Section 340
Case BriefsSupreme Court

   

Supreme Court: While answering the reference questions arising from a reference order of a Division Bench, the 3-judges Bench of Sanjay Kishan Kaul, Abhay S. Oka and Vikram Nath, JJ., held that Section 340 of the CrPC does not mandate a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the CrPC.

Questions Referred

The instant matter arose from a reference made to a three Judges Bench by an order passed in State of Punjab v. Jasbir Singh, (2020) 12 SCC 96, seeking the following questions to be answered:

“(i) Whether Section 340 of the Code of Criminal Procedure, 1973 mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code by a Court?

(ii) what is the scope and ambit of such preliminary inquiry?”

Background

The High Court, by the impugned judgment in Jasbir Singh v. State of Punjab, 2019 SCC OnLine P&H 2965, granted relief to the respondent while dealing with an aspect of forgery in a civil case, on the reasoning that the FIR registered against the respondent-accused did not comply with the mandatory requirements of Section 340 which provides for the procedure in cases mentioned in section 195, particularly because the FIR was filed without any inquiry and without giving any opportunity to the respondent to be heard.

The Reference Order

By the reference order in State of Punjab v. Jasbir Singh, (2020) 12 SCC 96, the Division Bench of the Supreme Court noted that a three Judges Bench in Pritish v. State of Maharashtra, (2002) 1 SCC 253, had held that the purpose of a preliminary inquiry under Section 340(1), CrPC was not to find whether a person is guilty or not but only to decide whether it was expedient in the interest of justice to inquire into the offence. It was thus observed that the Court is not obliged to make a preliminary inquiry on a complaint but if the Court decides to do so, it should make a final set of the facts which is expedient in the interest of justice that offence should be further probed into.

The Division Bench noted that the views of the Court in Pritish’s case (supra) were conflicting with the views of the other 3-judges’ Bench in Sharad Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290, to the extent that in para 7, it was observed that it was necessary to conduct a preliminary inquiry as contemplated under Section 340 CrPC. and also, to afford an opportunity of being heard to the defendants.

The Division Bench, in the reference order simultaneously noted the observations of the Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370, which was post the judgment in Pritish’s case (supra) but prior to the judgment in Sharad Pawar’s case (supra). In the said case, the Constitution Bench had opined:

“In view of the language used in Section 340 CrPC the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words ‘Court is of opinion that it is expedient in the interest of justice.’ This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(i)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice.”

Analysis and Conclusion

In the view of the above, the Court held that the Constitution Bench’s view would naturally prevail which makes the legal position quite abundantly clear. Additionally, the Court noted that what is reported in Sharad Pawar’s case (supra) is only an order giving factual scenario and not a judgment that lays down the principles of law. As a matter of caution, the Court remarked,

“The scenario is that any order or judgment passed by this Court becomes a reportable exercise to create more volumes of reported cases! This thus has a possibility at times of causing some confusion on the legal principles prevalent. The observations in the quoted paragraph extracted aforesaid apparently came out of the flow of the order rather than pronouncing any principles of law and that is why the Bench itself categorized what is observed as an order i.e, in the given factual scenario.”

Hence, the Court concluded that there is no question of opportunity of hearing in a scenario of this nature and the law as enunciated by the Constitution Bench in Iqbal Singh Marwah’s case (supra) is in line with what was observed in Pritish’ case (supra). Further, the Bench noted that interestingly both the aforesaid judgments had not been noted in order passed in Sharad Pawar’s Case (supra).

Consequently, the Court answered the first question negatively. Insofar as the second question is concerned, the Court held that scope and ambit of such a preliminary inquiry already stands resolved in terms of the Constitution Bench judgment in the Iqbal Singh Marwah’s case (supra). The matter is directed to be placed before the regular Bench for consideration on merits.

[State of Punjab v. Jasbir Singh, 2022 SCC OnLine SC 1240, decided on 15-09-2022]


Advocates who appeared in this case :

For Appellant(s): AOR Rooh-e-hina Dua, Advocates Harshit Khanduja, Kanishak Bunderwal, and Ananya Sikri

For Respondent(s): AOR Shubham Bhalla and Advocates Sumeir Ahuja, Akansha Gulati, and Deepak Samota


*Kamini Sharma, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a disturbing case where a German National, who came to India on a 1-year visa for NGO volunteer work alleged of being sexually harassed and arbitrarily served with an exit permit to leave India, N. Nagaresh, J., issued notice to the General Secretary of the NGO and imposed an interim stay on the exit permit.

The petitioner, who was working as a volunteer teacher at an NGO named Sister Hatune Foundation, approached the Kerala High Court alleging sexual harassment against the NGO’s General Secretary (the respondent hereinafter). The woman alleged that the General Secretary of the foundation made sexual advances toward her and committed sexual offences with other girl students of the institution. Apart from that, she also alleged that the General Secretary wrongfully collected fees for imparting lessons to the students, which was not contemplated by the foundation and made the petitioner to live in unhygienic and unreasonable conditions.

The petitioner contended that when she tried to question the conduct of the respondent, he became inimical towards her and fabricated a termination letter of the foundation and conveyed it to the Foreigner Regional Registration Offices (FRRO) who unilaterally, arbitrarily and illegally cancelled her visa which is to be expired on 06-03-2023 without conducting an enquiry or without hearing the petitioner. Resultantly, the petitioner was asked to leave India on or before September 10.

Aggrieved by the premature cancellation of her visa, the petitioner contended that such premature cancellation violates natural justice and United Nations International Covenant on Civil and Political Rights and infringes Article 21 rights guaranteed by the Constitution.

Hence, the petitioner urged the Court to grant urgent interim relief staying the operation of the exit permit and initiate criminal proceedings against the respondent for various criminal offences including Sexual Harassment.

In the backdrop of the above, the Court issued notice to the General Secretary of the NGO, the Central Government, Bureau of Immigration and FRRO. Further, the Court also stayed the exit permit and the FRRO’s order nullifying the petitioner’s visa. The matter is listed on 23-09-2022 for further hearing.

[X v. Union of India, 2022 SCC OnLine Ker 4529, order dated 06-09-2022]


Advocates who appeared in this case :

M/s. Raghul Sudheesh, K.J.Glaxon, J.Lakshmi, Elizabeth Mathew, Amal Jees, Alex, Bini Das, and K.K.Subeesh, Counsels for the Petitioner;

Assistant Solicitor General of India, Counsels for the Respondents.


*Kamini Sharma, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a divorce case where the Family Court had refused to hear the case on priority for early disposal, the Division Bench of A. Muhamed Mustaque* and Sophy Thomas, JJ. on observing that the woman belonged to Muslim community, suggested her to exercise her right to extra-judicial divorce.

The Court opined that the Presiding Officer of the Family Court is the best person to judge the management of the cases pending before the Court.

The petitioner, a 26-year-old lady Muslim woman had approached the Family Court for divorce and recovery of gold ornaments. She had sought for early hearing of the petition in the light of the judgment in Shiju Joy v. Nisha, 2021 SCC OnLine Ker 1391, wherein the High Court had issued guidelines to streamline, the disposal of the pending cases before the Family Court. Family Court was also permitted to depart from the guidelines in appropriate cases.

In the instant case, the Family Court dismissed the petition by stating that the petition being considerably a new case, it could not be prioritized f or disposal. The Family Court further found that there were no sufficient reasons to depart from the normal listing of the case.

Assailing the Family Court’s order, the petitioner contended that her parents are Senior citizens and they are longing for her second marriage after settling all the monetary claims.

