Case BriefsSupreme Court

Supreme Court: In a case where the Karnataka High Court had reversed the judgment of Karnataka Administrative Tribunal directing compulsory retirement of a Government Servant after being found guilty of bribery, the bench of Dr. DY Chandrachud* and Surya Kant, JJ has held that acquittal of a person in the course of the criminal trial does not impinge upon the authority of the disciplinary authority or the finding of misconduct in the disciplinary proceeding.

Factual Background

  • The respondent, working as a Village Accountant at Revathagao in Indi Taluka of Bijapur District in Karnataka, was charged for demanding a bribe for deleting the name of a person from Column No. 11 of the RTC with regard to land bearing Survey No. 54, situated at Shirdona Village.
  • A criminal complaint was registered with the Lokayukta police against the respondent for the commission of an offence punishable under Sections 7 and 13(1) (d) read with Section 13 (2) of the Prevention of Corruption Act 1988.
  • After the investigation, a charge sheet was submitted against the respondent by the Lokayukta police in Special Case No. 20 of 2011 in the Court of Special Judge at Bijapur, who gave the benefit of doubt to the respondent and acquitted him of all charges.
  • A disciplinary enquiry was initiated under Section 7(2) of the Karnataka Lokayukta Act 1984 and the Lokayukta held that the charge against the respondent was proved and recommended the penalty of compulsory retirement from service.
  • The disciplinary authority held that the misconduct was proved and imposed a penalty of compulsory retirement.
  • Aggrieved by the penalty, the respondent moved the Karnataka Administrative Tribunal. The Tribunal upheld the order of compulsory retirement.
  • The Karnataka High Court set aside the judgment of the Tribunal.

Disciplinary enquiry vis-à-vis Criminal Trial

The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction.

Scope of Judicial Review

In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether:

  • the rules of natural justice have been complied with;
  • the finding of misconduct is based on some evidence;
  • the statutory rules governing the conduct of the disciplinary enquiry have been observed; and
  • whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct.

Ruling

The Court observed that none of the above tests for attracting the interference of the High Court were attracted in the present case. The Karnataka Administrative Tribunal having exercised the power of judicial review found no reason to interfere with the award of punishment of compulsory retirement. The Division Bench of the High Court exceeded its jurisdiction under Article 226 and trenched upon a domain which falls within the disciplinary jurisdiction of the employer. The enquiry was conducted in accordance with the principles of natural justice. The findings of the inquiry officer and the disciplinary authority were held to be sustainable with reference to the evidence which was adduced during the enquiry. Hence, the acquittal of the respondent in the course of the criminal trial did not impinge upon the authority of the disciplinary authority or the finding of misconduct in the disciplinary proceeding.

[State of Karnataka v. Umesh, 2022 SCC OnLine SC 345, decided on 22.03.2022]


*Judgment by: Justice Dr. DY Chandrachud


Counsels

For appellant: Advocate V N Raghupathy

For Respondent: Advocate Ashwin V Kotemath

High Court Round UpLegal RoundUp

82 reports on High Court Judgments to read from February 2022.


Allahabad High Court


 Bail

 22-year-old woman, burnt and buried due to demand of dowry: All HC denies bail to accused husband

Noting the brutality with wife a 22-year-old lady and mother of a one year’s infant child in causing her death, beating her cruelly by “her husband” Vikas Kunvar Srivastav, J. held that the said act was not only grave in nature but heinous also.

Read report, here…

Law on S. 311 CrPC

Power to the Court to summon a material witness or to examine a person present in Court or to recall a witness already examined: All HC discusses

Sanjay Kumar Pachori, J., while addressing a matter with regard to recalling of the witnesses expressed that, Section 311 of the Code confers a wide discretion on the Court to act as the exigencies of justice require.

Read report, here…

Law on Recovery of Maintenance

Limitation of 1 year for recovery of maintenance under S. 125(3) of CrPC and the law on enforcement to claim order of maintenance under S. 128 CrPC: All HC explains

Dr Yogendra Kumar Srivastava, J., while addressing a matter regarding recovery of maintenance amount, expressed that,

“Sentencing to jail can only be seen as a means of recovering the amount of arrears and not a mode of discharging liability.”

Read report, here…


Andhra Pradesh High Court


If the de facto complainant feels insulted as he was beaten in front of public and if he takes a hasty decision to commit suicide; will the accused be held responsible in the eyes of law?

Cheekati Manavendranath Roy J. partly allowed the petition by quashing FIR for the offence punishable under Sections 306 r/w 116 IPC.

Read report, here…

Bail

AP HC considered alleged attempt to threatening witness as a vague allegation; Cancellation of bail sought was rejected

“…nothing was brought to the notice of the police or the investigating agency stating that the accused are interfering with course of investigation by way of threatening the witnesses through their men.”

Read report, here…


Bombay High Court


 Law on Voluntarily Causing Grievous Hurt

In a land dispute, a person subjected to grievous injury with the use of ‘Khurpi’: Will he be punished under S. 326 or 325 Penal Code, 1860? Bom HC explains

The Division Bench of S.S. Shinde and N.R. Borkar, JJ., upheld the decision of the Trial Court in a case of causing grievous injury voluntarily.

Read report, here…

Bail

Constant quarrels between husband and wife: Bom HC observes while granting bail to husband accused of dowry and cruelty

Sarang V. Kotwal, J., on noting that the husband and wife cannot live together and there were constant quarrels between them, granted bail to the husband who was accused under the provisions of Dowry Prohibition Act and Penal Code, 1860. 

Read report, here…

Provocation by Wife

Wife subjected husband to humiliation by publicly calling him impotent and abusing him resulting in assault by husband: Husband will be convicted for murder or culpable homicide? Bom HC analyses

The Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ., modified the conviction of a husband who in provocation by wife on being subjected to abuses assaulted wife.

Read report, here…

Abetment to Suicide

Employer setting big targets, not granting leave and not accepting resignation would be acts in normal course of business: Bom HC grants anticipatory bail to employer accused of abetting suicide committed by employee

 Sarang V. Kotwal, J., addressed a matter wherein an employer was accused of abetting the suicide of an employee.

Read report, here…

Law on Custody

9-year-old child prefers to stay with mother’s father and his family members and shows animosity towards father: Whether father will get custody of child or not? Bom HC decides 

Addressing a matter wherein a child’s mother was diagnosed with cancer due to which she started living at her parental home with the child, and after the passing of the mother, a custody battle arose between the father of the child and the father and brother of wifeDivision Bench of S.S. Shinde and N.J. Jamdar, JJ., noted animosity of the child towards his father, to which the Court expressed that, the same must have occurred due to ‘parental alienation syndrome’.

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Appeal

Appellate court can reverse the finding and sentence of the trial court ordering re-trial

The Division Bench of S.S. Shinde and Milind N. Jadhav, JJ. allowed an appeal against conviction of the Appellant by the Trial Court. The appellant was convicted of the offence punishable under Section 302 of the Penal Code, 1860, (“IPC”) read with Section 34 IPC. He was sentenced to suffer life imprisonment and to pay a fine of Rs. 15,000.

