Madras High Court
Case BriefsHigh Courts

Madras High Court: A Division Bench of R Mahadevan and J Sathya Narayan Prasad, JJ. upheld the constitutional validity of Government Order ‘GO (Ms) No. 83′ issued by the Social Welfare and Nutritious Meal Programme Department under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (‘Act’) and Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 (‘Rules’) safeguarding the interests of elderly and senior citizens.

An instant batch of petitions was filed seeking validity of the Government Order ‘GO (Ms) No. 83 dated 23-11-2016 and seeking implementation of the same.

Validity of Government Order

The Court observed that the impugned Government Order would not fall within the provisions of the Act as the provisions of the Act are clearly and unambiguously silent about the establishment, administration or management of old-age homes by the private individuals or entities or even of their supervision by the State Government in any manner.

Placing reliance on Government of NCT of Delhi v. Union of India, (2018) 8 SCC 501 and observed that once the State Government has the legislative power on a subject, the executive power of the State is also co-extensive with that. Thus, the State has the executive power under Article 162 to issue any executive instruction/order with respect to privately managed old age homes.

The Court thus held that the power of the State to issue an executive order in respect of privately managed old age homes, to which the impugned G.O. does not make any contrary provision rather supports the existing legislative provisions, thus, the impugned G.O. is constitutionally valid and there are no grounds to interfere with the same. The desirability or otherwise to pass legislation to incorporate the management of privately managed and owned old-age homes by the State Government is a matter to be left to the legislature.

Violation of Article 19 (1) (g) Constitution of India

A four-limb test was propounded in judgment Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353, wherein doctrine of proportionality in the context of Article 19 (1) (g) was tested. It is as follows:

  1. The restriction must be in pursuance of legitimate state aim
  2. Rational nexus between the restricting measures, facts and objects sought to be achieved.
  3. The necessity of the measure to achieve the said aim, i.e., it should be a least restrictive measure
  4. Balancing of competing interests i.e., balancing the right under Article 19(1)(g) and the social control/restriction imposed on the same.

Thus, in view of the test laid above, the Court observed that the Societies and Trusts managing these private retirement homes must work in tandem with the State Government in order that the quality of life of the senior citizens is elevated to the desired level. Therefore, the restrictions imposed by the impugned order cannot be said to be violative of Article 19(1)(g) Constitution of India.

Violation of provisions of Real Estate (Regulation and Development) Act, 2016 (‘RERA’)

Reliance was further placed on Forum for People’s Collective Efforts v. State of West Bengal, (2021) 8 SCC 599 and observed that the effect of sections 88 and 89 of the RERA is that all laws that are not inconsistent with the RERA will continue to operate in their own sphere, while the ones that are inconsistent will not prevail over the RERA. The same principle would be applicable to the impugned G.O. as well. As long as it is not repugnant to any of the statutory provisions, there can be no inconsistency between the impugned G.O. and the provisions of the RERA Act. Also, as already stated, the RERA does not preclude the application of other laws unless they are inconsistent with the RERA.

Thus, the Court held that “the provisions of the RERA Act and the impugned G.O. must be batch mutually exclusive to be valid. They must be read harmoniously as the object of the laws are obviously different and have been made pursuant to different fields of legislation, with no apparent conflict or repugnancy between the two”.

Doctrine of Parens Patriae and Welfare of Senior Citizens

Placing reliance on Ashwani Kumar v. Union of India, (2019) 2 SCC 636 the Court noted that the State Government may also do well in plugging the loopholes that have been pointed out by the writ petitioners and come up with further clarifications and details and also examine the desirability of incorporating certain provisions by way of legislation that will have greater force in law.

The Court thus concluded by issuing the following guidelines:

  1. The State Government shall take steps to inspect all old age homes within the State and ensure implementation of the spirit of the impugned GO, which has now been upheld.
  2. After inspection, the State Government may issue directives to be complied with, and deficiencies, if any, to be rectified by the old age homes/retirement homes in order to comply with the spirit of the Government Order as well as the orders passed herein. The State Government shall take steps to monitor the day-to-day functioning of the batch homes, with more focus on nutrition, hygiene and medical needs of inmates, such as food, round the clock security, clean drinking water, ambulance services, medical care, amusement and entertainment, religious activities, etc., to suit their needs.
  3. The non-compliance of the directives/non-rectification of the deficiencies as pointed out, must entail civil consequences for the retirement homes/old age homes, including cancellation of registration.
  4. The State Government must ensure that every old age home/retirement home within the State is registered with it and the Government must maintain records of its inmates as well as the persons involved in the Management.
  5. The State Government must ensure that non-registered homes do not continue to function within the State and must act on any complaint by any person in this regard, after necessary inspection.
  6. The State Government must maintain a grievance cell for senior citizens, while ensuring compliance of the Government Order, now being upheld. (The term “State Government” employed in the above guidelines shall include any authorized representative or officer of the Government).
  7. It is only appropriate that the substance of the impugned executive order may be well made part of a legislation either independently or as an addition to the existing legislation on the subject with more clarity in order that no further time is wasted on debating the validity and applicability of the welfare measures to senior citizens and old age homes/retirement homes, etc. on a universal scale.

[S Krishnamurthy v. Manivasan, 2022 SCC OnLine Mad 3525, decided on 30-06-2022]


Advocates who appeared in this case :

Mr. J. Narayanasamy, Advocate, for the Petitioner Cont. P. No. 515 of 2018;

Mr. S. Arokia Maniraj, Advocate, for the Petitioner in WP No. 16984 of 2017;

Mr. N.L. Rajah, Senior Counsel for Mr. K.R. Arun Shabari, Advocates, for the Petitioner in WP Nos. 30458, 30469, 30874, 30884 of 2019;

Mr. V. Arun assisted by Mr. P. Balathandayutham, Advocate, for the Respondents;

Mrs. Aparna Nandakumar, Advocate, for R4 in WP No. 16984 of 2017;

Mr. N.L. Rajah, Senior Counsel for Mr. K.R. Arun Shabari, Advocates, for R5 in Suo motu WP No. 28237 of 2017;

Mr. C.G. Kumar, Advocate, for R5 in WP.No.16984 of 2017.