The Court noted that the petitioner, being from a Muslim community has every right to invoke extra judicial divorce to separate legal marriage and there was no reason for her to wait at the corridors of the court for having separation of her marriage with the respondent. The Court said,

“When law itself bestowed her with the right to invoke extra-judicial divorce, we are at the dismay, why the petitioner has not chosen to exercise that option. If she really needs legal separation, she could have very well invoked extra-judicial divorce even in the pending matter.”

The Court further observed that if she resorts to extra-judicial divorce, the Family Court record the same in the proceedings pending before it and can very well dispose of the case without further delay as there would be no adjudication required.

In regard to the monetary claims, claim for movables, etc., the Court held that it could not pressurize the Family Court to dispose of such case overlooking the other pending matters. Further, the Court opined that the Presiding Officer of the Family Court is the best person to judge the management of the cases pending before the Court.

Hence, the Court affirmed the order passed by the Family Court and dismissed the instant petition.

[Aayisha A. v. Ahammed Haneefa, OP (FC) No. 90 of 2022, decided on 17-02-2022]


*Judgment by: Justice A. Muhamed Mustaque


Appearance:

For the Petitioner: Advocate B. Mohanlal


Kamini Sharma, Editorial Assistant has put this report together.


Case BriefsSupreme Court

Supreme Court: In a case alleging death of two young girls due to side-effect of Covishield, the Division Bench comprising Dinesh Maheshwari and Bela M. Trivedi, JJ., issued notice to the respondents including Central Government and Central Drugs Standard Control Organization, and the Indian Council of Medical Research.  

The petitioner submitted that her 18-years-old daughter received first dose of Covishield Covid-19 vaccine on 29-05-2021 and lost her life on 19-06-2021. Similarly, 20-years-old daughter of petitioner 2 received the first dose of Covishield Covid-19 vaccine on 18-06-2021 and she lost her life on 10-07-2021. Both the petitioners alleged that after vaccination, the deceased girls suffered from severe Adverse Effects Following Immunization (AEFI).  

Though the petitioners had made representations to the authorities concerned, it had not been adequately replied and the only response from Senior Manager, Clinical Research and Pharmacovigilance Department, Serum Institute of India Pvt. Ltd., Pune was: 

  • “The Covid-19 infection was considered as the cause of Multisystem Inflammatory Syndrome;  
  • That Covishield does not contain SARSCoV-2 virus and cannot cause Covid-19 infection; and  
  • That vaccine is not known to cause Multisystem Inflammatory Syndrome.” 

Hence, the petitioners have prayed for the issuance of a writ of mandamus or any other appropriate writ, order, or direction appointing an expert medical board, independent of the Government, to forthwith inquire into and investigate the deaths of the daughters of petitioners, and to share the report of the autopsy and investigation with the petitioners in a time-bound manner. Further, the petitioners have also prayed for a direction to the above-appointed expert medical board to prepare a protocol for early detection of and timely treatment for the AEFI due to the Covid-19 vaccine such as the ones that led to the deaths of the daughters of petitioners.  

The petitioners also sought for appropriate order directing the Respondents to grant significant monetary compensation to the petitioners, which will be donated to organizations working on social issues.  

The Court opined that though it is appropriate to relegate the petitioners to the appropriate regular remedies in such cases, because the matter might involve the determination of certain basic questions of fact so as to bring it within the four corners of a case of medical negligence, however, having regard to the post-mortem report filed with the additional documents, the submissions that the Government has not responded to the petitioners’ representations, and the nature of reliefs claimed, the Court issued notice to the respondents to file a reply.  

[Rachana Gangu v. Union of India, W.P. (C) No(s). 1220 of 2021, decided on 29-08-2022]  

Appearance: 

For Petitioner(s): Colin Gonsalves, Sr. Advocate, Hetvi Patel, Advocate, and Satya Mitra, AOR 

*Kamini Sharma, Editorial Assistant has put this report together.  

Tags: 

Slug: Covishield-death-by-side-effect-serum-institute-supreme-court-issues-notice-legal-news-legal-updates-pandemic  

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: While adjudicating a divorce case, the Division Bench of A. Muhamed Mustaque and Sophy Thomas*, JJ., raised concern about the rise of live-in-relationships just to say goodbye when they fall apart. Expressing concern about the alarming increase of divorce cases in the State, the Court remarked,

“The wails and screams coming out of disturbed and destroyed families are liable to shake the conscience of the society as a whole. When warring couples, deserted children, and desperate divorcees occupy the majority of our population, no doubt it will adversely affect the tranquillity of our social life, and our society will have a stunted growth.”

A husband, who lost his case for divorce on the ground of matrimonial cruelties had approached the Court to assail the Family Court's order. The husband appellant contended that though they were leading a very cordial and smooth marital relationship till 2018, thereafter the respondent developed some behavioural abnormalities, and she often picked up quarrels with him for no reason. He further alleged that because of the indifferent, abusive, and violent behavior of his wife (the respondent herein), he became mentally stressed and physically ill.

Mental Cruelty

The Court, on analysing the facts and evidence, found that the appellant failed to prove the allegations of cruelty against the respondent so as to dissolve their marriage for the following reasons:

  • As a responsible husband, the appellant was bound to know the reason for such behavioural changes in his wife, whether it be physical, mental, or psychological. He has no case that he ever took his wife to a psychologist or psychiatrist to know the reason for her behavioural abnormalities.

  • The appellant did not disclose/admit that the couple had a love marriage, though his own mother and his own close relative admitted that fact before Court.

  • According to the respondent, her marital life with the appellant was so smooth till 2018 and thereafter, he was trying to avoid her and her children.

  • The mother and close relatives of the appellant categorically deposed that in the year 2017, the appellant developed some illicit intimacy with a lady named Anjali, and thereafter, he wanted to avoid his wife, children, and even his own mother.

  • In such a scenario, the normal human reactions or responses from a wife, on knowing that her husband was having illicit connection with another lady, could not be termed as behavioural abnormality or cruelty from the part of the wife, so as to dissolve their marriage.

  • The appellant was not hesitant, even to question the chastity of his own aged mother, as she was supporting the respondent.

In the light of the aforesaid, the Court opined that the appellant wanted to avoid the respondent and her children to continue his unholy alliance with another woman. The Court noted,

“When the wife had reasonable grounds to suspect the chastity or fidelity of her husband, and if she questions him, or expresses her deep pain and sorrow before him, it cannot be termed as a behavioural abnormality, as it is the natural human conduct of a normal wife.”

Hence, rejecting the appellant's case on the ground of mental cruelty, the Court said,

Courts cannot come to the aid of an erring person to legalise his activities, which are per se illegal. If the husband having unholy alliance with another woman wants to avoid his lawfully wedded wife and his three little children, he cannot seek the assistance of a court of law to get his present relationship legalised by dissolving his lawful marriage, without any valid reasons for the same.”

Non-Cohabitation as a Ground for Divorce

Similarly, considering the respondent's willingness to save the marriage and resume her marital life with her husband, the Court rejected the appellant's case on the ground of non-co-habitation for a long time. The Court relied on Uthara v. Dr.Sivapriyan, 2022 SCC OnLine Ker 921, to hold that non-co-habitation however long it may be, if it was due to deliberate avoidance or due to pendency of cases filed by one party, the other party cannot be found fault with, when that party is still ready to continue his/her matrimonial life, and no grounds recognized by law are established against that party to break their nuptial tie.

Verdict

Emphasizing on the present trend to break the nuptial tie on flimsy or selfish reasons, or for extra-marital relationships, even unmindful of their children, the Court said,

“Now-a-days, the younger generation thinks that marriage is an evil that could be avoided to enjoy free life without any liabilities or obligations. They would expand the word ‘WIFE' as ‘Worry Invited For Ever' substituting the old concept of ‘Wise Investment For Ever'.”