Read report, here… 

Transparency in Functioning

Disqualification of Sarpanch in suspicion of benefitting her close relations by allotting work under Panchayat’s order, without establishment of direct or indirect involvement as per S. 14(1)(g) of Maharashtra Village Panchayats Act: Is it correct? Bom HC analyses

Quoting a phrase from a story of a Roman Ruler Julius Caesar that, “Caesar’s wife should be above suspicion”, Bharati H. Dangre, J., remarked that,

“…those who are vested with the powers are to be made more accountable and transparent in their functioning and subjected to social audit with a view to minimize their discretionary decisions.”

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COVID-19 

Cinema Halls, Theaters, Malls, Restaurants, etc. permitted to carry on business with 50% capacity but banquet halls/Mangal Karyalaya & lawns not permitted with same capacity: Bom HC issues notice

The Division Bench of Sunil B. Shukre and Anil L. Pansare, JJ., addressed a petition wherein a grievance was filed stating that an unreasonable classification resulting in impermissible discrimination had been made by the respondents as Cinema Halls, Theaters, Malls, Restaurants and also other establishments have been permitted to carry on their business or operations with 50% capacity of the customers or attendees, provided customers or attendees are armed with two doses of vaccination, and whereas, Mangal Karyalaya/ Banquet Halls and Lawns where marriage functions are held and solemnised are not being permitted to carry on their business and operations with the same capacity of persons who have taken both the doses of vaccination. 

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Consumer Protection

Consumer Protection Act requires State Government to constitute a State Consumer Disputes Redressal Commission and create circumstances to its effective functioning: Bom HC at Goa directs State of Goa to ensure filling up of vacant positions expeditiously

Stating that the State Administration comprises several IAS Officers, the least expected out of them is to find the solution to problems, so that State Consumer Disputes Redressal Commission functions effectively, The Division Bench of M.S. Sonak and R.N. Laddha, JJ., directed the State of Goa to ensure that the post of President and 3 other members of the Commission which are vacant be filled expeditiously.

Read report, here…

Dead Person

Notice to a dead person under S. 148 of Income Tax Act cannot be issued: Bom HC

The Division Bench of K.R. Shriram and N.J. Jamdar, JJ., reiterated that notice under Section 148 of the Income Tax Act, 1961 to a dead person cannot be issued.

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Legal Profession

“Notaries operating from public taxis around vicinity of Court”: Dignity of the profession needs to be maintained and the legal profession cannot be allowed to function from the streets | Bom HC

The Division Bench of S.J. Kathawalla and Milind N. Jadhav, JJ., requested the Department of Legal Affairs to give due consideration to this Court’s Order and the Report dated 9-12-2021 submitted by Nausher Kohli, Advocate whilst enacting the Draft Bill.

Read report, here…

Murder or Culpable Homicide?

Husband killed wife brutally in a heat of passion leaving husband with a wounded pride: Bom HC decides whether the said offence will come under “Murder” or “Culpable Homicide not amounting to Murder

Stating that, in the moment of anger spouses almost forgot about the two children who were hardly three years old at the time of incident, the Division Bench of Sadhana S. Jadhav and Prithiviraj K. Chavan, JJ., found that the case of a husband killing wife with a knife was a case of culpable homicide not amounting to murder.

Read report, here…

Arbitration

Bombay HC rejects argument that a dispute cannot be referred for arbitration on account of fraud: Read why

B.P. Colabawalla, J., addressed an arbitration application filed under Section 11 of the Arbitration and Conciliation Act, 1996

Read report, here…

Gangubai Kathiawadi

Can after certification granted by Board, public exhibition of a film be prohibited? Bom HC answers 

In respect to petitions with regard to the release of movie Gangubai Kathiawadi, Division Bench of Dipankar Datta, CJ and M.S Karnik, J., while expressing that “Once the film is granted a certificate by the competent statutory authority, i.e. the Board, the producer or distributor of the film has every right to exhibit the film in a hall unless, of course, the said certificate is modified/nullified by a superior authority/Court”, held that, there cannot be any kind of obstruction for the exhibition of a film, which is certified, unless the said certificate is challenged and Court stays its operation.

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Divorce 

If husband and wife get their marriage registered under Special Marriage Act & under Parsi Marriage and Divorce Act, 1936 as well, would this require them to get nullity of marriage under both Acts or one? Court decides

G.S. Kulkarni, J., expressed that, there is no provision under legislations, that if a marriage between the same couple is annulled under a competent law as enacted by the Parliament, it can as well be of a legal effect in the corresponding enactment.

Read report, here…


Calcutta High Court


Bail

S. 37 of the NDPS Act mandates a more stricter approach than an application for bail sans the NDPS Act: Cal HC

The Division Bench of Bibhas Ranjan De and Debangsu Basak, JJ., while addressing a bail application in a case under NDPS Act, remarked that,

Section 37 of the NDPS Act mandates a more stricter approach than an application for bail sans the NDPS Act.

Read report, here…

Sexual Assault

14-yr old girl subjected to penetrative sexual assault by man who called her grand daughter: Is girl’s complaint vital to form basis of conviction? Cal HC explains

The Division Bench of Joymalya Bagchi and Bivas Pattanayak, JJ., in a penetrative sexual assault case of a 14-year-old girl, expressed that,

“Crime against woman is increasing as a whole. Such type of crime is a direct insult to the human dignity of the society and therefore imposition of any inadequate sentence not only results in injustice to the victim and the society in general but also stimulates criminal activities.”

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Trademark

Disparagement or mere puffery? Court decides in matter of offending/misleading advertisements [Dabur India v. Baidyanath Ayurved]

Saraf, J. decided on a petition which was filed seeking remedy against impugned advertisements disparaging the goodwill and reputation of the petitioner and its product.

Read report, here…


Chhattisgarh High Court


 Jurisdiction

 Limited jurisdiction has been given to the High Court confined to the substantial question of law only

Anoop Kumar Dhand J. dismissed the appeal as it does not fulfill the requirement mandated under Section 30 of Workmen’s Compensation Act, 1923.

Read report, here…

If the party is able to make out an exceptional case and the court finds irretrievable injustice would occur if writ jurisdiction is not invoked, High Courts do have the power to entertain the writ petition

Sam Koshy J. partly allowed the petition and partly disposed of the petition expressing no opinion on the termination notice issued against the petitioner.

Read report, here…

Child Custody

Due to father’s field job, mother granted custody of child: Did Chh HC also grant contact and visitation right to father? Read

In a child custody battle, the Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., reiterated the position of law in the Supreme Court’s decision of Yashita Sahu v. State of Rajasthan(2020) 3 SCC 67, wherein it was held that the court cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each, further this Court granted visitation and contact right to the father.

Read report, here…

Desertion 

If husband brings home concubine due to which wife leaves house, would that lead to desertion by wife? Chh HC explains

The Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., expressed that,

“If the husband keeps another lady; gives shelter to her; and proceeds to have child with the said lady and for that reason if the first wife has to leave the matrimonial home because of physical and mental torture meted out to her it cannot be presumed as a desertion on the part of wife.”

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Delhi High Court


Trademark Dispute

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

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

Read report, here…

Deadly Weapons

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

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

Read report, here…

Law on Bail

Investigation complete, charge sheet filed, accused in jail since 6 months: Read whether Del HC grants bail

Dhari Singh, J., granted bail while referring to a catena of Supreme Court decisions with regard to the law on bail.