*Arunima Bose, Editorial Assistant has reported this brief.

SCC Part
Cases ReportedSupreme Court Cases

In 2022 SCC Volume 4 Part 2, read this very pertinent matter of the Supreme Court wherein it was decided whether culpable homicide tantamounts to murder or not. Read the full Judgment here: [State of Uttarakhand v. Sachendra Singh Rawat, (2022) 4 SCC 227]

Short Notes: 4


Arbitration and Conciliation Act, 1996 — S. 34 — Delay beyond the period of 3 months plus 30 days: If a petition is filed under S. 34 beyond the prescribed period of three months, the Court has the discretion to condone the delay only to an extent of thirty days, provided sufficient cause is shown. Further, S. 5 of the Limitation Act is not applicable to condone the delay beyond the period prescribed under S. 34(3). [Mahindra & Mahindra Financial Services Ltd. v. Maheshbhai Tinabhai Rathod, (2022) 4 SCC 162]

Arbitration and Conciliation Act, 1996 — S. 34: Amended S. 34, i.e. as amended by Arbitration and Conciliation (Amendment) Act, 2015 is not applicable to S. 34 proceedings commenced prior to 23-10-2015. [Ratnam Sudesh Iyer v. Jackie Kakubhai Shroff, (2022) 4 SCC 206]

Armed Forces — Penalty/Punishment — Substitution of punishment of dismissal with compulsory retirement: Due to peculiar circumstances of the case, punishment of dismissal substituted with compulsory retirement. [Brijesh Chandra Dwivedi v. Sanya Sahayak, (2022) 4 SCC 189]

Constitution of India — Art. 227 — Supervisory jurisdiction of High Court: Principles summarised regarding nature and scope of supervisory jurisdiction of High Court. [Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181]

Constitution of India — Arts. 341 and 342 — SCs/STs: Implication of “for the purposes of this Constitution … in relation to that State”, is that benefit of status as SC/ST or OBC is granted only in relation to a State on the basis of ordinary and permanent residence of the castes/classes of persons concerned in that State. Benefit of status of SC/ST or OBC in one State is thus not automatically nor ordinarily transferable to another State upon migration. [Bhadar Ram v. Jassa Ram, (2022) 4 SCC 259]

Consumer Protection Act, 1986 — S. 13 — Delay in filing written statement, beyond the period of 15 days in addition to 30: The 5-Judge Bench in Hilli case did not make a distinction between applications for condonation which had been decided and those which were pending on the date of the decision. Thus, applications for condonation of delay that were pending or decided before 4-3-2020 would both equally be entitled to the benefit of the position in Mampee, (2021) 3 SCC 673 which directed Consumer Fora to render a decision on merits. [Diamond Exports v. United India Insurance Co. Ltd., (2022) 4 SCC 169]

Education Law — Professional Colleges/Education — Medical and Dental Colleges — Reservation of seats/Quota/Exemption/Priority in Medical/Dental Institutions — Criteria for reservation: In this case, it was held that as per reservation scheme of UT, first priority was given to candidates whose parents were domiciles of UTs and candidate had studied in institutions of the UTs for specified classes, that is, 8 to 12. But petitioner had studied only primary classes in the UTs, due to which High Court by a well-reasoned judgment denied relief to her. Decision of High Court, affirmed, and not interfered with. In another judgment, relief had been given but that was because of the peculiar circumstances of that case and because the candidate had studied from Classes 9 to 12 in the UTs. [Muskan Samir Modasia v. Union of India, (2022) 4 SCC 225]

Environment Law — General Principles of Environmental Law — Precautionary Principle/Sustainable Development/Inter-Generational Equity Principle — Delhi Metro — Providing effective transportation vis-à-vis ecology — Phase IV of MRTS Project: Earlier phases of project had already resulted in loss of vegetation as well as flora and fauna in certain areas. Phase IV of MRTS Project may be a further threat to the ecology of NCT of Delhi/NCR. Effectuation of precautionary principle as well as principle of sustainable development, by ensuring citizens’ participation in the preservation of the environment and ecology, emphasized. Directions issued regarding role, involvement and collective responsibility of civil society without ignoring importance of governmental responsibility for reafforestation. [T.N. Godavarman Thirumulpad, In re v. Union of India, (2022) 4 SCC 289]

Hindu Succession Act, 1956 — Ss. 14(1) & (2) and S. 30: A restricted estate can be created by a will in favour of a female, so long as it is a new and independent right and does not amount to the recognition of a pre-existing right as per the principles laid down in V. Tulasamma, (1977) 3 SCC 99. Objective of S. 14(1) is to create an absolute interest in case of a limited interest of wife where such limited estate owes its origin to the law as it stood then. Objective cannot be that a Hindu male who owned self-acquired property is unable to execute a will giving a limited estate to a wife if all other aspects including maintenance are taken care of. If it is held so it would imply that if wife is disinherited under will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of intent of testator. That cannot be objective of S. 14(1). [Jogi Ram v. Suresh Kumar, (2022) 4 SCC 274]

Income Tax Act, 1961 — S. 40(a)(ii-b) (as inserted by Finance Act, 17 of 2013) — Income chargeable under head “profits and gains of business or profession” — Amount levied exclusively on State-owned undertaking: Claim as deduction in books of State-owned undertaking is not permissible and same is liable to income tax. Gallonage fee, licence fee and shop rental (kist), held, are in the nature of fees imposed under Abkari Act of 1902. These are fees payable for licences granted in favour of State-owned undertakings. Aspect of “exclusivity” under S. 40(a)(ii-b), held, has to be viewed from nature of undertaking on which levy is imposed and not on number of undertakings on which levy is imposed. Hence, held, S. 40(a)(ii-b) applicable to all of the abovesaid fees. [Kerala State Beverages Manufacturing & Marketing Corpn. Ltd. v. CIT, (2022) 4 SCC 240]