The Court noted that law and religion consider marriage as an institution by itself and parties to the marriage are not permitted to walk away from that relationship unilaterally, unless and until they satisfy the legal requirements to dissolve their marriage through a court of law or in accordance with the personal law which govern them.

Hence, considering that the respondent still wants to live with her husband and live together along with their children, the Court directed that if the appellant is ready to come back to his wife and children, they are ready to accept him, it could not be said that the chances of an amicable reunion are foreclosed forever.

Resultantly, the Court upheld the finding of the Family Court that the appellant is not entitled to a decree of divorce on the ground of matrimonial cruelties.

[Libin Varghese v. Rajani Anna Mathew, Mat. Appeal No. 456 of 2020, decided on 24-08-2022]

*Judgment by: Justice Sophy Thomas


Advocates who appeared in this case :

Mathew Kuriakose, J. Krishnakumar (Adoor), and Moni George, Advocates, Counsels for the Appellant;

B.J. John Prakash, P. Pramel, Nimmy Shaji, and Balasubramaniam R., Advocates, Counsels for the Respondent.


*Kamini Sharma, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: While adjudicating a case related to the Reliance Commercial Finance resolution, the 3-judges Bench comprising Dr. D Y Chandrachud*, Surya Kant, and A S Bopanna, JJ., was posed with a question as to whether the SEBI Standardisation of procedure Circular (13-10-2020) has retroactive application. The Court clarified,

“Many decisions of this Court define ‘retroactivity’ to mean laws that destroy or impair vested rights, in real terms, this is the definition of ‘retrospectivity’ or ‘true retroactivity’.”

On one hand, SEBI argued that the circular will have a retroactive application, on the other, Reliance Commercial Finance Ltd., argued that applying the circular on the instant case would make its application retrospective. The Court held that the SEBI Circular has retroactive application by relying on the following definitions:

In Principles of Statutory Interpretation by Justice G.P. Singh (14th Edn., 2016 at p. 583), it is stated that the rule against retrospective construction is not applicable to a statute merely because “a part of the requisites for its action is drawn from a time antecedent to its passing.” If that were not so, every statute will be presumed to apply only to persons born and things which come into existence after its operation and the rule may well result in virtual nullification of most of the statutes.

Significant Precedents

In Vineeta Sharma v. Rakesh Sharma, 2020 (9) SCC 1, the Court described the nature of prospective, retrospective, and retroactive laws as follows:

“The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backwards and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events.”

Noticing that the terms “retrospective” and “retroactive” are often used interchangeably, though their meanings are distinct, the Court referred to State Bank’s Staff Union (Madras Circle) v. Union of India, (2005) 7 SCC 584, where this difference was succinctly appreciated in the following words:

“’Retroactivity’ is used to cover at least two distinct concepts. The first, which may be called ‘true retroactivity’, consists in the application of a new rule of law to an act or transaction which was completed before the rule was promulgated. The second concept, which will be referred to as ‘quasi-retroactivity’, occurs when a new rule of law is applied to an act or transaction in the process of completion…the foundation of these concepts is the distinction between completed and pending transactions….” (T.C. Hartley, The Foundations of European Community Law 129 (1981)

Conclusion

The Court clarified that though many decisions of the Court define “retroactivity” to mean laws that destroy or impair vested rights, in real terms, this is the definition of “retrospectivity” or “true retroactivity”. “Quasi-retroactivity” or simply “retroactivity” on the other hand is a law that is applicable to an act or transaction that is still underway. Such an act or transaction has not been completed and is in the process of completion. Retroactive laws also apply where the status or character of a thing or situation arose prior to the passage of the law.

[SEBI v. Rajkumar Nagpal, 2022 SCC OnLine SC 1119, decided on 30-08-2022]


*Judgment by: Justice Dr. D Y Chandrachud


Appearance:

For SEBI: N Venkataraman, Senior Counsel & Additional Solicitor General

For RCFL: Darius Khambata, Senior Counsel

For Bank of Baroda: KV Viswanathan, Senior Counsel

For Authum Investment and Infrastructure Ltd.: Dhruv Mehta, Senior Counsel


*Kamini Sharma, Editorial Assistant has put this report together.


Also Read

SC upholds applicability of SEBI Circular; but gives a green signal to Reliance Commercial Finance resolution to avoid “unscrambling of resolution process”

High Court Round UpLegal RoundUp

The High Court Roundup brings a curated list of the top stories of the month to ensure readers do not miss any important updates. This month’s roundup covers the stories of Rights of LGBTQIA+, Bigamy & Talaq under Muslim Law, Non-payment of GST, Deceased’s right to dignity, WhatsApp’s Privacy Policy, Trademark Infringements, and many more:

Allahabad High Court

Top Story—Deceased’s Right to Dignity

The Court in Suo-Moto v. State of U.P., 2020 SCC OnLine All 1088 while dealing with the extremely sensitive matter of Hathras gangrape where dead body of the victim was taken to her native village but surprisingly and painfully enough it was not handed over to the family members so that the last rites of the deceased victim could be performed as per prevalent customs and religious inclinations in a decent and dignified manner but it was cremated with the help of some other persons at about 2- 2.30 a.m.

“The right of dignified life under Article 21 of the Constitution of India is not only available to a living person but also to the ‘dead’. These rights are not only for the deceased but, his family members also have a right to perform last rites as per religious traditions.” Read more…

On the trend of Compromise

Allahabad High Court points out the trend of compromise after receiving the compensation from the State; Suggests disbursement only after conviction. The Court opined,

“Taxpayers’ money is being misused in this process. It would be appropriate to disburse the compensation only on conviction of the accused and not filing of the FIR and submission of the charge-sheet.” Read more…

On Trade Tax

Allahabad High Court upholds order by Trade Tax Tribunal holding insulated glass as taxable unclassified commodity @ 10%. Read more…

On Sidhique Kappan Bail

Charge-sheet and documents adduced prima facie point towards guilt; Allahabad High Court denies bail to journalist Sidhique Kappan [Hathras gang-rape row]. Read more…

On Age Relaxation in Recruitment

Over-aged candidates can neither claim participation in selection process nor seek conduct of recruitment every year as a matter of right. Read more…

On PIL in Service Matters

“PIL in service-related matters ought not to be entertained”; Allahabad High Court dismisses PIL seeking increase in retirement age of PwD. Read more…

On Social, Moral Responsibility to Maintain Wife

Allahabad High Court | Social, Legal and Moral Responsibility of a man to maintain his wife; Appeal dismissed. Read more…

Andhra Pradesh High Court

On Abetment of Suicide

Subba Reddy Satti J. granted anticipatory bail to the Chief Executing Officer (applicant-accused) as on perusal of complaint there was no sign of instigation and abetment and mere allegation of harassment will not attract offence under Section 306 Penal Code, 1860 (‘IPC’) unless such actions compelled the victim to commit suicide. Read more…

Bombay High Court

Top Story—Environment Protection

While perusing the newly framed Policy for Environmentally Safe Making and Immersion of Idols/Tazia and its Enforcement (‘the Policy’), as drafted by Maharashtra Government’s Environment and Climate Change Ministry, the Division Bench of A.S. Chandurkar and Urmila Joshi-Phalke, JJ., observed that the presented Policy which will be operational for this year (2022), must be given adequate publicity so as to create awareness in the public. The Bench also expressed its hope that the local authorities will also take necessary steps to dutifully follow the Policy, so that it achieves its intended targets for this year. Read more…

On Unhygienic Sanitary Conditions of Schools

DLSA’s to conduct surprise inspections in Government schools over unclean and unhygienic sanitary conditions. Bombay High Court takes cognizance of a PIL alleging unclean and unhygienic state of affairs in the washrooms and toilets for the young girl students in Government aided schools. Read more…