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4 years as undertrial, 2 witnesses examined out of 14, no probability of trial to be concluded in near future: Whether Del HC will grant bail to accused under S. 37(b)(ii) of NDPS Act? Read

Chandra Dhari Singh, J., granted bail to an accused on being satisfied with “reasonable grounds” as per Section 37 (b)(ii) of the NDPS Act, 1985.

Read report, here…

Judicial Separation 

Can judicial separation be granted instead of divorce for which party has approached the Court? Read what Del HC says

Expressing that the Family Court’s decision was based on optimism and hope rather than the actual factual matrix of the case, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., while addressing a matter wherein matrimonial dispute occurred between the parties, observed that,

“..a decree of judicial separation can be rescinded by the same court; but a decree of divorce can be reversed only by a judicial order: either in review or in appeal. If it is passed ex parte, it may be recalled on an application being made for that purpose.” 

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Money Laundering

Money laundering offence under PMLA is, layered and multi-fold and includes stages preceding and succeeding offence of laundering money: Del HC

While expressing the object of PMLA Act Chandra Dhari Singh, J., expressed that, offence of money laundering is threefold including the stages of placement, whereby the criminals place the proceeds of crime to the general and genuine financial system, layering, whereby such proceeds of crime are spread into various transactions within the financial system and finally, integration, where the criminals avail the benefits of crime as untainted money.

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Uphaar Case

Manner in which judicial records tampered revealed well-planned & methodical attempt to subvert justice system: Suspending sentence of Ansal brothers would amount eroding faith of public? Read Del HC’s decision

Stating that the manner in which Court records tampered was insidious and revealed a well-planned and methodical attempt to subvert the justice system in order to escape conviction in the Main Uphaar CaseSubramonium Prasad, J., held that since the matter relates to tampering of judicial record, the same has to be decided expeditiously in order to ensure faith of the public in the judicial system.

Read report, here…

Law on Review

Can review be sought wherein Court has to delve into materials, apply its mind afresh after re-evaluating materials? Del HC throws light

Expressing that, Minor mistakes of inconsequential importance are insufficient to seek a review, Asha Menon, J., elaborated that, while seeking review of orders passed in a Civil Suit, the grounds mentioned in Order XLVII Rule 1 of the CPC have to be satisfied, which would not equate the hearing with the original hearing of the case or a hearing in an appeal 

Read report, here… 

Eviction

Group of leading artistes asked to vacate Government allotted premises under Discretionary Quota: Right to continue in public premises infinitely? Detailed report

Expressing that a state of indecision could not have given rise to a legitimate expectation, Yashwant Varma, J., held that, while the petitioners undisputedly were illustrious and pre-eminent exponents in their respective fields of the classical arts, the Court was not shown any material which may justify the continued retention of public premises in Delhi or that they would be unable to propagate the classical arts in any other State or city of the nation.

Read report, here… 

Shared Household

Where the residence is a shared household, would it create any embargo upon owner to claim eviction against his daughter-in-law? Read what Del HC says

Yogesh Khanna, J., held that right of residence under Section 19 of the Domestic Violence Act is not an indefeasible right of residence in a shared household, especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law.

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Section 138 NI Act

Vicarious Liability of Directors of Company for offences committed under S. 138 NI Act: Person claiming to not being able to manage business due to his age, could this be accepted as defence? Del HC answers

Subramonium Prasad, J., addressed a matter pertaining to vicarious liability of directors of the company alleged for offences under Section 138 NI Act.

Read report, here…

Passport

Adoptive Father of a minor girl seeks issuance of her passport with details of adoptive parents so that she could write her TOEFL examination: Here’s what Del HC directed

Kameswar Rao, J., addressed a matter wherein a minor child was not able to apply for a passport either in the name of her biological parents or in the name of her adoptive parents, was unable to pursue her academics in the USA.

Read report, here…

Other

Power under Article 227 of Constitution of India cannot be exercised to upset conclusions, howsoever erroneous they may be, unless there was something grossly wrong or unjust: Del HC

Asha Menon, J., while expressing the scope of power under Article 227 of the Constitution of India dismissed the present petition. 

Read report, here…


Gujarat High Court


Will

Opportunity of being heard needs to be granted; Court decided in matter of the Will of Guru Ranchhoddas

A.P. Thaker, J. decided over a petition wherein the case of the petitioner was that the properties in question were originaly private properties of Guru Keshavdas, and after the death of Guru Keshavdas, Guru Karsandas became the Mahant and succeeded the properties under his Will. On the death of Guru Karsandas his chela Guru Atmaram became Mahant and succeeded to the properties of Guru Karsandas under his Will dated 08.12.1941. Thereafter, Guru Atmaram died leaving his Will dated 06-05-1947, appointing Guru Ranchhodas as Chela.

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Himachal Pradesh High Court


Couples have to make their choice at the threshold between career prospects and family life; HP HC observes in a case where a mother seeks job transfer to be with her daughter

“…mandamus is a public remedy and this remedy lies, when a public authority fails to perform the duty entrusted to it by law.”

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Jammu and Kashmir and Ladakh High Court


Inherent Power

Instead of filing an appeal before the Sessions Court petitioner rushed to this Court invoking its inherent power. Can High Court exercise its inherent power? Read J&K and Ladakh HC’s decision

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

Read report, here…


Jharkhand High Court


Lokayukta 

Does Lokayukta have power to pass directions upon disciplinary authority to take action against erring officials? Jharkhand HC elaborates in light of Jharkhand Lokayukta Act, 2001

Sujit Narayan Prasad, J., addresses a very pertinent question of whether the Jharkhand Lokayukta Act, 2001 provides power for issuance of direction upon the disciplinary authority to take action against erring officials or can it’s order be limited to a recommendation.

Read report, here…


Kerala High Court


Cruelty

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

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

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If Court finds that marriage failed due to incompatibility, but one of the parties withholds consent for mutual separation, would that be ‘Cruelty’? Kerala HC elaborates

Expressing that, “If the conduct and character of one party causes misery and agony to the other spouse, the element of cruelty to the spouse would surface, justifying grant of divorce”, the Division bench of A. Muhamed Mustaque and Sophy Thomas, JJ., held that, Court cannot leave the life of a spouse to the mercy of the opposite spouse.

Read report, here…

Constitutional & Statutory Obligation

Whether State empowered to reject medical reimbursement for treatment being from unrecognized department of recognized hospital? HC decides

Murali Purushothaman, J., held that there is a Constitutional as well a statutory obligation on the part of the State to bear the expenses for treatment of the government servant and his family.

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Reservation

“Marrying a Christian man would not wipe off the benefit of reservation granted to a scheduled caste persons”, HC reiterates caste of a person is to be decided on the basis of birth

Raja Vijayaraghavan V, J., held that marrying a Christian man would not wipe off the benefit of a reservation granted to scheduled caste persons.

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Corporal Punishment

Teacher administering moderate and reasonable force to enforce discipline in classroom, can be exposed to criminal prosecution? Kerala HC answers 

While explaining that inflicting corporal punishment on a Child by a parent or teacher is forbidden, Dr Kauser Edappagath, J., observed that,

“Hurt of a less serious crime is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a school teacher.”