Penal Code, 1860 — Ss. 299 and 300 — Whether culpable homicide tantamounts to murder or not: Principles reiterated regarding how to determine whether culpable homicide tantamounts to murder or not. [State of Uttarakhand v. Sachendra Singh Rawat, (2022) 4 SCC 227] 

Public Sector, Government Companies and Statutory Corporations — Employment and Service matters — Pension: Employees of autonomous bodies cannot claim, as a matter of right, same service benefits on a par with government employees merely because such autonomous bodies might have adopted Government Service Rules and/or in Governing Council there may be representative of Government and/or merely because such institution is funded by State/Central Government, more so, when such employees are governed by their own Service Rules and service conditions. State Government and autonomous Board/body cannot be put on a par. [State of Maharashtra v. Bhagwan, (2022) 4 SCC 193] 

Railways and Metros — Financing, Construction and Operation of Projects — Phase IV of Delhi Metro Project: Duties, liabilities and obligations of State Government and Central Government, regarding bearing of operational loss, repayment of loan and sharing of land cost, clarified. [M.C. Mehta v. Union of India, (2022) 4 SCC 317]

Case BriefsHigh Courts

Delhi High Court: Stating that, cases under Section 376 of Penal Code, 1860 should not be quashed and should not be taken as a crime against the society at large, Swarana Kanta Sharma, J., expressed that, in peculiar circumstances, where the complainant states that her future depends on quashing of the FIR and adding that the rape was not committed upon her, it would be in the interest of justice to quash the FIR.

The instant petition was filed for quashing of an FIR registered for offences punishable under Sections 376/377/498-A of Penal Code, 1860 read with Section 34 IPC.

In the present matrimonial dispute, it was noted that a charge sheet had been filed under Section 376 of the Penal Code, 1860, however, in her statement under Section 164 CrPC, the complainant had stated that only an attempt to rape had been made by her father-in-law and the charges were not yet framed by the trial Court.

The complainant gave her statement which she had given under Section 164 CrPC and on a query made by this Court, the complainant who was present in person stated that she has entered into a compromise out of her own free will and without any pressure, coercion or threat. Further, she stated that she had no objection if the FIR was quashed.

High Court expressed that,

“…any case coming to an end is a welcome step at it decreases the pendency of the Courts, more so, in matrimonial offences quashing is welcome as it shows that parties have decided to put an end to the lis as well as to the misery they undergo due to a matrimonial case pending between them.”

Further, the Bench added that, the fact that now-as-days Sections 376 and 354 of the Penal Code, 1860 are being used along with Section 498-A IPC, which later are compromised and are brought to this Court for quashing, needs to be curbed.

The Court appreciated the stand taken by the complainant and her wish to move in life as her future depended on the settlement of the matrimonial dispute and quashing of the present FIR. In case the FIR is not quashed in this case, the entire settlement between the parties will come to an end.

Lastly, the High Court held that “Court wishes that the compromise would have taken place much earlier, however, through this order let a message be sent to the society at large that compromise is the best way possible to settle disputes and the sooner the better.”

Therefore, the FIR was quashed. [Arshad Ahmad v. State NCT of Delhi, 2022 SCC OnLine Del 1736, decided on 2-6-2022]


Advocates before the Court:

For the petitioners:

Mr Arun Bhardwaj, Senior Advocate with Mr Abhishek Sharma and Mr Rahul Sharma, Advocates.

For the respondents:

Mr Ranbir S. Kundu, ASC for State with Mr Mukul Dagar, Ms Pooja and Mr Agniwesh Singh, Advocates along with SI Jyoti Phogal, PS Mehrauli.

Mr Hilal Haider and Mr Butul Khan, Advocates for R-2 with complainant in person.

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Saroj Punhani, Information Commissioner addressed a matter with regard to the disclosure of the inspection reports of the law colleges in the public domain.

The appellant filed an RTI application seeking the following information:

  • How frequently the inspection of colleges is done by BCI.
  • Provide the list of colleges which are not found fit after inspection between 2016-20.
  • Provide the list of colleges whose affiliations were cancelled by BCI between 2016-20.
  • Provide the list of all the colleges and the members who inspected along with date and time.

Being dissatisfied with the delay in getting the information, the appellant filed a First Appeal. Further, FAA’s order upheld the reply of CPIO.

Feeling aggrieved and dissatisfied, the appellant approached the Commission with an instant appeal.

Appellant contended that the as on the date of hearing the BCI website did not contain any updates and urged to the Bench that the decadent lack of transparency in the functioning of BCI and the absence of inspection reports of the law colleges in the public domain caused immense agony to the student community as they were unable to make an informed decision for taking admission to the various law colleges and cited instances with respect to a bunch of law colleges in Patna wherein the High Court had to intervene and issued directions to the BCI to conduct the inspection of the colleges.

Commission took exception to the disdainful conduct of the FAA and closed the hearing proceedings.

Decision

The Commission fund no infirmity in the reply of CPIO in as much as the appellant was provided with a factual reply while also being offered an inspection of the available and relevant records.

Further, the Commission expressed that the disclosure of the inspection reports of the law colleges in the public domain would benefit the student community at large and significantly reduce the burden of RTI Applications.

For the above-stated reason, the Commission directed the FAA to place the present order before their competent authority to ensure that action is expedited with respect to the up gradation of the BCI website while also incorporating the stipulations of the Commission in H.N. Pathak v. PIO, BCI, CIC/SA/C/2016/000164, 2-1-2017.