On wrongful Arrest of Nigerian National

Bombay High Court grants bail to Nigerian national who spent 2 years in jail on NDPS charges due to a typing error in forensic report; asks State to come up with compensation proposal. Read more…

On Abetment to Suicide

Sudden reaction of a 19-year-old boy to the news of pregnancy, May fall short of the essential ingredients required to form the offence of abetment to suicide: Bombay High Court Read more…

On Rape

Once prosecution has proved the offence of rape, there is no reason for the Trial Court to award a lesser sentence than what the statute prescribes: Bombay High Court Read more…

On SARFAESI

S. 14 of SARFAESI Act empowers the Designated Authority only to assist secured creditors in taking possession of secured assets and nothing more: Bombay High Court Read more…

Calcutta High Court

Top Story—Non-payment of GST

Calcutta High Court stays any coercive action until final decision in matter of arbitrary action of State for non-payment of GST on contracts executed prior GST regime. Md. Nizamuddin, J. directed the respondents authority concerned to consider neutralizing the impact of unforeseen additional tax burden on Government contracts since the introduction of GST w.e.f. 01-07-2017 for ongoing contract awarded before the said date and to update the State SOR incorporating applicable GST in lieu of inapplicable West Bengal VAT henceforth. Read more…

On Arbitration

Conduct of Parties — not a substitute for an arbitration agreement| Calcutta High Court holds the court cannot substitute arbitration agreement with conduct of parties while exercising powers under Section 11 of the Arbitration and Conciliation Act, 1996. Read more…

Illegal procedure for appointment of Arbitrator does not render Arbitration agreement illegal in toto; Guiding Principles for Appointment of Arbitrator reiterated Read more…

Chhattisgarh High Court

On Election

Chhattisgarh High Court declares election null and void for non-disclosure of criminal antecedents, including acquittal in criminal case. In a case where an election was declared null and void on the grounds of non-disclosure of criminal antecedents by the winning candidate, Deepak Kumari Tiwari J dismissed the revision petition being devoid of merit. The Court stated that non-disclosure of criminal antecedents amounts to undue influence and interferes with the free exercise of electoral right. Read more…

Delhi High Court

Top Story—Anti-competitive WhatsApp Terms

Delhi High Court upholds CCI’s direction to investigate alleged anti-competitive WhatsApp Terms of Service and Privacy Policy, 2021; Prima facie case established to investigate; FB a proper party. The appeals were filed by WhatsApp and its parent company Facebook challenging the jurisdiction of Competition Commission of India (CCI) to direct investigation into the 2021 Terms of Service and Privacy Policy of the Appellant on the ground that it violates the provisions of the Competition Act, 2002, when the matters arising from the same issue is pending before Supreme Court. Read more…

On Copyright Infringement

Delhi High Court denies injunction against News Laundry Media on allegations of copyright infringement, defamation and commercial disparagement by TV Today Network. Commenting on commercial disparagement, the Court said,

“Commercial Disparagement would occur when one player in the field derides a rival and belittles or discredits or detracts from the reputation of such a rival in respect of its products, services or business. While claiming to be the best, any statement about a competitor’s goods, which could be untrue or misleading and is made to influence or tend to influence the public, would amount to disparagement”. Read more…

On False Rape

Delhi High Court reprimands filing false FIR alleging rape charges; Directs woman to work at blind school; Directs man to plant 50 trees as punitive measure. Read more…

On Trademark Infringement

Theo recognizes Theobroma as owner and proprietor of mark “THEOBROMA”; Settlement terms agreed between parties. Read more…

Delhi High Court injuncts Royal Champ from using Royal Stag/ Seagram marks; Similar label also amounts to copyright infringement; Directs Rs 20 lakh as damages . Read more…

Delhi High Court grants ad-interim injunction against Bikaner’s Madhav Namkeens having deceptively similar logo as of Pepsico’s Lays. Read more…

Delhi High Court injuncts myshoeshop from violating trademark rights by selling first copy shoes of NB Device mark as well as Adidas, Nike, Louis Vuitton etc. Read more…

On Flipkart’s “Latching On” Feature

Delhi High Court restrains Flipkart from allowing third-party sellers to ‘latch on’ to mark ‘V Tradition’; Directs to ensure ‘Latching On’ feature is disabled. Read more…

On Chinese Manjha

Delhi High Court denies complete ban on kite flying but directs to comply directions already in place against use of Chinese Maanjha. Reade more…

On Non-compliance of Sports Code

Compliance with Sports Code non-negotiable; Delhi High Court warns IOA of derecognition if compliance with Sports Code is not made; Temporary CoA constituted. Read more…

On Criminal Liability of Intermediary

Intermediary entitled to claim protection u/s 79 IT Act for criminal liability unless ‘active role’ is disclosed; Delhi High Court quashes FIR against Flipkart. Read more…

On Legitimate Expectations of Students

Delhi High Court grants relief to a student seeking admission in BITS Pilani after CBSE violates ‘legitimate expectation of the students’. Read more…

On POCSO

Judicial scrutiny of date of birth for establishing consensual sexual relation not necessary; Delhi High Court grants bail in light of accused being honey trapped Read more…

Gujarat High Court

Top Story—On Right to Medical Claim

Gujarat High Court reiterates right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order; Reimbursement directed. The Court stated,

“The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds.” Read more…

On Electricity

‘Occupier’ of the land cannot be denied electricity connection only because land is in dispute. Read more…

On Pharmacy Diploma

Students of Diploma in Pharmacy Course can’t be denied registration as Pharmacists on Council’s failure to approve medical stores for training. Read more…

Himachal Pradesh High Court

Top Story—Family Pension to Second Wife

In a petition related to family pension, Jyotsna Rewal Dua, J has held that the second wife of a deceased employee is not entitled to family pension under the Central Civil Services (Pension) Rules, 1972 unless the personal law of the deceased employee allows more than one subsisting marriage. Read more…

On MV Compensation

Himachal Pradesh High Court | Inability to produce documentary evidence of deceased’s income may not justify adoption of lowest tier of minimum wage for computing Motor Vehicle Accident compensation. Read more…

Jammu & Kashmir and Ladakh High Court

Top Story—Right to Property

While deciding the instant petition wherein the issue was that whether misuse of a building from residential to commercial or vice versa in violation of the permitted land use as per the master plan would fall within the ambit of unauthorized ‘erection or re-erection’; the Division Bench of Wasim Sadiq Nargal and Tashi Rabstan, JJ., observed,

“In a democratic polity governed by the rule of law, the State by no stretch of imagination, can deprive a citizen of his/her property without the sanction of law, besides complying with the procedure envisaged in the statutory provision.” Read more…

On Matrimonial Crimes

Courts must carefully scrutinize the allegations of matrimonial crimes against a husband’s relatives. Read more…

On Compassionate Appointments

Compassionate Appointments are not for conferring status on a family; Jammu and Kashmir and Ladakh High Court holds an applicant has no right to claim a compassionate appointment in a particular class or group and it is not for conferring status on the family. Read more…

Jharkhand High Court

On Renewal of Competency Certificate

Past record of competent person for renewal of competency certificate held to be a relevant consideration for renewal; Petition dismissed. Read more…

On Income Tax

Liability cannot be fastened upon the company for delay in TDS when it had taken steps within time. Read more…

Karnataka High Court

Top Story—Eidgah Maidan Controversy

In a case where the State has filed an appeal to seek modification in an interim order passed by Single Judge giving permission for using Eidgah Maidan, the land under challenge for title, for celebrating Independence Day/Republic Day or as a public playground or for offering prayers by Muslim community only in Ramzan and Bakri Eid festivals, a Division Bench of Abhay Shreeniwas Oka CJ., and Vishwajith Shetty J. permitted the State Government to consider applications filed by organizations seeking use of the land in question for holding religious and cultural activities. Read more…