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Registration of Marriage

If a foreign embassy doesn’t issue ‘Single Status Certificate’ or NOC of an OCI card holder, can Declarations and Certificates be accepted for registration of marriage in India? Ker HC answers

While addressing a matter wherein an Indian Citizen intended to soleminse and register his marriage with a British Citizen, an OCI card holder, N. Nagaresh, J., held that f a foreign Embassy does not issue a Single Status Certificate or NOC due to the law, rules and regulations prevailing in that country, Declarations or Certificates evidencing the same should be accepted in India for registration of marriage.

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Tobacco at residence

If a person keeps tobacco at residence, would that amount to being an offence? Ker HC answers

While addressing a matter for an offence alleged under Cigarettes and Other Tobacco Products Act, Juvenile Justice Act and Kerala Police Act, Dr Kauser Edappagath, J., expressed that mere keeping tobacco at residence would not amount to being an offence.

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Admin of WhatsApp Group

Can an Admin of a messaging service group be held criminally liable for the offensive content posted by member of a group? Kerala HC addresses

While addressing the question of whether the creator or administrator of a WhatsApp group is criminally liable for offensive content posted by a group member, Dr Kauser Edappagath, J., held that a person can be criminally liable for the acts of another if they are party to the offence.

Read report, here…


Karnataka High Court


 Hijab Case

When Karnataka High Court temporarily restrained students from wearing hijab, religious flags, saffron shawls, etc.: Read Court’s interim order

While expressing that, “Endless agitations and closure of educational institutions indefinitely are not happy things to happen”, the Bench of Ritu Raj Awasthi, CJ and Krishna S Dixit and JM Khazi, JJ., restrained all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders.

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Sentence

Conviction sentence not to affect career and not be treated as a remark for employment; Kar HC confined the sentence to fine only in accordance with Ss. 279 and 337 IPC

Sreenivas Harish Kumar, J., disposed of the petition and modified the judgment of the appellate court.

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GST Exemption 

Whether GST exemption can be claimed for leasing out residential premises as hostel to students and working professionals? Kar HC answers 

The Division Bench of Alok Aradhe and M.I. Arun, JJ., addressed whether GST exemption can be claimed for leasing of residential premises as a hostel to students and working professionals.

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Madras High Court


Negotiable Instruments Act

Whether proceedings under Ss. 138 and 141 of NI Act can be initiated against corporate debtor during moratorium period? Madras HC answers

Sathish Kumar, J., while addressing a matter with regard to the dishonour of cheques under Section 138 of Negotiable Instruments Act, 1881, held that the moratorium provision contained in Section 14 of the Insolvency and Bankruptcy Code, would apply only to corporate debtor, but the natural persons mentioned in Section 141 of Negotiable Instruments Act continue to be statutorily liable under Chapter XVII of the Negotiable Instrument Act.

Read report, here…

Religious Practice

“One of the basic tenets to be followed by every Hindu is tolerance. Tolerance must be his own community or religion and in particular, to also to every other religious practice”: Madras HC

“Fundamental Rights and Duties are sacrosanct and binding on the Courts which adjudicate issues relating to the religion.”

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Madhya Pradesh High Court


 MBBS Seat

CBI’s self-contained note cannot form basis for rejecting application for increase of MBBS Seat; HC directs NMC to consider the application afresh 

The Division Bench of Sujoy Paul and Arun Kumar Sharma, JJ., quashed the National Medical Commission’s decision rejecting L.N. Medical College & Research Centre’s application for increase of MBBS seats.

Read report, here…

Writ of Mandamus

Provision for redressal of grievance in matter of radiation by mobile tower exists; Permission for installation can’t be revoked

Nandita Dubey, J. heard a petition which was filed seeking issuance of the writ of mandamus to the respondents to take appropriate effective steps against the Reliance Telecom Services not to permit them for installation of the mobile tower in the premises of Jai Hind School, V.V. Giri Ward, Pipariya.

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Departmental Inquiry

Desirable to stay the departmental proceedings till conclusion of the criminal case; Court prohibits Department to continue inquiry

Atul Sreedharan, J. decided on a petition which was filed by the petitioner who was aggrieved by the departmental proceedings against him on the identical charges by the CBI in the criminal case. 

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Land Acquisition

What would be an appropriate factor by which market value of land was to be multiplied to assess the compensation in the case where the land was situated in the rural area? [NH- 148N land acquisition] 

The Division Bench of Vivek Rusia and Rajendra Kumar Verma, JJ. took up a bunch of petitions which had similar facts that the petitioners were owners of agricultural land that came under the acquisition for construction of 12 lanes Delhi-Mumbai Expressway i.e. NH-148N under the provisions of the National Highways Act, 1956 (‘the NH Act of 1956’). 

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Acquittal

Unless the acquittal in criminal trial is honourable/clean, the employer has enough discretion to find a candidate to be unfit for employment

The Division Bench of Sheel Nagu and Sunita Yadav, JJ. while hearing a petition under Article 227 against order the Central Administrative Tribunal, Jabalpur Bench., dismissed the petition.

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Meghalaya High Court


Meghalaya Civil Service and the Meghalaya Police Service

There is no question of apples and orange being put in the same basket: Court calls State’s action foolish and justification of such act real tragedy

Sanjib Banerjee, CJ. while deciding in the matter between groups of persons in the Meghalaya Civil Service and the Meghalaya Police Service, pertaining to seniority between or among them, disposed the writ petition in favour of petitioners.

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Rape Case | Confession

Unequivocal confession leads to dismissal of appeal in a Rape case with minor

The Division bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. dismissed the appeal which was filed on behalf of the convict with counsel engaged by the Legal Services Authority.

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Police Service 

“It is elementary that when the law requires a certain thing to be done in a particular manner, it has to be done in such manner or not at all”; Court upholds the dismissal of police official for passing information to outlaws 

“….the appellant had links with the banned outfit and had passed on information about police movements and operations to the outlawed organisation” 

Read report, here…


Orissa High Court


Ever-growing stock of seized vehicles

PIL filed about the ever-growing stock of seized vehicles and other properties in the various police stations in the State of Odisha; Directions issued

Muralidhar, CJ. issued directions regarding the ever-growing stock of seized vehicles and other properties in the various police stations in the State of Odisha

Read report, here…


Punjab and Haryana High Court


 Drug Menace

“Drug menace has become deep rooted and is taking its toll like a slow poison for the young generation”; HC expresses anguish over callously casual approach of officers

In a case exposing callous attitude of authorities while dealing with drug menace in the State of Punjab, Meenakshi I. Mehta, J., observed that in some paras of the Statu sreports/Reply, the police officers concerned had mentioned the tablets, allegedly recovered as ‘CLAVIDOL-100 SR’ whereas in certain other paras the same had been described as ‘CLOVIDOL-100 SR’. Criticizing the lackadaisical attitude of officers, the Bench remarked…

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State of Punjab which was known as one of the prosperous States is now at the brink of drug-trafficking

Expressing that, State of Punjab which was known as one of the prosperous States is now at the brink of drug-trafficking, Harnaresh Singh Gill, J., held that in order to curb the menace of drug trafficking the accused person are to be dealt with stringently even at the stage of granting her/him bail in NDPS Act cases involving commercial quantity.