Coram directed the CPIO to reiterate the opportunity of inspection with respect to the information sought and facilitate the same on a mutually decided date and time. Additionally,  the intimation of the date & time of the inspection shall be provided to the appellant telephonically and in writing by the CPIO.

Copy of documents, if any desired by the Appellant during the inspection shall be provided free of cost upto 25 pages and beyond this limit, prescribed fees may be charged as per RTI Rules, 2012 by the CPIO.

The above-said directions shall be complied within 15 days. [Prasoon Shekhar v. CPIO, BCI; CIC/BCOIN/A/2020/687001; decided on 25-5-2022]

Case BriefsDistrict Court

Rohini Courts, Delhi: Jagdish Kumar, ASJ: Special FTC (North), grants bail to an accused alleged of making physical relationship and then capturing nude pictures and circulating the same.

It was submitted that the applicant had been implicated in the present case with the malicious intention of the police official and he never indulged in any criminal case.

Allegations were that the accused took the prosecutrix to a hotel for pay and made a physical relationship for the first time, in fact, he also captured nude pictures and made viral the same and started forcing her to have physical relations with his friend.

Further, the Additional PP came to the residence of the prosecutrix as she was residing with her friend and made a physical relationship with her, additionally, there were allegations that he criminally intimidated the prosecutrix to kill her if she disclosed the incident to anyone.

Analysis and Decision

Court noted that no date, month or year was mentioned by the prosecutrix as to when the alleged offence was committed upon her. Further, the applicant/accused was not previously involved in any other criminal case.

In view of the above-stated facts and circumstances of the case, the applicant/accused was admitted on bail.

Bench directed that the accused/applicant shall not contact or try to contact either complainant or any other witness directly/indirectly. [State v. Rahul Kumar Jha, 2022 SCC OnLine Dis Crt (Del) 24, decided on 19-5-2022]


Advocates before the Court:

Shiv Kumar, Substitute Addl. PP for the State

IO W/SI Sushil Yadav in person.

Victim/prosecutrix in person with counsel U. Hashmi and Geeta Verma, Counsel for DCW.

Mr Shahid Tasleen Uzbek, Translator in person.

Accused is produced from JC.

Pradeep Khatri, Counsel for the accused.

Case BriefsHigh Courts

Delhi High Court: In a case wherein a police officer got injured due to an attack by an illegal weapon out of the police station, Talwant Singh, J., expressed that, Police Post is a place where people go to lodge complaints of the disputes amongst them, and it is not a place where the public servants are supposed to be attacked.

In the present case, the petitioner sought bail in a case filed under Sections 186, 353, 307, 147, 148, 149, 379 and 34 of the Penal Code, 1860.

Further, it was submitted that the petitioner was arrested in a false and fabricated case.

Factual Background


The complainant was present in Police Post Inderlok when one person, Kale met him in the said Police Post and made complaint against Mohsin, Salman, Naved, etc., about the loot in his shop and Kale being beaten up by these persons. Further, one Sadeqin was brought to the police Post, where SI Pankaj Thakran made some formal enquiry and, in the meantime, Mohsin, Naved, etc., reached the police post and started shouting in abusive language; SI Pankaj Thakran tried to calm the, but all in vain.

It was stated that the petitioner had pistol in his hand and others were armed with Lathi/Dande. The said persons were pushed by SI Thakran alongwith the help of other police officials, but they came back again pelting stones and then SI Pankaj Thakran fired with his government pistol and during that period applicant also fired from his pistol.

Thereafter, SI Pankaj Thakran took out an AK-47 rifle lying in his office and seeing this, all accused persons fled away from there and at that time another shot was fired, after which SI Pankaj Thakran was admitted to hospital.

On the statement of SI, the present accused was arrested and since then he is behind the bars.

Analysis and Decision


The present case was the one where a public servant was the complainant, whose place of posting i.e. the Police Post was attacked by a group of people, who were armed with Dandas, Lathis and the present petitioner was holding a fire arm in his hand.

High Court expressed that,

The Police Post is a place where people go to lodge complaints of the disputes amongst them, and it is not a place where the public servants are supposed to be attacked with firearms, Dandas and Lathis or by pelting stones on them.

The Bench noted that there was a previous history of the petitioner being involved in criminal cases and the police officials were doing their duty.

Additionally, the Court stated that, the possibility of the petitioner indulging in threatening the witnesses or indulging in the same crime again and fleeing from justice cannot be ruled out.

In High Court’s opinion, the present case was not fit for bail even on the ground of parity as the role assigned to the present petitioner was quite different from his other associates. [Naved v. State, 2022 SCC OnLine Del 1759, decided on 11-5-2022]


Advocates before the Court:

For the petitioner: Juned Alam, Advocate.

For the respondent: Tarang Srivastava, APP with SI Suman Prasad, PS Sarai Rohilla.

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: Sathish Reddy, J., while addressing a maintenance case, expressed that, the wife’s earning capacity cannot be a bar from awarding her maintenance.

Factual Background


Instant case was filed by the petitioners to set aside the order of the lower Court wherein the said petition was filed by the petitioners under Section 125 (1) CrPC seeking interim maintenance which was allowed directing the first respondent to pay Rs 7,000 per month each to petitioners 2 and 3.

Petitioner 1 was the wife and petitioners 2 and 3, children of the first respondent. Further, the petitioners a petition before the lower Court was filed seeking interim maintenance of Rs 12,000 per month to each of the petitioners 2 and 3 and Rs 10,000 per month to petitioner 1.

Further, the Family Court directed the first respondent, the husband of petitioner 1, to pay Rs. 7,000/- per month each to petitioners 2 and 3 towards interim maintenance from the date of the petition, pending disposal of maintenance case. The petition to the extent of petitioner 1 was dismissed. Aggrieved by the said order, the petitioners preferred this revision.