On Bhang under NDPS Act

In a case where the applicant-accused seeks bail on being apprehended by police, having possession of Ganja and Bhang together, K Natarajan, J. granted bail to the applicant as Bhang will not be considered along with Ganja to measure commercial quantity. The Court held that until forensic science lap report does not confirm that Bhang is prepared out of charas or ganja, it is not safe to conclude the same. Read more…

On Azan & Fundamental Right to Faith

A Division Bench of Alok Aradhe CJ., and S. Viswajith Shetty, J., held that azan or the contents of azan does not violate fundamental rights of petitioner of any person from a different faith. The use of loudspeakers, however, must be ensured to be within permissible limits from 10pm to 6 am in accordance with law. Read more…

On Wrongful Arrest

Karnataka High Court appalled to see a case of wrongful arrest as fathers’ name was similar; Directs DGP to issue SOP/Guidelines if not in place; Compensates aggrieved. Read more…

On POCSO

Pulling down pants of kid forcefully as a punishment measure; Karnataka High Court denies relief u/s 482 CrPC to the female teacher. Read more…

On Minimum Wage

Whether Head cooks and cooks employed under Mid-Day Meal Scheme covered under Minimum Wages Act, 1948? Karnataka High Court analyses Read more…

Kerala High Court

Top Story—Mental Cruelty

In a divorce case, Anil K. Narendran and C. S. Sudha, JJ., held that constant and repeated taunts by the husband towards his wife that she is not a wife of his expectations; the comparisons with other women, etc. would certainly be mental cruelty which a wife cannot be expected to put up with. Read more…

On Transgenders Right to Participation in Sports

In a case where a transgender person was declined participation in District Judo Competition, V.G. Arun, J., held that if the organisers have not made arrangements for participating transgenders, they have to allow the petitioner to participate in her chosen category. Read more…

On Talaq and Bigamy under Muslim Law

In a case relating to talaq as per Muslim personal law and bigamy, A. Muhamed Mustaque, J. held that the Family Courts have no jurisdiction to restrain a person from pronouncing talaq or conducting a second marriage as per personal law. The Court remarked,

“The Court has no role in restraining the parties invoking their personal law remedies. The Court should not forget the mandate of Article 25 of the Constitution, which not only allows one to profess religion but also to practice.” Read more…

On Road Safety

Can’t let the roads of Kerala be a killing field; Kerala HC issues directions to NHAI and District Collectors to ensure the roads are craters & potholes free. Read more…

On Medical Termination of Pregnancy

Kerala HC allows a 14-year-old girl to get medical termination of her 28-week pregnancy. Read more…

On Offence of Insulting National Flag

Kerala HC grants anticipatory bail to BJP State General Secretary accused of insulting National Flag by holding it upside down. Read more…

On Rights of PWD

Kerala HC issues notice to Centre & State in a PIL seeking extension of facilities to every person with disability in need of special assistance irrespective of percentage of disability. Read more…

Madhya Pradesh High Court

Top Story—Order XLVII Rule 9

The Division Bench of Ravi Malimath, CJ. and Vishal Mishra, J. dismissed a second review petition holding that pursuant to the provision under Order XLVII Rule 9 Civil Procedure Code, 1908 (CPC), a review of an order passed in a review petition is not maintainable. Read more…

On Illegal Detention

Madhya Pradesh High Court directs State to pay 3 lacs as compensation for illegal detention; Registrar to conduct an inquiry Read more…

On Modification of Criminal Charges

Madhya Pradesh High Court| Charge of Murder added at the time of framing of charge based on Hospital’s MLC can be altered only after further examination. Read more…

Madras High Court

Top Story—Medical Examination for Impotency

In a case where husband filed for annulment of marriage alleging suppression by wife regarding her hormonal imbalance and irregular periods resulting in non-consummation of marriage, R N Manjula J. quashed Family Court’s ruling that directed the wife ‘revision petitioner’ to undergo medical examination of the same and even went ahead to direct medical examination of her genitals which was beyond the scope of the original petition. Read more…

On Removal of Husband from Matrimonial Home

n a case of marital discord and petitioner-wife, a practicing advocate was seeking removal of respondent-husband from the matrimonial home, R N Manjula, J. granted protection order and directed the husband to move out of the matrimonial home in the best interest and welfare of the children and to ensure peaceful possession and enjoyment of the petitioner wife in the home in any manner. The Court said,

“Allowing the respondent to be at the same home but directing him that he should not disturb the other inmates of the home is something impractical. A relief for a person who fears about an impending atom bomb, would be just to remove the bomb from his/her vicinity.” Read more…

On Virtual Wedding

Virtual wedding would meet the requirements of law under S. 12 of Special Marriage Act, 1954. Read more…

On Doctrine of Substantial Compliance

Madras High Court applies doctrine of ‘substantial compliance’ to determine implications of limitation period in the Customs Act, 1962. Read more…

On Nalla Thangal Syndrome

Madras High Court condemns a scornful society that sees misfortune with the birth of a girl child and reduces punishment in the instance of ‘Nalla Thangal Syndrome’. Read more…

On Colonial Slavery

Extracting household work by trained uniformed Police personnel in the residences of the higher Police officials; Madras High Court calls it ‘colonial’ and slap on Constitution and democracy. Read more…

On Orderly System

‘Orderly system’ unconstitutional: Madras High Court directs Tamil Nadu government to eradicate it completely in four months. Read more…

On Appointment of Archaka

Madras High Court holds the temple or group of temples which were constructed as per the Agamas would be governed by the custom and practice, not only in respect of the worship of the deity, but in all respects, which includes even the appointment of Archakas, and not by the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020. Read more…

On Rights of LGBTQIA+

Madras High Court| LGBTQIA+ community sidelined from society’s mainstream for too long; Time for Tamil Nadu Government to frame guidelines to protect their rights. Read more…

On Criminal Procedure

PT warrant can never be converted into regular warrant in a case where the accused person is already on bail; opportunity should be given to the accused to explain his non-appearance Read more…

Meghalaya High Court

On Consensual Sex with Minor Wife

W. Diengdoh, J. allowed a petition where a man was arrested under the provisions of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) for allegedly having ‘consensual sex’ with his minor wife. The Court opined that it would be an injustice to separate or to divide a well knitted family unit. Read more…

Manipur High Court

On Accused’s Right to Dignity

In a case where the criminal appeal was pending and the applicant convicted under Section 6 of the Protection of children from sexual offences Act, 2012 (POCSO Act) filed an application for the suspension of sentence, on the ground of ill-health, M.V. Muralidaran, J. observed,

“Under-trial prisoner’s right to life does not diminish even a wee bit when in jail as an accused/convict for an offence and such person’s health concerns have to be taken care by the State and if not done so, by the judiciary. The right to dignity of an accused does not dry out with the Judges. Rather, it subsists beyond the prison gates and operates until his last breath”. Read more…

Orissa High Court

On Tortious Liability of State

Unfortunate death of 7-year-old girl by collapse of newly constructed kitchen wall in school; Orissa High Court directs compensation to the family of the deceased. The Court noted,

“The negligence of the State authorities in using defective materials to construct a kitchen on the school premises has already been established during the enquiry. The death of the young child was totally avoidable. The responsibility for death definitely rests with the State. The death would not have occurred if all the safety measures, that were instructed to be put in place by the State, had been strictly followed.” Read more…

Punjab and Haryana High Court

Top Story—Downgrading of VIP security Cover

Withdrawal/Downgrading of VIP security cover: Punjab and Haryana High Court directs State to make fresh assessment of security threats; Provide one security personnel until then. The Court said,