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Patna High Court


Mental Health 

Mental health of a person and/or treatment of those who are in need, more so during the time of Covid-19, is the least priority of the State Government

The Division Bench of Sanjay Karol, CJ and S. Kumar, J., directed the Chief Secretary, Government of Bihar to take all steps ensuring the establishment of State Mental Health Authority as per Section 45 of the Mental Health Care Act, 2017.

Read report, here…


Rajasthan High Court


 Compensation | Motor Vehicle

Money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity in approach; Court observes in a MV accident case demanding higher compensation 

Birendra Kumar J. allowed the appeal and enhanced the award considering the settled guidelines in the subsequent judgments to reach at “just compensation”.

Read report, here…

Customs Act 

DRI officer is not Competent Authority to issue show cause notice and adjudicate the same as “proper officer”; Show cause notice set aside 

A Division Bench of Akil Kumar, CJ and Sameer Kureshi, J. allowed the writ petition and set aside the proceedings issued by show cause notice and subsequent demands confirmed by OIO. 

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Rajasthan Public Service Commission

It would be open for RPSC to conduct written main examination on the rescheduled date, Single Judge bench order stayed

A Division Bench of Akil Kureshi CJ and Sudesh Bansal J. stayed the impugned judgment and left it open for RPSC to conduct a written main examination on the rescheduled date.

Read report, here…

Compassionate Appointment

“…on the ground of delay itself, the heir of the deceased employee shall not be entitled to appointment on compassionate ground.”; Raj HC observes in a case where delay is of almost 13 years 

A Division Bench of Manindra Mohan Srivastava and Anoop Kumar Dhand, JJ. dismissed the petition on the ground that the writ petition filed by the petitioners is without any substance. 

Read report, here…

Transfer

Accepting requests for inter-district transfer can lead to chain reaction and at times considerable administrative difficulties; Raj HC observes while dealing a case related to inter-district transfer

A Division bench of Akil Kureshi CJ and Madan Gopal Vyas J. dismissed the petition stating that nothing would come in the way of the petitioner in seeking inter-district transfer if the Government rules and regulations recognize any such policy.

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 Tripura High Court


 Qualifying Examination

No grievance for non-selection; Court finds criteria fixed by ONGC clear and categorical

Indrajit Mahanty, CJ. dismissed a petition which was filed by the petitioner who was appointed as Junior Security Supervisor at (A-1 Level) in the category of Scheduled Tribe and had appeared for the computer-based test and physical standard test conducted by the ONGC. It was alleged that in the selection process the petitioner was awarded 72 marks but was not selected whereas the candidate (respondent 3) who got only 66.10 marks was wrongly and illegally selected by the respondent 2.

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Conjugal Rights

Whether maintenance granted to the wife under S. 125 CrPC can be cancelled in view of husband’s obtaining a decree for restitution of conjugal rights and wife’s refusal for the same?

S.G. Chattopadhyay, J., decided on a petition which was filed by the petitioner challenging order passed by the Additional Judge, Family Court which stated that the petitioner was not entitled to any maintenance allowance under section 125 Cr.P.C from her husband in view of her refusal to restore conjugal relationship with her husband pursuant to the judgment and decree passed by the District Judge for restitution of conjugal rights.

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Bail

Tests provided under S.37(1)(ii) of the NDPS Act should qualify in order to seek bail; Court rejects application 

S.G. Chattopadhyay, J., rejected a bail application which was filed for releasing the accused on bail who had been undergoing imprisonment since 16-09-2021 under NDPS Act, 1985. Successive applications of the accused for pre-arrest bail were rejected.

Read report, here…

Die-in-Harness Scheme

Exclusion of married daughters from the die-in-harness scheme of the State Government discriminatory? Court discusses

The Division Bench of Indrajit Mahanty, CJ. and S.G. Chattopadhyay, J. decided over a bunch of petitions which had a similar question pertaining to exclusion of married daughters from the die-in-harness scheme of the State Government. 

Read report, here…

Migratory Birds

More than 1000 ‘Rare’ Birds dead, no carcasses found; Court directs committee inspection 

The Division Bench of S.G. Chattopadhyay and Indrajit Mahanty, JJ., took up a PIL which was filed on the basis of press reports that in the Sukhsagar water body of Udaipur, Khilpara, large number of migratory birds of more than 1000 in numbers were found dead. Notices were issued and following the directions of this Court a report had come to be filed by the State wherein the State had taken note of the fact that many migratory birds come and find sanctuary in water bodies in the State of Tripura and they come all the way from Spain, Portugal, South East France, Italy and North Western Africa and have all been listed as “Rare” birds by the European Union, but it seems that the same has been detailed as localized by the State.

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Uttaranchal High Court


Right to Information

Husband seeking personal information such as salary of wife under Right to Information Act, 2005; Whether acceptable or not?

“….The only exception as to the information given under the Act under Section 8 of the RTI Act, is an exemption from disclosure of information.”

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Termination of Pregnancy

Compelling to continue pregnancy, infringement under Art. 21; Rape victim allowed to terminate Intrauterine Fetus of 28 weeks 5 days

Alok Kumar Verma, J., decided on a petition which was filed by the father of the minor petitioner to issue a writ in the nature of mandamus commanding and directing the respondent to ensure immediate medical termination of petitioner’s pregnancy after taking all precautions as required to be taken medically and legally.

Read report, here… 

Bail

Denial of bail on sole ground of apprehension that he may commit crime again, overturned by the Court

R.C. Khulbe, J. granted bail in a criminal revision petition moved against the order of Juvenile Justice Board (JJB), Dehradun as well as a judgment by Addl. Sessions Judge (POCSO)/FTC, Dehradun against the petitioner.

Read report, here…



8 Legal Stories of the Week: From High Courts to District Courts

7 Legal Stories of the Week: From High Courts to District Courts

11 Legal Stories of the Week: From Hijab ban to a Sexual Harassment complaint from an employee in ScoopWhoop & more

8 Legal Stories of the Week: From the release of movie Gangubai Kathiawadi to WhatsApp Admin’s liability if a member of group shares objectionable content on group and many more such stories

Case BriefsHigh Courts

Jharkhand High Court: Sujit Narayan Prasad, J., addresses a very pertinent question of whether the Jharkhand Lokayukta Act, 2001 provides power for issuance of direction upon the disciplinary authority to take action against erring officials or can it’s order be limited to a recommendation.

A petition was filed under Article 226 of the Constitution of India, whereby and whereunder the order passed by respondent 2 had been assailed, primarily on the ground that under the provision of Section 12(3) and Section 12(5)(A), the Lokayukta had no power to direct the disciplinary authority to take action on the basis of the fact-finding report.

Analysis, Law and Decision

High Court on taking into consideration the import of the statutory provision specifically as provided under Section 12(3) and 12(5)(k) of the Jharkhand Lokayukta Act, 2001 came to the conclusive finding that the statute does not provide power for issuance of direction upon the disciplinary authority to take action against the erring officials.