Analysis, Law and Decision


High Court stated that the Supreme Court decision in Rajnesh v. Neha, (2021) 2 SCC 324, made it amply clear that,

“If wife is earning, it cannot operate as a bar from awarding maintenance to suit the lifestyle of her husband in the matrimonial home.”

In the present matter, Family Court had only dismissed the interim application filed by the first petitioner on the ground that she herself had mentioned that she was earning Rs 20,000/- per month.

In Court’s opinion, Family Court had passed a well-reasoned order which required no interference. [Nikhat Fatima v. Syed Razi Ahmed, 2022 SCC OnLine TS 911, decided on 21-4-2022]

Case BriefsHigh Courts

Delhi High Court: While granting bail to men accused of smuggling gold, the Division Bench of Mukta Gupta and Mini Pushkarna, JJ., expressed that, the mere smuggling of gold without any connection to a threat to the economic security or monetary stability of the country is not a “terrorist act” under the Unlawful Activities (Prevention) Act

Aggrieved by the impugned order declining to grant bail to the appellants in a case registered under Sections 16/18/20 of the Unlawful Activities (Prevention) Act, 1967 and under Sections 120B/204/409/471 of Penal Code, 1860 at NIA Headquarters, appellants preferred the present appeals.

Factual Matrix


Appellants except appellant Vaibhav Sampat More were intercepted by the Delhi Zonal Unit of Directorate of Revenue Intelligence while travelling from Assam, Guwahati to Delhi and it was alleged that 504 gold bars weighing 83.621 kilograms, which were smuggled and recovered at New Delhi Railway Station.

After the DRI carried out its investigation RC was registered by the National Investigation Agency for alleged commission of criminal conspiracy, furthering terrorist activities and also threatening the economic security and damaging the monetary stability of India as provided under Section   15(1) (a) (iii a) of UAP Act being a terrorist act punishable under Section 16 of the UAP Act.

Additional Solicitor General took the Court to the statement of objects and reasons of the Amendment Act which showed that the amendment was made to the definition of “terrorist act” by bringing in facets of terrorist acts by disturbing the economic stability of the country.

The above-said amendment had been made pursuant to the recommendations of the Financial Action Task Force.

Even though the report specifically dealt with gold, the word ‘gold’ was not added while amending Section 15(1) (iiia) UAP Act.

Further possession, use, production, transfer of counterfeit currency or coin is per-se illegal and an offence, however, production, possession, use etc. of “gold‟ is not per-se illegal or an offence. Even import of gold is not prohibited but restricted subject to prescribed quantity on payment of duty.

Thus, mere smuggling of gold without any connection whatsoever to threatening India’s economic security or monetary stability cannot be a terrorist act.

In the present case, Bench noted that since no death had been caused, Clause ‘b’ of Section 16 of UAP Act won’t be applicable which provided for sentence of minimum imprisonment for a period of 5 years which may extend to life imprisonment from 5 years to life based on the facts of the case.

In view of the above discussion, bail was granted to the appellants. The following conditions were laid down:

  • The appellants will furnish a personal bond and a surety bond in the sum of ₹1 lakh each to the satisfaction of the learned Trial Court.
  • Appellants will surrender their passports, if in their possessions, to the Trial Court.
  • Appellants will not leave the country without the prior permission of the Trial Court.
  • Appellants will report to the jurisdictional Station House Officer of the Police Station where they reside on the first Monday of every month between 10.00 AM to 5.00 PM for marking their presence.
  • Appellants will submit their residential address and the mobile phones used by them and in case of change, the same will be intimated to the learned Trial Court by way of an affidavit.
  • Mobile phones used by the appellants will be kept in active mode and the appellants will share the live locations of their mobile phones with the Investigating Officers for the next six months.

In view of the above, appeals were disposed of. [Vaibhav Sampat More v. National Investigation Agency, 2022 SCC OnLine Del 1705, decided on 3-6-2022]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J. allowed an appeal against an order of the Trial Court which convicted a man of raping a girl and thereby ordered that the man be released from jail forthwith.

The facts stated by the prosecution were that the prosecutrix left her house to get some goods from the market but did not return. She returned on the next day. She told that the appellant, accompanied by the co-accused Rajat enticed her in Scooty. The appellant then took her to his Aunt’s house. He made her drink beer and, in the night, forcibly raped her and threatened her to life if she reveals it to anyone. A case was registered under the POCSO Act, 2012 and under Sections 363, 376 and 506 IPC. Upon further investigation, age of the prosecutrix was ascertained to be above 18 years and the complaint under the POCSO Act, 2012 was dropped.

In order to establish the offence, it must be proved that the act was done without the ‘consent’ of the prosecutrix. The Court referred to the case of Satpal Singh v. State of Haryana, (2010) 8 SCC 714, which stated-

“30. An act of helplessness in the face of inevitable compulsions is not consent in law. More so, it is not necessary that there should be actual use of force. A threat of use of force is sufficient.”

Also, it is well laid down that where the sexual intercourse by the accused is proved and the woman states before the court that she did not consent, the court shall presume that the woman did not consent.

However, the Court opined that conviction cannot be based on the statement of the prosecutrix alone unless it qualifies the parameters of reliability, credibility and truthfulness.

The Court noted the following points to come to the conclusion that the prosecutrix gave her consent to the act:

  • At the first instance, why did the prosecutrix joined the company of the appellant and Rajat. If Rajat wanted to speak to her and she was not willing for it, she would have simply denied it.
  • According to the prosecutrix, she was in the market. She was not all alone. Instead of Rajat raising alarm, why the prosecutrix did not raise alarm? Why did she join the appellant and the co-accused? In her cross examination, the prosecutrix has categorically stated that she did not raise any alarm.
  • In her statement, the prosecutrix categorically tells that on mutual consent she had gone Pauri. She also bought a beer for herself on the way. It means she was not forced to go to Pauri by the appellant.
  • The room in which the prosecutrix was sleeping in was bolted in from the inside. The appellant called her 2:30 in the night. But she did not inform about it to anyone instead she silently unbolted the door and sneaked into the kitchen suggesting that she was a consenting party. This belies her statement that she was raped forcefully.
  • In her statement, she told that after the incident, she slept quietly. She did not tell about it to anyone in the house she was staying on the next day also.