“Security issue is not a static phenomenon, rather it is a dynamic process. The security reviews have to be done on a periodical basis by assessing the security threat of the protectees with the passage of time on the basis of official inputs provided by the different agencies including State and Central agencies”. Read more…

On Arbitration

Merely showing existence of another reasonable interpretation not sufficient to allow for interference; Punjab and Haryana HC refuses to interfere with arbitration award. Read more…

On Co-ownership

Possession of joint land by one co-owner valid in absence of proof showing disagreement between other co-owners. Read more…

Rajasthan High Court

On Arms License

Vijay Bishnoi, J. held the appeal filed by District Magistrate before Divisional Commissioner under Section 18 of Arms Act, 1959 challenging the issuance of arms license in favour of the petitioner who was the holder of license, as non — maintainable. The Court noted that a bare perusal of Section 18 Arms Act, 1959 clearly reveals that there is no provision where appeal can be entertained under Section 18 of the Arms Act against the order of issuance of arms license. Read more…

Tripura High Court

On Allotment of Land

In suit for recovery of possession of land, the Tripura High Court observed that,

“It is not for this Court to decide the validity of the allotment of land by the Government in favour of the respondents in this second appeal. If there is any violation of conditions or attraction of disqualifications, it is for the appropriate authorities to look into the matter.” Read more…

On Conviction

Mere presence of the accused person and last seen of the offence cannot draw an inference to committing of the crime ; Conviction reversed Read more…

On Employees’ Dues

Tripura High Court directs TSECL to pay all the cumulative dues to employee who suffered accident while discharging duty. Read more…

Uttaranchal High Court

On Service Rules

Uttaranchal High Court holds non-communication of all the Service Rules does not indicate that there are no Rules. The Division bench of Vipin Sanghi, C.J., and R.C. Khulbe, J., had held that merely because the communication sanctioning a post does not indicate the promotion rules, does not mean that there are no Rules framed or applicable for promotion, requiring minimum service in the feeder cadre. Read more…


*Kamini Sharma, Editorial Assistant has put this report together.

Legal RoundUpWeekly Rewind

 


TOP STORY OF THE WEEK


Right to Abortion no longer a Constitutional right in the USA

In a far-reaching decision concerning American women’s right to abortion, the Supreme Court of the United States, has held that the Constitution of the United States does not confer any right to obtain abortions. The judgment decisively overrules the landmark SCOTUS ruling of Roe v. Wade, 1973 SCC OnLine US SC 20, which granted this constitutional right in the first place and also Planned Parenthood of Southeastern Pennsylvania v. Casey, 1994 SCC OnLine US SC 11 which upheld Roe. Furthermore, by this mandate the authority to regulate abortion is returned to the people and their elected representatives.

While Chief Justice Roberts agreed with the majority opinion that the viability line established by Roe and Casey should be discarded, he however took a “measured course” and said that the right should extend far enough to ensure a reasonable opportunity to choose but need not extend any further certainly not all the way to viability.

However, the dissenting opinion termed the decision to be catastrophic and stated that the majority has given the ruling out of despise and has substituted a rule by judges for the rule of law. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other,

The dissent concluded with the following words,

“With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”

Detailed Analysis: SCOTUS| United States’ Constitution does not confer any right to abortion; Roe v. Wade overruled after 49 years

Also read: “With sorrow—for this Court, but more, for the many mil­lions of American women…we dissent.” Read SCOTUS dissent on Right to Abortion case 


APPOINTMENTS AND TRANSFERS


6 High Courts get new Chiefs

6 High Courts have got new Chief Justices. While Telangana High Court’s current Chief, Justice Satish Chandra Sharma will now be assuming the charge of the Chief Justice of the Delhi High Court, 5 judges have been promoted to be the Chief Justices of Gauhati, Rajasthan, Uttaranchal, Himachal Pradesh and Telangana High Courts.

Full Story: 5 Appointments and one Transfer lead to 6 High Courts getting new Chiefs


SUPREME COURT


Clean Chit to PM Modi in 2002 Gujarat Riots

Supreme Court has dismissed Zakia Jafri’ss plea challenging the clean chit given to Prime Minister Narendra Modi by the Special Investigation Team in 2002 Gujarat riots case. The Court observed that no fault can be found with the approach of the SIT in submitting final report back in 2012, which is backed by firm logic, expositing analytical mind and dealing with all aspects objectively for discarding the allegations regarding larger criminal conspiracy (at the highest level) for causing and precipitating mass violence across the State against the minority community.

Detailed Analysis: “SIT Officials have come out with flying colours unscathed despite all odds”; Read SC’s key observations while upholding SIT’s clean chit to PM Modi in 2002 Gujarat riots

Man set free in a 28-year-old honour killing case

In 1994, a young couple belonging to different castes was found hanging from a tree after having gone missing for days. The love affair did not sit well with the girl’s father and uncle. It was alleged her uncle had killed both of them and had kept the bodies in the house for 3 days, after which he had taken the bodies to the cashew nursery and had hung them on a cashew tree to give it the shape of them having committed suicide.

Noting that the prosecution had miserably failed to bring home the charges levelled against the accused beyond reasonable doubt, the Court observed that conviction could not be based on a very weak kind of evidence of extra judicial confession by the co-accused and the theory of “Last seen together” propounded by the prime witness.

Detailed Analysis: No conviction based on ‘last seen together’ theory when possibility of suicidal death not ruled out; SC sets man free in a 28-year-old honour killing case


HIGH COURTS


Bombay High Court| Unmarried major Daughter’s right to maintenance

In a case where a father had refused to maintain his unmarried major daughter on the ground that the daughter was earning Rs.72 lakhs to Rs.80 lakhs by merely posting photographs on Instagram, the Bombay High Court has held that the father had the responsibility to maintain his daughter and her Instagram biography is not enough to prove that she has independent and sufficient income.

The Court remarked,

it is a well-known fact that it is the habit of the youth of today to project a glossy picture and post the same in the social media though its contents may not always be true.”

Detailed Analysis: Bombay High Court| Unmarried major Daughter entitled for maintenance from her father; Glossy life on Instagram does not prove independent and sufficient income

Orissa High Court | Vigilance Department vis-à-vis Right to Information

The Orissa High Court has held that the Government of Odisha cannot deny information pertaining to the Vigilance Department involving allegations of corruption and human rights violations, and other information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department. The Court held that if under the RTI Act disclosure is the norm, and non-disclosure is the exception, then the notification by the Odisha Government’s Information and Public Relations Department seeks to take away what is provided by the RTI Act and is therefore ultra vires the RTI Act.

Detailed Analysis: Orissa High Court | Notification exempting Orissa Vigilance Department from the purview of RTI is ultra vires of RTI Act, 2005

Patna High Court| Right to Sanitation a fundamental right

Sanitation is personal and private, inextricably linked to human dignity. At the same time, sanitation has an essential public health dimension. The Patna High Court observed that the right to sanitation comes within the scope of Article 21 and therefore, directed the State, National Highway Authority of India (NHAI), and Oil Marketing Companies (OMC) to construct public toilets and public conveniences on highways across the state of Bihar.

Detailed Analysis: Right to Sanitation a fundamental right: Patna HC issues directions to Bihar Govt and NHAI to construct “Public toilets” on highways


NATIONAL COMMISSIONS


NCDRC| Women with sponge left in abdomen after Caesarean Surgery gets Rs. 5 Lakhs Compensation

In a consumer dispute where a woman had alleged medical negligence on part of the doctors who had left a sponge in her abdomen after performing a Caesarean surgery; NCDRC has held that, since a foreign body was left in the system of the complainant during the surgery, it clearly indicated a failure of reasonable degree of care and thus it constitutes medical negligence. As a result, the woman will now get the compensation of Rs. 5 lakhs.