Bench held that the statute provides power upon the Lokayukta to make recommendations on the basis of the fact-finding if any irregularities had been surfaced in the course thereof.

High Court found from the impugned order that the order had been passed making the recommendation to the competent authority to suspend the petitioner along with other public servants whose name had been referred and to initiate a departmental proceeding, apart from that, an FIR had also been recommended to be instituted.

Further, it appeared that after making recommendation, the stipulation had been made to the effect that such recommendation was being made, so that, in future, such occurrence may not be repeated.

The order had been passed upon the authority concerned to communicate to the Office of the Lokayukta about the action taken report within the 3 months.

Hence, it was evident that the impugned order, initially contained a recommendation of suspending the public servants and initiating the departmental proceeding against them as also instituting an FIR. If the order would have been up to the stage of recommendation, then it would have been said to be in consonance with the provision of Section 12(3) and 12(5)(k) under which the power has been conferred by the Lokayukta to take decision by making recommendation before the competent authority, so that, the recommendation, if required be acted upon.

“…stipulation as has been made to the effect that such recommendation is being made, so that, such occurrence may not be repeated and the action taken report be also furnished within the period of three months, is changing the nature of recommendation making it as a direction.”

Therefore, High Court expressed that since the provision of Section 12(3) does not confer power upon the Lokayukta to pass such direction commanding upon the disciplinary authority to take action against whom irregularities were found to be true in course of inquiry.

Bench relying upon the decision of this Court in WP (C) No. 263 of 2019, held that the Lokayukta’s impugned order shall be modified to the extent that the same will be treated to be recommendation.

“…the authority before whom, the finding along with the recommendation has been sent, is directed to act strictly in pursuance to the provision of Section 12 of the Act, 2001, so that the purpose for which, the Lokayukta Act, 2001 as has been enacted, be achieved, keeping this into consideration the Chief Secretary of the State is directed to ensure compliance of this order.”

In view of the above petition was disposed of. [Jai Prakash Narayan Sinha v. State of Jharkhand, 2022 SCC OnLine Jhar 99, decided on 10-2-2022]


Advocates before the Court:

For the Petitioners: Shilpi Sandil, Advocate

For the State: P.A.S. Pati, Advocate

For the Respondent 2: Rajesh Kumar, Advocate

Case BriefsHigh Courts

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

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

Background

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

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

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

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

Findings of Lok Ayukta

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

Observations by the Court

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

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

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

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

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

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

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

Hence, finding the instant petition without any merit the Bench dismissed the same in limine. [K.T. Jaleel v. V.K Muhammed Shafi, 2021 SCC OnLine Ker 1817, decided on 20-04-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

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

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

Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha J., allowed the petition partly stating that Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate.

The facts of the case are such that Respondent 2 presented a private complaint under Section 200 of Criminal Procedure Code i.e. CrPC seeking reference of the matter for investigation to the Lokayukta Police under Section 156(3) of CrPC, in the interest of justice. The Special Judge, Special Court under Prevention of Corruption Act, Bengaluru referred the complaint to the Superintendent of Police, Anti-Corruption Bureau, Bengaluru, for investigation and for filing the report before the Court vide order dated 06-10-2016. This order is impugned in this petition on the ground that the procedure followed by the learned Special Judge is contrary to the law laid down by the Supreme Court in Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287.

Counsel for the petitioners submitted that in the absence of any averments made in the complaint to the effect that Respondent 2/Complainant has exhausted the remedy under Sections 154(1) and 154(3) CrPC and there being no affidavit as mandated, the learned Special Judge has committed an error in referring the complaint about investigation under Section 156(3) of CrPC.

Counsel for the respondents submitted that the complaint was filed in the year 2012 much earlier to the law laid down by the Supreme Court in the year 2015 and as such, the principles laid down in the said decision cannot be applied to the facts of the case. Further, he submitted that non-filing of the affidavit may amount to a curable irregularity and the same does not amount to illegality vitiating the impugned order and thus, sought to dismiss the petition.

Relevant paras from the judgment titled Priyaka Srivastava v. State of U.P., (2015) 6 SCC 287 is below

“30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.”

“31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”

 The Court observed that when a specific prayer is made by the complainant to refer the complaint about investigation under Section 156(3) of CrPC, the principle laid down in the relied judgment above comes into force. It is mandated that when an application is filed under Section 156(3) of CrPC, the same shall be supported by an affidavit, so that the learned Magistrate could verify the truth of the allegations made in the complaint and also to obviate false and irresponsible complaints being filed invoking the jurisdiction of the criminal courts. The direction is binding on all the courts under Article 141 of the Constitution of India.

The Court thus held that the instant complaint was filed in the year 2012, but the order of reference was made only in the year 2016 subsequent to the law laid down by the in Priyanka Srivastava’s case (supra). Hence, the impugned order of reference made by the learned Special Judge cannot be sustained.

In view of the above, petition was allowed partly.[C.T. Ravi v. State of Karnataka,  2020 SCC OnLine Kar 1746, decided on 22-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Orissa High Court: A Division Bench of Mohammed Rafiq and B. R. Sarangi, JJ.,  dismissed the petition and vacated the interim order.

 The facts of the case are such that the petitioner is a private limited company, registered under Companies Act was awarded the work “Construction of HL bridge over river Suktel on Tamian to Mundalsar road in the district of Bolangir under Biju Setu Yojana” vide agreement dated 26-02-2014 and the completion date was fixed to 25-02-2016 but it was completed before scheduled dated and handed over on 07-09-2015. Once the work completed and it was open for public transportation few horizontal cracks were to be seen and while the petitioner company was called for restoration work, the nationwide lockdown was announced and due to it being left unattended in the middle of the work, ‘span’ collapsed killing and injuring two persons respectively. Consequently, the petitioner was blacklisted and charged under various sections of the Penal Code, 1860 which stands challenged and pending adjudication. However, now Lokayukta has registered suo motu case against the petitioners and observed that a recently constructed bridge was collapsed resulting in death of two labourers and demanded a fair enquiry to be submitted exercising its power under Section 20(6) of the Odisha Lokayukta Act, 2014, and directed to file status report of the same within a period of three months from the date of passing of the order. Hence the instant application was filed challenging the order of Lokayukta.

Counsel for the petitioner submitted that as there are petitions pending adjudication before Court and the petitioner is also facing criminal charges, Lokayukta also causing an enquiry is prejudicial to the interest of the petitioner and the order passed is without complying the principles of natural justice and, thereby, the said order cannot sustain in the eye of law.

Counsel for the respondent the Lokayukta has only directed for investigation by the Vigilance authority, which is within the complete domain of the Lokayukta under Section 20(6) of the Odisha Lokayukta Act, 2014. If the Lokayukta has been empowered under the statute to issue such direction for investigation, the same should not be interfered with by this Court by passing an interim order and seeks that such interim order should be vacated and allow the Lokayukta to proceed with the matter in accordance with the law.

The Court observed that even though the order of blacklisting the contractor has been challenged before this Court and the matter is pending adjudication, and the contractor himself is facing criminal case lodged against it for such negligence in the work, but that ipso facto cannot disentitle the Lokayukta to cause an enquiry under the provisions of the Odisha Lokayukta Act, 2014 for alleged corruption in the matter of execution of the work itself.