In view of the above arguments, the Court was of the view that the prosecution could not establish the offence under Section 375 IPC since the act was with the free and voluntary consent of the prosecutrix. The Court further ordered that the appellant be released from jail. [Sanjay Semwal v. State of Uttarakhand, Criminal Appeal No. 265 of 2021, decided on 11-11-2021]


Advocates before the Court:

For Appellant: Mr V.B.S. Negi, Senior Advocate, assisted by Ms Prabha Naithani

For State: Mr Lalit Miglani, A.G.A.

Madras High Court
Appointments & TransfersNews

President appoints (i) Shri Sunder Mohan, and (ii) Shri Kabali Kumaresh Babu, to be Additional Judges of the Madras High Court, in that order of seniority, for a period of two years, with effect from the date they assume charge of their respective offices.


Ministry of Law and Justice

[Notification dt. 3-6-2022]

Appointments & TransfersNews

President is pleased to appoint Shri Sanjay Kumar Mishra, to be a Judge of the Orissa High Court, with effect from the date he assumes charge of his office.


Ministry of Law and Justice

[Notification dt. 3-6-2022]

Case BriefsHigh Courts

Orissa High Court: A.K. Mohapatra, J. directed to process the application for grant of family pension to the transgender woman as expeditiously as possible preferably within a period of six weeks from the date of communication of a certified copy of the order.

The facts of the case are such that the father of the petitioner late Balaji Kondagari was a Government servant working in Rural Development Department under Executive Engineer RW Division, Rayagada. After the death of late Balaji Kondagari his wife was sanctioned the family pension but after she expired due to old age the present petitioner applied for family pension under Rule 56 of the Odisha Civil Services (Pension) Rules, 1992 i.e Rules 1992 to the Executive Engineer RW Division, Rayagada as petitioner and her sister come under the category of unmarried daughter, widow or divorced daughter and as such eligible to get family pension. The present writ petition was filed by the petitioner with a prayer for a direction to the opposite parties to sanction family pension in favour of the petitioner, who is a transgender (women) and unmarried daughter of late Balaji Kondagari within a stipulated period of time.

Counsel for the petitioner submitted that since the petitioner belongs to transgender community, the authorities are treating the petitioner in a discriminatory manner and not sanctioning the family pension as is due and admissible to her after the death of her parents and is in gross violation of the pension rules as provided under rule 56(5)(d) Rules, 1992.

Rule 56(1) Odisha Civil Services (Pension) Rules provides for pension to specific class of family members of deceased Government employee entering into Government service and was holding a post in a pensionable establishment on or before 01.01.1964 and family pension to specific class of family members of the deceased Government servant, who was a Government servant and retired / died on or before 31.12.1963. Further the Pension Rules, 1992 under Rule 56(5)(d) provides that family pension is also payable in case of any unmarried daughter even after attaining the age of 25 years till her marriage or death whichever is earlier subject to condition that the monthly income of the daughter does not exceed Rs.4,440/- per month from employment in Government, semi Government, statutory bodies, corporation, private sector, self-employment shall be eligible to receive family pension.

The Court relied on judgment NALSA v. Union of India, (2014) 5 SCC 438 has recognized the right of the transgender community as citizens of the country at par with other. It was further stated in the judgment

“135.2 Transgender persons’ right to decide their self identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.”

The Court opined that the petitioner as a transgender has every right to choose her gender and accordingly, she has submitted her application for grant of family pension under Section 56(1) of Odisha Civil Services (Pension) Rules, 1992.

The Court directed the authorities to “consider and disburse the family pension within a stipulated period of time.” [Kantaro Kondagari v. State of Odisha, W.P. (C) No.4779 of 2022, decided on 20-05-2022]


Appearances

For Petitioner: Mr Omkar Devdas, S. Dash, A. Suhail and P. Ray

For Opp. Parties: Mr K.K. Nayak


Arunima Bose, Editorial Assistant has reported this brief.

Patna High Court
Appointments & TransfersNews

President appoints S/Shri (i) Khatim Reza and (ii) Dr Anshuman, to be Judges of the Patna High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.


Ministry of Law and Justice

[Notification dt. 3-6-2022]

Jharkhand High Court
Appointments & TransfersNews

President appoints Pradeep Kumar Srivastava, to be an Additional Judge of the Jharkhand High Court, for a period of two years with effect from the date he assumes charge of his office.


Ministry of Law and Justice

[Notification dt. 3-6-2022]

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of the United States (SCOTUS): Elena Kagan, J. has clarified that a party challenging arbitration does not need to prove that it experienced any prejudice in order to establish the other party has waived its right to arbitration by pursuing litigation. The genesis of this deliberation is in the eighth circuit precedent, which had adopted the requirement under which a party waives its right to arbitration to be if it knew of the right; “acted inconsistently with that right”; and “prejudiced the other party by its inconsistent actions.

Factual Background:

The parties, had signed an agreement pursuant to which any employment dispute was to be arbitrated. Subsequently, the petitioner filed a nationwide collective action against the respondent for violating federal laws regarding overtime payment and the same was defended by the respondents. However, later the respondents moved to stay the litigation and compelled arbitration under Sections 3 and 4 of the Federal Arbitration Act (‘FAA’).

It was the petitioner’s argument that the respondent had waived its right to arbitrate by partaking in the litigations. The eighth circuit had rejected the petitioner’s argument on the precedent that there was no harm suffered by the respondent’s delay in compelling the arbitration.

