is the bounden duty of respondents who are Government and Government Functionaries to take all appropriate steps to see that a woman was able to carry out the duties assigned to her at all hours, safely and conveniently.

Therefore, the embargo contained in exhibit 7 stating that “only male candidates can apply” was violative of the provisions of Articles 14, 15 and 16 of the Constitution of India. Hence it was set aside.

While concluding, Court directed 2nd respondent to consider the petitioner’s application for appointment to the post of Safety Officer.

The Petition was disposed of above terms. [Treasa Josfine v. State of Kerala, WP (C) No. 25092 of 2020 (J), decided on 09-04-2021]


Advocates before the Court:

For the petitioner: Sri P.R. Milton and Sri George Varghese (Manachirackel)

For the respondents:

R1 By Sr. Government Pleader and Sri Bijoy Chandran
R2 By Adv. Smt. Latha Anand
R3 By Sri P.Vijayakumar, ASGI

COVID 19Hot Off The PressNews

District Collector, Bilaspur vide an Order dayed 18-04-2021 extended the lockdown in Bilaspur District where the High Court is situated, till 26-04-2021.

In light of the aforesaid order dated 18-04-2021 of the District Collector, Bilaspur and in compliance of Order No. 73(Mis)/II-14-1/2021, dated 12.04.2021 of this Registry, the limited functioning of the High Court of Chhattisgarh shall stand extended till 26-04-2021.

In view of the above, the cases already listed in the cause list for 22.04.2021 shall be taken up on 27.04.2021.

The cases which are extremely urgent in nature may be mentioned before the Registrar (Judicial)/ Additional Registrar (Judicial) as per the practice prevalent in the High Court during holidays.

Link to the NOTIFICATION.


Chhattisgarh High Court

Notification dt. 19-04-2021