The Court held that if the direction has been given to find out the lapses caused on the part of the government servant and such direction has been issued under Section 20(6) of the Odisha Lokayukta Act, 2014, this Court does not find any illegality or irregularity by issuing such direction by the Lokayukta.

In view of the above, petition is not entertained and accordingly dismissed.[Ram Kumar Agrawal Engineers (P) Ltd. v. Odisha Lokayukta,  2020 SCC OnLine Ori 774, decided on 16-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: A Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J. while dismissing a petition seeking a writ of Quo Warranto, made significant observations upon what constitutes employment under the Central or the State Government, as mentioned under Article 319(d) of the Constitution.

Brief Facts

In the present case, a retired Judge of the Kerala High Court was appointed as the Chairperson of the Kerala State Commission for Backward Classes after serving as Upa Lokayukta. By the instant public interest writ petition, the petitioner seeks to issue a writ of quo warranto against Respondent 1 and further prays to declare Respondent 2 as disqualified for the post of Chairman, Kerala State Commission for Backward Classes citing restrictions under the Constitution and the State Laws.

Observations

               “The concept of employment involves ‘three ingredients: (1) employer (2) employee and (3) the contract of employment. The employer is one who employs, i.e., one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee hereunder the employee agrees to serve the employer subject to his control and supervision.”

  • Hargovind Pant v. Dr Raghukul Tilak, (1979) 3 SCC 458, a member of the Rajasthan Public Service Commission after the termination of his position as the member, was appointed as Governor of Rajasthan. While considering the challenge, in the light of Article 319(d) of the Constitution of India, the Supreme Court observed,

 “Howsoever wide and expansive a meaning we may give to the words employment under the Government of India, the office of Governor cannot come within it. The word ’employment’ is not a word with a single fixed meaning but it has many connotations. On the one side it may bear the narrow meaning of relationship of employer and employee and on the other, it may mean in its widest connotation any engagement or any work in which one is engaged. If the former be the sense in which the word ’employment’ is used in clause (d) of Article 319, the office of Governor would certainly not be an employment, because the Governor of a State is not an employee or servant of any one. He occupies a high constitutional office with important constitutional functions and duties. The executive power of the State is vested in him and every executive action of the Government is required to be expressed to be taken in his name. He constitutes an integral part of the legislature of the State though not in the fullest sense, and is also vested with the legislative power to promulgate ordinances while the Houses of the Legislature are not in session. He is also entitled to address either House of the Legislature or both Houses assembled together and he may send messages to the House or Houses of the Legislature with respect to a bill then pending in the legislature or otherwise. It is the Governor’s report which generally forms the basis for the President taking action under Article 356 of the Constitution. It will be seen from this enumeration of the constitutional powers and functions of the Governor that he is not an employee or servant in any sense of the term.”

 In view of the distinct facts of the present case, the Court reproduced relevant sections of the Kerala State Commission for Backward Classes Act, 1993, Parliament (Prevention of Disqualification) Act, 1959, Legislative Assembly (Removal of Disqualification Amendment) Act, 1979 and the Kerala Lokayukta Act, 1999.

The Court, relying on the above precedents and in the light of the facts and circumstances of the present case observed,

“As such, it is necessary to consider whether the office of Lokayukta is under the Government, that is to say, whether there exists a relationship of master and servant between the Lokayukta and the State. It cannot be disputed that as per the scheme of the Lokayukta Act, to discharge the functions and duties of the office, the Lokayukta is not controlled by the State Government in any manner. The State Government is not at all empowered to ask the Lokayukta to discharge its functions or to perform its duties in the manner which it likes. No doubt, the Lokayukta receives his salary from the State Government. But that is not again the sole criteria to hold that he is under the employment of the State. The post of Lokayukta is an independent statutory post and by no stretch of imagination, can it come under the purview of ’employment under the Government’. As such, we find that, the post of Lokayukta is a public authority, which has public or statutory duties to perform and it is in no way under the control of the State Government. We find that the contention of the petitioner that Lokayukta being the post under the Government, as per Section 24(3) of the Protection of Human Rights Act, 1993, the first respondent is disqualified or ineligible, is devoid of merits.”

Decision

While making the above-mentioned observations, the Court dismissed the instant writ petition filed for issuance of a writ of quo warranto on the lack of merits.[S. Subramaniam v. State of Kerala,  2020 SCC OnLine Ker 4284, decided on 6-10-2020]

Hot Off The PressNews

Former Supreme Court judge and former Lokayukta of state of Karnataka Justice NG Venkatachala has passed away at the age of 89.

Born in an agriculturist family Mittur, Justice Venkatachala obtained Bachelor of Science and Bachelor of Law degrees from Mysore University. He then got enrolled as an Advocate in the then High Court of Mysore on 16 November 1955. He also served as a part-time reader in Mercantile Law from 1958 to 1970 and a legal adviser to the University of Agricultural Sciences, Hebbal from 1963 to 1973 and Bangalore University from 1970 to 1973.

He served as a Government Pleader and was later promoted to high court government advocate which he served till 1977. He was then appointed as additional judge for Karnataka High Court on 28 November 1977 and a permanent judge on 8 September 1978. He functioned as a tribunal for prevention of unlawful activities under the unlawful activities prevention act during the year 1990. He was appointed as the acting Chief Justice for Karnataka High Court in May, 1992. On 1 July 1992 he was sworn in as Judge of the Supreme Court of India which he remained until Jul2 2, 1995.

Sworn in as the Karnataka Lokayukta on 2 July 2001, Justice Venkatachala was best known for rejuvenating the department of Karnataka Lokayukta, the anti corruption agency. He is said to have put the fear of god in the Karnataka administration. Number of complaints the office of Lokayukta was receiving dramatically increased from 20-25 per day to 200-250 per day while Justice Venkatachala was in tenure.He personally led hundreds of raids often lashing out at corruption in political life. In his four and a half years in office, he had looked into more than 50,000 cases of misconduct and complaints from members of the public. He even drew lot of criticism often from politicians who accused him of tarnishing all politicians with the same brush. He was discontinued as Lokayukta for the second term because of legal hurdles although a huge campaign was done in favor of him. 

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Supreme Court: The bench of Ranjan Gogoi and R. Banumathi, JJ sought explanation from the chief secretaries of 12 States and Union Territories as to why they have not appointed a Lokayukta yet. Section 63 of the Lokpal and Lokayuktas Act, 2013, states that every state shall establish a body to be known as the Lokayukta.

The Bench was hearing the petition filed by filed by advocate and Delhi BJP leader Ashwini Kumar Upadhyay in which it was said that the Lokpal and Lokayuktas Act, 2013, received presidential assent on January 1, 2014 and came into force from January 16, 2014 but the executive has not established a Lokpal yet. The PIL has also sought a direction to the states to provide adequate budgetary allocation and essential infrastructure for effective functioning of Lokayuktas. The petitioner, in his petition, had said:

“many State Governments are deliberately weakening the Lokayukta by not providing adequate infrastructure, sufficient budget and workforce.”