Observations and Decision:

The Bench clarified that the requirement of showing the harm caused/prejudice was not a feature of federal waiver law generally. The eighth circuit along with a handful of others had specifically adopted the prejudice requirement in the arbitration context because of the federal policy that favours arbitration.

Further, it was held that this policy of the FAA does not authorize the federal courts to invent special, arbitration-preferring procedural rules and the courts should refrain from devising novel rules to favour arbitration over litigation.

The Supreme Court reiterated that the intent of the federal policy is not to foster arbitration, but is rather about treating arbitration contracts like any other contract. The courts are not to create arbitrations specific procedural rules.   [Morgan v. Sundance, 2022 SCC OnLine US SC 5, decided on 23-05-2022]


Parties appearing before the Court:

For petitioners: Karla Ann Gilbride

For respondents: Paul D. Clement

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise & Service Tax Appellate Tribunal, New Delhi (CESTAT): The Coram of Dilip Gupta (President) and P.V. Subba Rao (Technical Member), expressed that, service tax can be levied on services rendered by the club to its members.

Factual Matrix


Rajasthan Cooperative Dairy Federation Limited – Appellant was registered under the Rajasthan Co-operative Societies Act, 2001 for implementation of ‘Operation Milk Flood’ in the State and the District Milk Cooperative Societies and milk unions were all members of the appellant.

The Appellant charged an amount @ 1.25% of the annual turnover of milk unions to manage their finances and other services and the said amount was called by the appellant as Rajasthan Cooperative Dairy Federation Cess.

As per the audit report, it was noted that the appellant had started paying service tax on RCDF Cess but had not paid service tax before and that it was liable to pay service tax on RCDF cess before June 2012 under the category of ‘business support services’ under Section 65(104c) of the Finance Act, 1994.

The appellant had paid service tax from July 2012 but had not paid service tax on the RCDF cess for the period prior to this date. Hence, a show-cause notice was issued to the appellant demanding service tax with interest and proposing to impose penalties upon the appellant. The Commissioner passed the impugned order confirming service tax demand of Rs 6,55,25,588 along with interest and penalties were imposed.

In view of the above, the present appeal was filed.

Question for Consideration


Whether the services provided by the appellant to its own members (who are also separate legal entities) can be considered as services provided by one entity to another?

Analysis, Law and Decision

Tribunal found that the Constitution Bench of the Supreme Court in State of W.B. v. Calcutta Club Ltd., (2017) 5 SCC 356, discussed at length the doctrine of mutuality under Article 366 (29A) (e) of the Constitution and held that doctrine of mutuality continues to be applicable to incorporated and unincorporated members’ clubs after the 46th Amendment to the Constitution and, therefore, no sales tax is payable to the State by the Calcutta Club.

Further, it was held that the above-stated logic would apply to service tax levied on members’ clubs.

The law laid down in the above-stated case was that a club and its members are one and the same, therefore any amount paid by the members to the club and the services rendered by the club to its members were self-service and cannot be taxed.

Coram stated that, the fact that the club was incorporated as a separate legal entity made no difference, further it was added that the same principle won’t be applied.

Further, it was expressed that,

“…the nature of the relationship between the appellant and the milk unions continues to that of club to its members.”

Hence, no service tax was payable on the services rendered by the appellant to the milk unions.

Lastly, the Tribunal held that the demand and penalties imposed needed to be set aside. [Rajasthan Co-operative Dairy Federation Ltd. v. Commr., Central Excise, Service Tax Appeal No. 53009 of 2016, decided on 9-5-2022]


Advocates before the Tribunal:

Shri Narendra Singhvi, Advocate for the Appellant

Shri Ravi Kapoor, Authorised Representative for the Respondent

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., quashed an FIR filed for an offence under Section 376 of the Penal Code, 1860 and Section 4 of the POCSO Act, on noting that the dispute was settled and the girl and boy wanted to get married.

In the present matter, the applicant was accused of an offence registered under Section 376 of the Penal Code, 1860 and under Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act).

The above-said offence was registered on the complaint of the father of the victim-girl. He filed the complaint about sexual abuse and sexual harassment of her minor daughter; hence the applicant was arrested, and charge-sheet was also filed.

The dispute was later settled, during the pendency of the prosecution.

Analysis and Decision


High Court on reading the affidavit filed by the victim-girl found that the applicant and the victim were in love with each other and now they decided to marry after settling in life in their respective careers.

The girl’s parents had also filed affidavits and gave an explanation for misunderstanding while lodging the FIR. Further, they added that they have accepted the friendship between their daughter and the appellant. Though the Court did not accept the said explanation.

High Court quashed the FIR for the reasons that both agreed to marry, and the no-objection given by the victim-girl.

Bench added that, when the applicant was in the Court, he was asked about his readiness to marry the victim-girl, and he gave the undertaking to marry her.

Therefore, the application was allowed. [Nauman Suleman Khan v. State of Maharashtra, 2022 SCC OnLine Bom 1148, decided on 29-4-2022]


Advocates before the Court:

Adv. Datta Mane, for the Applicant.

Mr. K. V. Saste, APP for the Respondent-State.

Mr. Hrishikesh P. Hartalkar, for Respondent 2.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Manmohan and Manmeet Pritam Singh Arora, JJ., expressed that, merely because there was a delay of one day in asking for an adjournment, the assessee living outside India cannot be denied his Right to file an objection to Show Cause notice.

The present petition had been filed challenging the order passed under Section 148 A (d) of the Income Tax Act, 1961 and the notice was passed under Section 148 of the Act.

Petitioner’s counsel submitted that the impugned order had been passed without considering the petitioner’s request for adjournment dated 9-4-2022 as well as 12-4-2022 and a detailed reply dated 13-4-2022 to the show cause notice.