Detailed Analysis: Infected sponge left in the abdomen of a woman post Caesarean surgery, constitutes medical negligence; NCDRC directs compensation of Rs. 5 lakhs to the aggrieved party


LEGISLATIONS


TDS exemption on rent of ‘aircraft’ leased out by IFSC units on certain conditions

The Central Board of Direct Taxes (CBDT) has exempted TDS on lease rentals under Section 194-I of Income Tax Act, 1961 paid to Aircraft Leasing Units. The Notification will come into force on July 1, 2022. The Exemption is applicable on certain conditions. You can read the same on the SCC Online Blog.

Full Report: CBDT notifies exemption of TDS on rent of ‘aircraft’ leased out by IFSC units on certain conditions

Registration of Electors (Amendment) Rules, 2022

Central Government, after consulting the Election Commission of India has notified Registration of Electors (Amendment) Rules, 2022 A new Rule has been inserted which provides Merger and integration of list of amendments. The rule provides that the list of amendments prepared with reference to the qualifying dates shall be merged and integrated with the last finally published roll and published as draft roll, before every election and bye-election and shall be put in public domain with reference to the qualifying date, proximate to the said election, as the Election Commission may direct.

Full Report: Centre notifies linking of Aadhaar with electoral roll vide Registration of Electors (Amendment) Rules, 2022

NFRA Amendment Rules, 2022

The National Financial Reporting Authority Amendment Rules, 2022 introduces the penalty in case of non-compliance of the provisions of the Rules. Whoever contravenes any of the provisions of these rules, shall be punishable with fine not exceeding five thousand rupees, and where the contravention is a continuing one, with a further fine not exceeding five hundred rupees for every day after the first during which the contravention continues.”.

Full Report: MCA introduces maximum penalty upto Rs. 5000 in case non-compliance of NFRA Rules, 2018 vide NFRA Amendment Rules, 2022


Curated and presented by Prachi Bhardwaj, Associate Editor, EBC Publishing Pvt. Ltd. 

SCC Part
Cases ReportedSupreme Court Cases

2022 SCC Volume 4 Part 4 encapsulates, a very interesting decision of the Supreme Court in Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497, wherein while criticizing the practise of granting cryptic bail in a casual manner, the Bench expressed,

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

Short Notes: 6


Bihar Public Works Contracts Disputes Arbitration Tribunal Act, 2008 (21 of 2008) — Ss. 9(1), 8 and 2(1) — Reference to Arbitration Tribunal: In view of S. 8 of the 2008 Act, if any of provisions of 2008 Act are in conflict with 1996 Act, latter shall prevail to the extent of conflict. When there is no arbitration clause in agreement between parties, provisions of 1996 Act will have no application. Therefore, reference to Arbitration Tribunal will be governed by 2008 Act. [Bihar Industrial Area Development Authority v. Rama Kant Singh, (2022) 4 SCC 489]

Civil Procedure Code, 1908 — S. 100 and Or. 9 R. 13 — Second appeal — Proper mode of disposal — Matters at large in second appeal — Ex parte decree: In this case, second appeal was filed against dismissal of first appeal for default on ground of delay, without any decision on merits in such first appeal. Only permissible course before High Court, held, was to consider validity of such first appellate order. High Court in second appeal, held, erred in treating the matter as an application under Or. 9 R. 13 and setting aside ex parte decree itself, and remanding suit to trial court for decision afresh on merit. [Mamtaz v. Gulsuma, (2022) 4 SCC 555]

Civil Procedure Code, 1908 — S. 25: In this case transfer petition was filed by wife and divorce proceedings were initiated by respondent husband in the Family Court at Chennai 600 km away from Hyderabad, where wife resides. Application of wife seeking transfer of proceedings to Hyderabad, allowed. [Pooja Rathod v. Tarun Rathod, (2022) 4 SCC 514]

Constitution of India — Art. 226 — Writ appeal — Proper mode of disposal — Connected/Related matters — Consolidated disposal — Challenge to land acquisition: All appeals relating to the same acquisition notifications, held, should have been heard and decided together. Hence, this appeal was remanded for decision afresh, to be heard together with the appeals relating to the same acquisition notifications. [M.P. Housing Board v. Satish Kumar Batra, (2022) 4 SCC 559]

Constitution of India — Arts. 25, 21, 14 and 19 — COVID-19 Pandemic — Funeral rights of Parsi Zoroastrian community: In this case, due to concern over public health and safety while preserving the sanctity of the Zoroastrian faith, funeral rights allowed under amicably agreed upon protocol and standard operating procedure (SOP) permitting the claim of Parsi Zoroastrian community to conduct their funeral rights in the Dokhma (Tower of Silence) while complying with the safety standards required during COVID-19 Pandemic. [Surat Parsi Panchayat Board v. Union of India, (2022) 4 SCC 534]

Criminal Procedure Code, 1973 — S. 439 — Grant of bail under S. 439 — Necessity of recording reasons — Extent to which reasons are required in a bail order — Principles clarified: Grant of bail under S. 439 though being a discretionary order, but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course and, thus, order for bail bereft of any cogent reason cannot be sustained. Therefore, prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case and, thus, serious nature of accusations and facts having a bearing in the case cannot be ignored, particularly, when the accusations may not be false, frivolous or vexatious in nature but supported by adequate material brought on record so as to enable a court to arrive at a prima facie conclusion. [Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497]

Criminal Procedure Code, 1973 — S. 482 — Inherent powers under — Power of quashing of criminal proceedings — When should be exercised: Power of quashing of criminal proceedings should be exercised very sparingly and with circumspection and that too in rarest of rare cases and it is not justified for Court in embarking upon enquiry as to reliability or genuineness or otherwise of allegations made in FIR or complaint. Inherent powers do not confer any arbitrary jurisdiction on Court to act according to its whims and fancies. [Shafiya Khan v. State of U.P., (2022) 4 SCC 549]

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 — Ss. 7-A and 14-B — Failure to deposit contribution — Imposition of damages for delayed payment: Breach of civil obligations/liabilities committed by employer is sufficient for imposition of penalty or damages. There is no further requirement on authority concerned to examine existence of element of actus reus/mens rea or to examine issue of justification, for imposing damages. [Horticulture Experiment Station v. Provident Fund Organization, (2022) 4 SCC 516]

Insolvency and Bankruptcy Code, 2016 — S. 12-A r/w Ss. 9 and 25(2)(e): Withdrawal of CIRP proceedings, when permissible and proper, explained. [K.N. Rajakumar v. V. Nagarajan, (2022) 4 SCC 617]

Insurance — Contract of Insurance/Policy/Terms/Cover Note — Duties of parties/Uberrima Fides/Uberrimae Fidei/Claim to Insurance money/Insurer’s liability — Obligation to disclose material facts — Mutuality of: Principle of uberrimae fidei i.e. principle of utmost good faith, held, imposes meaningful reciprocal duties owed by the insured to the insurer and vice versa. That is to say, just as the insured has a duty to disclose all material facts, the insurer must also inform the insured about the terms and conditions of the policy that is going to be issued to him and must strictly conform to the statements in the proposal form or prospectus, or those made through his agents. [Manmohan Nanda v. United India Assurance Co. Ltd., (2022) 4 SCC 582]

Insurance — Contract of Insurance/Policy/Terms/Cover Note — Exemption/Exclusion/Restriction/Limitation/Forfeiture Clauses/Negative Covenants: Law surveyed in detail and general principles, summarized regarding when exemption clause may be given effect to, and when may be negated or not given effect to. [Shivram Chandra Jagarnath Cold Storage v. New India Assurance Co. Ltd., (2022) 4 SCC 539]