The Bench, hence, asked the chief secretaries of Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Puducherry, Tamil Nadu, Telangana, Tripura, Arunachal Pradesh, Delhi and West Bengal to give reasons for not appointing a Lokayukta and to specify by when they would appoint a Lokayukta

The Court has also asked the Chief Secretary of Odisha to apprise the Court about the status of the Lokayukta in State and said the Court has no information whether it has an anti-corruption ombudsman or not.

Source: ANI

Case BriefsSupreme Court

Supreme Court: Directing the Union of India to implement the Lokpal and Lokayukta Act, 2013, the bench of Ranjan Gogoi and Navin Sinha, JJ held that the Act as it stands today is an eminently workable piece of legislation and there is no justification to keep the enforcement of the Act under suspension till the amendments are carried out.

The Union of India had argued that certain provisions of the Act need to be altered to make the provisions thereof workable in a meaningful manner to which the writ petitioners had responded by saying that the very fact that the Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014 has been gathering dust from the date of its introduction in the Parliament i.e. 18.12.2014 would sufficiently demonstrate the lack of executive/legislative will to give effect to a salutary enactment en-grafting a vital requirement of democratic functioning of the Government, namely, accountability of the political executive and those in high echelons of public office, to an independent body i.e. Lokpal.

The Amendment Bill seeks the following major changes/inclusions in the 2013 Act:

  • Inclusion of Leader of the largest Opposition Party in Lok Sabha in the Selection Committee, in lieu of the Leader of Opposition in the present House of People/Lok Sabha(LOP).
  • Limiting the tenure of the eminent jurist, as a Member of the Selection Committee.
  • Absence of any Member of the Selection Committee or a vacancy in the post of any Member will not invalidate the recommendations of the Selection Committee for appointment of the Chairperson or Member of the Lokpal or the appointment of the eminent jurist. Also, appointment of a Member of the Search Committee or the proceedings of the said Committee will not be invalid by reason of either the absence of a Member of the Search Committee or a vacancy in the Selection Committee.

Considering the arguments and the provisions of the Act and the Amendment Bill, the Court said that though it cannot express any opinion on the exercise of the legislative prerogative of seeking changes in the existing law, but the question is whether the Act, as it exists, sans the amendment proposed, is so unworkable that the Court should refuse enforcement. The bench noticed that if, at present, the LOP is not available, surely, the Chairperson and the other two Members of the Selection Committee, namely, the Speaker of the Lok Sabha and the Chief Justice of India or his nominee may proceed to appoint an eminent jurist as a Member of the Selection Committee under Section 4(1)(e) of the Act.

The Court also said that though there is no specific provision akin to sub-section (2) of Section 4 of the Act insofar as the constitution of the Search Committee by a truncated Selection Committee is concerned. But the absence of such a provision, by itself, will not invalidate the constitution of the Search Committee by the truncated Selection Committee when the Act specifically “empowers” a truncated Selection Committee to make recommendations for appointment of the Chairperson or Members of the Lokpal. To hold otherwise would be self-contradictory. [Common Cause: A Registered Society v. Union of India, 2017 SCC OnLine SC 486, decided on 27.04.2017]

 

Case BriefsSupreme Court

Supreme Court: In the ‘money for change of land use’ scam involving Ram Kishan Fauji where it was alleged that no appeal lies against the order passed by the Single Judge of the Punjab & Haryana High Court in exercise of criminal jurisdiction, the 3-Judge Bench of Dipak Misra, A.M. Khanwilkar and M.M. Shantanagoudar, JJ held that  the Letters Patent Appeal was not maintainable before the Division Bench and, consequently, the order passed therein is wholly unsustainable and, accordingly, it is set aside. The Bench, however, granted liberty to the State to assail the order of the learned Single Judge in accordance with law, as the State had been diligently agitating its grievance in a legal forum which it thought had jurisdiction.

The question for determination before the Court was that whether the learned Single Judge, in the obtaining factual matrix has exercised criminal jurisdiction or not. The Court, hence, noticed that the writ petition was filed under Article 226 of the Constitution for quashing of the recommendation of the Lokayukta. The said recommendation would have led to launching of criminal prosecution, and, as the factual matrix reveals, FIR was registered and criminal investigation was initiated. The learned Single Judge analysed the report and the ultimate recommendation of the statutory authority and thought it seemly to quash the same and after quashing the same, as he found that FIR had been registered, he annulled it treating the same as a natural consequence. Thus, the effort of the writ petitioner was to avoid a criminal investigation and the final order of the writ court is quashment of the registration of FIR and the subsequent investigation.

Stating that the nomenclature of a writ petition is not the governing factor but what is relevant is what is eventually being sought to be enforced, the Court held that in such a situation, to hold that the learned Single Judge, in exercise of jurisdiction under Article 226 of the Constitution, has passed an order in a civil proceeding as the order that was challenged was that of the quasi-judicial authority, that is, the Lokayukta, would be conceptually fallacious.

As per the facts of the case, the Chief Secretary to the Government of Haryana in exercise of power under Section 8(1) of the Haryana Lokayukta Act, 2002 (for brevity, “the Act”) made a reference to the Lokayukta, Haryana to enquire into the allegation of bribery levelled in the alleged Compact Disc (CD) of the sting operation against the appellant are correct and whether Change of Land Use (CLU)/Licence was granted in pursuance of these allegations. The Lokayukta, hence, recommended for registration of FIR for offences punishable under the provisions of the Prevention of Corruption Act, 1988. The appellant, hence, filed a Civil Writ Petition before the High Court, seeking issue of writ in the nature of certiorari for quashing of the said order. [Ram Kishan Fauji v. State of Haryana, 2017 SCC OnLine SC 259, decided on 21.03.2017]

 

Case BriefsSupreme Court

Supreme Court: In the petition praying for implementation of the recommendation/report of the Lokayukta Uttar Pradesh, dated 22nd February, 2012, the Court noticed that the law enforcement agencies have moved into action and have collected information and material including with reference to the representations and affidavits received in the course of the said investigation/enquiry.

The report was the outcome of the complaint made by the appellant against Husna Siddiqui, Member of Legislative Council and Naseemuddin Siddiqui, the then Cabinet Minister in U.P for purchasing lands through their income which they earned from unknown sources. The Allahabad High Court, however, refrained from entertaining the writ petition seeking implementation of the report and said that the opinion of the Lokayukta in the report cannot be construed to be final or conclusive as it was a fact finding enquiry and a detailed enquiry is yet to be made after affording opportunity of hearing to the person against whom complaint is made and also that there was no element of public interest in the grievances made by the appellant. The said decision of the High Court was challenged before the Court under Article 136 of the Constitution.

The Counsel appearing for the concerned State Agencies contended that having regard to the voluminous documents and more particularly the need to verify the correctness of the information made available during the investigation/enquiry, it would take some more time to complete the investigation/enquiry in the respective cases. Accepting the said contention, the bench of T.S. Thakur, CJ and A.M. Khanwilkar, J expressed a sanguine hope that the State Agencies would complete the investigation/enquiry at the earliest and not later than six months from the date of this order and take the same to its logical end in accordance with law. [Jagdish Narain Shukla v. State of U.P., 2016 SCC OnLine SC 990, decided on 26.09.2016]