Respondents- revenue stated that the adjournment request had not been filed within the stipulated time and therefore, the Assessing Officer was well within its right to pass the order under Section 148A(d) of the Act.

Analysis, Law and Decision


The High Court stated that the petitioner-assessee has a right to get adequate time in accordance with the Act to submit its reply.

“Section 148 A (b) permits the Assessing Officer to suo moto provide up to thirty days period to an assessee to respond to the Show Cause Notice issued under Section 148A(b), which period may in fact be further extended upon an application made by the Assessee in this behalf, and such period given to the assessee is excluded in computing the period of limitation for issuance of notice under Section 148 of the Act in terms of the third proviso to Section 149 of the Act.” 

High Court remarked that since the petitioner-assessee was a resident of the United States of America, the Court was of the view that the delay of one day in asking for an adjournment should not have led to the closure of the right to file a reply to the Show Cause Notice.

The Bench quashed the impugned orders and directed respondent 1 to pass a fresh reasoned order under Section 148 A(d) after considering the reply filed by the petitioner. [Ernst and Young U.S. LLP v. ACIT, 2022 SCC OnLine Del 1529, decided on 20-5-2022]


Advocates before the Court:

For the Petitioner:

Mr S. Ganesh, Sr. Advocate with Ms Soumya Singh and Ms Ananya Kapoor, Advocates.

For the Respondents:

Mr Puneet Rai with Ms Adeeba Mujahid and Mr Karan Pandey, Advocates.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Karamajit Singh, J., directed the State of Punjab not to take “coercive steps” against Raveena Tandon, Farah Khan, Bharti Singh, Screen Abbas Aziz Dalal & Frames Production on their plea, seeking quashing of an FIR registered against them for allegedly hurting religious sentiments during a web show titled as ‘Backbenchers’ released by Flipkart.

Background


The show Backbenchers, which was launched on October 19, 2019, is a one-of-its-kind non-scripted comedy-based web quiz show hosted by Bollywood director Farah Khan. The show invites some of the Bollywood and Sports’ finest and tests their general knowledge through several rounds of written and oral tests.

The alleged incident arose from an unintentional conversation during the quizzing of the two participants, Raveena Tandon and Bharti Singh by the host Farah Khan. In the show Raveena Tandon and Bharti Singh were asked by Farah Khan to spell the word “Hallelujah” and also to disclose its meaning by narrating the same. While Raveena Tandon spelled it correctly but did not explain its meaning or narrate anything as regards to the word,  Bharti Singh not knowing the origin and context of the word, mis-spelled it and referred it to an identical word in Hindi, of which only the pronunciation resembled.

Allegations were raised that, in the said show a joke of the word “Hallelujah” had been made, which played with the religious sentiments of a particular community.

Advocate Abhinav Sood argued that none of the ingredients of the alleged offence under Section 295-A of Penal Code, 1860 of hurting the religious sentiments were made out and there was no deliberate and malicious intention by anyone for outraging the religious feelings of a class.

Further, he contended that the petitioners’ statements could not be perceived to be disrespectful or hurtful to the sentiments of the Christian brothers or do not remotely qualify to constitute the offence under Section 295-A IPC.

High Court while issuing the notice of motion for 05-12-2022 directed that no coercive steps shall be taken by the State of Punjab against the petitioners. [Raveena Tandon v. State of Punjab, CRM-M-44189-2021, decided on 1-6-2022]


Advocates before the Court:

Mr Abhinav Sood, Advocate with Mr Gaurav Shukla, Advocate, Mr Anmol Gupta, Advocate,

Mr Dhruv Chowfla, Advocate, Mr Jashan Mehta, Advocate and Mr Shivjot Arya, Advocate, for the petitioners.

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., while addressing the grievance of some qualified doctors, expressed that, Educational Certificate is not a marketable commodity, therefore, there cannot be exercise of any lien in terms of Section 171 of the Indian Contract Act, 1872.

Factual Background


The petitioners were qualified doctors, who obtained their Post Graduate Degrees in respective colleges (respondents 3 to 8) during the academic year 2018-2021. While obtaining the admission, they had undertaken to serve in Government Hospitals for a period of two years.

Further, they had also executed bonds and after successful completion of their PG Courses, they were called upon to do COVID-19 Duty and worked on a contractual basis for about 10 months, after which they were relieved.

Since the petitioners did not receive any posting orders, they wrote to the respondents demanding the return of their original certificates collected by the respective colleges at the time of admission.

The stand of the respondents was that since the petitioners had not served for a full period of 2 years as per the bond terms and conditions, the original certificates could not be returned.

The above necessitated the filing of the present petition.

The Special Government Pleader strongly contested that the petitioners were bound by the terms of an undertaking that they had voluntarily given with open eyes at the time of admission and cannot be allowed to go back on their undertaking.

Analysis, Law and Decision


High Court noting the submission of the Special Government Pleader stated that the similarly placed candidates were already granted relief and the candidates even though were not able to fulfil the terms and conditions of the bond, they were able to get back their certificates.

The Bench held that the petitioners were entitled to relief for two reasons:

  • It is well settled that an Educational Certificate is not a marketable commodity, therefore, there cannot be exercise of any lien in terms of Section 171 of the Indian Contract Act, 1872. In a catena of decisions, it has been held that the management cannot retain the certificates of the students.
  • A Statutory Authority will have to treat similarly placed persons in the same manner. Failure to do so would be an infraction of Article 14 of the Constitution of India.

Therefore, in view of the above two reasons, the petition was allowed, and the respondents were directed to return the original certificates to the petitioners within 15 days. [Dr S. Giridharan v. State of T.N., 2022 SCC OnLine Mad 2394, decided on 13-5-2022]


Advocates before the Court:

For Petitioners: Mr E. Manoharan

For Respondents: Mr D. Ravichander, Special Government Pleader