Insurance — General Insurance — Theft, Burglary and Property Loss Insurance: Delay in informing theft to insurer i.e. alleged violation of a condition of insurance contract in this regard is insufficient to deny claim of insured when FIR regarding theft lodged and also accused arrested and charge-sheeted i.e. when the claim is otherwise genuine and not disputed to be genuine by insurer. [Jaina Construction Co. v. Oriental Insurance Co. Ltd., (2022) 4 SCC 527]

Penal Code, 1860 — S. 34 — Applicability of — When attracted: To attract applicability of S. 34 prosecution is under obligation to establish that there existed common intention which requires prearranged plan. Before a person can be vicariously convicted for criminal act of another, act must have been done in furtherance of common intention of all. In absence of prearranged plan and thus a common intention, even if several persons simultaneously attack the man each one of them would be individually liable for whatever injury he caused and none could be vicariously convicted for act of any or the other. Thus, it is necessary either to have direct proof of prior concert or proof of circumstances which necessarily lead to that inference and incriminating facts must be incompatible with innocence of accused and incapable of explanation or any other reasonable hypothesis. [Indrapal Singh v. State of U.P., (2022) 4 SCC 631]

Prevention of Corruption Act, 1988 — S. 7 — Offence under — When established: Offence under S. 7 relating to public servants taking bribe requires proof of: (a) demand of illegal gratification, and (b) acceptance thereof. Proof of demand of bribe by public servant and its acceptance by him, both are a sine qua non for establishing offence under S. 7. [K. Shanthamma v. State of Telangana, (2022) 4 SCC 574]

Service Law — Promotion — Entitlement to: In this case appellants were promoted as Assistant Director (Official Language) on ad hoc/officiating basis during years 1993-95 and 2000. High Court by impugned judgment recalled judgment dt. 4-11-2011 and affirmed order of Tribunal directing promotion of appellants in accordance with the 2002 Rules on ground that in Mishri Lal, (2011) 14 SCC 739 it was held that the 2002 Rules were not implemented. Said order was held unsustainable. [Medini C. v. BSNL, (2022) 4 SCC 562]

Service Law — Retirement/Superannuation — Retiral benefits — Delay in payment — Entitlement to interest: Where there is delay in paying retirement dues to retired employee, for no fault of his, he is entitled to interest on delayed payment. [A. Selvaraj v. C.B.M. College, (2022) 4 SCC 627]

SCC Part
Cases ReportedSupreme Court Cases

2022 SCC Volume 4 Part 3, consists a very pertinent decision of the Supreme Court wherein it was held  that it cannot be said that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property as such interpretation will be against the provisions Section 83(1) of Act.Read the detailed Judgemnt here:  Rashid Wali Beg v. Farid Pindari, (2022) 4 SCC 414]

Short Notes: 3


Arbitration and Conciliation Act, 1996 — Ss. 34 and 5: Award on issues/matters beyond the scope of the arbitration clause which was invoked, as the issues/matters in question pertained to another distinct agreement, arbitration clause in which latter agreement was not invoked, is not valid. Award on lease rental and lease duration i.e pertaining to lease agreement is not permissible, when arbitration has been invoked under dealership agreement. [Indian Oil Corpn. Ltd. v. Shree Ganesh Petroleum, (2022) 4 SCC 463]

Central Goods and Services Tax Act, 2017 — Ss. 39, 16, 49(2) and 59 — Circular No. 26/26/2017-GST dt. 29-12-2017: Rectification of return, on the premise of Form GSTR-2A being non-operational at the relevant time is not permissible. [Union of India v. Bharti Airtel Ltd., (2022) 4 SCC 328]

Criminal Procedure Code, 1973 — S. 482 — Prayer for directions for conduct of impartial investigation: Interim order(s) cannot be passed by High Court, particularly without hearing the affected part(ies). [OLX India B.V. v. State of Haryana, (2022) 4 SCC 390]

Evidence Act, 1872 — Ss. 65-A and 65-B: Copies of electronic evidence are sufficient when duly certified as per S. 65-B. The fact that original electronic evidence was one of the exhibits of the evidence on record, but not played in court, and only the certified copies thereof were played in court, is of no effect. [Taqdir v. State of Haryana, (2022) 4 SCC 321]

Government Contracts and Tenders — Formation of Government Contract — Enlistment/Blacklisting/Downgrading of Contractor/Tenderer — Blacklisting/Debarment: Period of blacklisting, further held, has to be proportionate to nature of offence(s) committed by erring contractor. Tentative decision to blacklist erring suppliers/contractors taken after assessing available materials prior to issuance of show-cause notice cannot be treated as pre-determined decision. Order of blacklisting passed after providing opportunity of hearing thereafter, held, cannot be called as violating principles of natural justice. [State of Odisha v. Panda Infraproject Ltd., (2022) 4 SCC 393]

Service Law — Dismissal/Discharge — Grounds for dismissal/discharge — Dismissal — Proportionality: As allegations of fraud committed by employee concerned on employer Bank were fully established, superannuation of employee concerned in the meantime is not relevant. [United Bank of India v. Bachan Prasad Lall, (2022) 4 SCC 358]

Service Law — Penalty/Punishment — Proportionality/Quantum of punishment: Substitution of punishment of removal with compulsory retirement, when warranted, explained. [Umesh Kumar Pahwa v. Uttarakhand Gramin Bank, (2022) 4 SCC 385]

Service Law — Pension — Entitlement to pension — Vested/accrued rights — Divesting of vested/accrued rights with retrospective effect — Permissibility: Amendment having retrospective operation divesting employee of benefit already granted to him under existing Rules, violative of Arts. 14 and 16 of the Constitution. Employees who had opted for Pension Scheme had vested/accrued rights and any amendment to contrary made with retrospective effect taking away vested right accrued to employee under existing Rules was impermissible. Further held, non-availability of financial resources cannot be justification to take away vested right accrued to employees and that too which was for their socio-economic security. Pension is not a bounty and it is the duty of appellant to make funds available to protect vested rights of employees accrued in their favour. Punjab State Coop. [Agricultural Development Bank Ltd. v. Coop. Societies, (2022) 4 SCC 363]

Service Law — Pension — Qualifying period/service — Parity: Though it is settled law that the Rules applicable in matters of determination of pension are those which are in force at the time of retirement, but, held, that does not mean that employer can depart from this principle arbitrarily and confer benefit of Rules in force at the time of appointment, for computation of pension upon one employee and deny the same benefit to another employee who is similarly situated. [G. Sadasivan Nair v. Cochin University of Science & Technology, (2022) 4 SCC 404]

Wakf Act, 1995 — Ss. 85 and 83 (as amended by Amendment Act 27 of 2013) and Ss. 86 to 90, 93, 94(1), 4 to 7, 51 and 52 — Wakf Tribunal — Jurisdiction of Wakf Tribunal: Proper forum for suit for permanent injunction in respect of wakf property, and power to issue temporary injunctions and whether subject property is disputed to be wakf property, or, admitted to be wakf property, is Wakf Tribunal and not civil court. However, examination of remedies under the Wakf Act, 1995 indicates that jurisdiction of civil court is not totally excluded. The 1995 Act makes a specific reference to court/civil court also in certain places. Ss. 86, 90 and 93 make specific reference to “court”. S. 68(6) goes a step further by making a reference to “civil court”. Thus, on a cumulative reading of various provisions of the 1995 Act, held, bar of jurisdiction of civil court under the 1995 Act is not total and omnipotent and that there may be cases which may still be entertained by civil courts. Further held, question of bar of jurisdiction of the civil court, has been left for judicial determination. [Rashid Wali Beg v. Farid Pindari, (2022) 4 SCC 414]

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]

Central Information Commission
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; 2022 SCC OnLine CIC 238; 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]

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]