Case BriefsHigh Courts

Madras High Court: K. Murali Shankar, J., addressed the issue with regard to payment of maintenance, whether from the date of application or date of order.

Factual Matrix

In the present matter, the second respondent is the mother and respondents 3 and 4, brothers of the first respondent who had married the petitioner. After a while misunderstandings arose between the petitioner and first respondent due to which they started living separately.

Petitioner had filed a maintenance case earlier and the Magistrate passed an order directing the first respondent to pay monthly maintenance at Rs 5,000 per month to the petitioner and her minor children.

Petitioner’s case

Petitioner stated that in order to avoid the payment of maintenance, respondents conspired and took the petitioner and her children to Chennai so as to resume their cohabitation. In the period of two months that the petitioner lived with first respondent, she was harassed and tortured physically and mentally and the petitioner was forcefully sent out of the matrimonial home by forcibly retaining the minor children.

In view of the above petitioner invoked the provisions of the Protection of Women from Domestic violence Act, 2005.

Trial Court passed impugned order, wherein first respondent was directed to pay the maintenance of Rs 5,000. On not being satisfied with the maintenance amount also the order of the trial court directing the first respondent to pay maintenance from the date of the order, petitioner/wife came forward with the present revision.

Analysis

Section 12 of the Protection of Women from Domestic Violence Act, 2005 does not provide the date from which the maintenance to be awarded and there is no provisions in the Hindu Adoption and Marriage Act with respect to the date from which the maintenance order may be made effective. But, at the same time, Section 125(2) CrPC, contemplates that the Magistrate may award maintenance either from the date of order or from the date of application.

 In the Supreme Court decision of Jaiminiben Hirenbhai Vyas v. Hirenbhai Rameshchandras Vyas, (2015) 2 SCC 385, it was held that Section 125 CrPC, impliedly requires the Court to consider making the order for maintenance effective from either of the two dates, having regard to the relevant facts.

It is neither appropriate nor desirable that a Court simply states that maintenance should be paid from either the date of order or the date of the application in matters of maintenance.

As per Section 354(6) of the CrPC, the Court should record reasons in support of the order passed by it, in both eventualities and that the purpose of the provision is to prevent vagrancy and destitution in society and the Court must apply its mind to the options having regard to the facts of the particular case.

Supreme Court in its decision of Rajnesh v. Neha,2020 SCC OnLine SC 903, after analyzing the provisions in various enactment of the Judgments of the appeal and considering the divergent views taken by the various Courts issued necessary direction to bring about the uniformity in the orders passed by all the Courts.

Right to claim maintenance must date back to the date of filing of the application, since the period during which maintenance proceedings remained pending is not within the control of the applicant. Considering the above, the Supreme Court categorically directed that all the Courts award maintenance from the date of application.

 Conclusion

In the present matter, the petitioner had filed the case in the year 2014 and the impugned order was passed on 11-07-2017.

In view of the above discussion, Court held that it has no hesitation to hold that the impugned order granting maintenance from the date of order is liable to be set aside and the petitioner would be entitled to get maintenance from the date of application.

Hence, criminal revision case was partly allowed. [Mohamed Nisha Banu v. Mohamed Rafi, 2021 SCC OnLine Mad 801, decided on 17-02-2021]


Advocates who appeared for the parties:

For petitioner : S.M. Jinnah

For Respondent: No appearance

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., while retention of custody of an Elephant named ‘Lalitha’ to her caretaker with whom she had stayed for almost 20 years and had an emotional bonding observed that

“Just solutions to legal issues may sometimes lie outside the formal statutory framework. Judges should therefore boldly think outside the box and not feel inhibited or timid.”

The above lines were quoted since the present case pertained to “Lalitha” a female elephant, and Court found light not in the provisions of the Wild Life (Protection) Act, 1972 but in the pages of Peter Wohlleben’s “The Inner Life of Animals”.

Facts

G. Thangappan had originally purchased Lalitha and the ownership certificate for the same was issued. Later the said elephant was bought by Mohammed Aslam and sold her to Kannathu Kunju Mohammed.

Petitioner purchased ‘Lalitha’ in 2000 and the applied to seek transfer of ownership.

While the petitioner awaited for the transfer ownership the said request was rejected in March 2020 with the imposition of penalties for having transported Lalitha from one place to another without permission.

Crux of filing the instant petition

Petitioner sought rejection order in regard to the transfer of ownership to be set aside.

Analysis, Law and Decision

Relevant Provisions

Section 43 (1) of the Wild Life (Protection) Act, 1972 states that no person having in his possession captive animal in respect of which he has a certificate of ownership shall transfer by way of sale or offer for sale or by any other mode of consideration of commercial nature such animal.

Section 39 (3) of the Wild Life (Protection) Act, 1972 states that no person shall, without the previous permission in writing of the Chief Wild Life Warden or the authorised officer acquire or keep in his possession, custody or control, or transfer to any person, whether by way of gift, sale or otherwise any wild animal falling within the purview of the Act.

Was the sale of Lalitha Illegal?

The significant fact noted by the Court was that there could be no dispute that the sale of Lalitha in the first place by Thiru, Thangappan was illegal and subsequent sales were also vitiated.

Since no prior permission was obtained by the petitioner for acquiring Lalitha, the said was rightly rejected and hence the bench upheld the said order to be valid.

Respondents stated that the petitioner will have to surrender possession of the animal for being shifted to the camp maintained by the Forest Department.

Bench considered the above, whether the same could be permitted or not?

Mirror Test

Court while considering the above question observed that:

Elephants are known to be sensitive and possessed of self-awareness. They have passed what is known as “mirror test”.

German naturalist Peter Wohlleben, after years of direct, personal observation, says that animals also feel the very same emotions which the humans are capable of. Feelings of love, grief and compassion are equally found in the animals.

Article 51A (g) of the Constitution of India calls upon us to have compassion for living creatures.

Supreme Court in Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547, after noting that Chapter 7.1.2 of the guidelines of World Organization of Animal Health (OIE), recognizes five internationally recognized freedoms for animals such as (i) freedom from hunger, thirst and malnutrition; (ii) freedom from fear and distress; (iii) freedom from physical and thermal discomfort; (iv) freedom from pain, injury and disease; and (v) freedom to express normal patterns of behavior declared that Sections 3 and 11 of the Prevention of Cruelty to Animals Act, 1960. 

In light of the above-cited case, High Court held that Lalitha is entitled to express her normal patterns of behaviour.

Court noted that Lalitha has been with the writ petitioner for more than twenty years. In all these years, State did not intervene and take her away.  The department was issuing directives from time to time and they were complied with by the petitioner.

Further, it was noted that a Microchip has been implanted in Lalitha’s body so that her movements could be tracked. It seemed that Lalitha developed a great bonding with her caretakers.

Forcible relocation in alien surrounding would traumatize Lalitha.

Hence, the approach to be adopted in the instant matter is to be similar as the one in child custody cases.

Surprise inspection

Bench made a surprise inspection and found that Lalitha was being sumptuously fed and the fact that pleased the most was her not being chained at all. In fact, Lalitha looked happy and healthy.

Lalitha’s Maintenance

Caretakers were questioned by the Bench in regard to Lalitha’s maintenance to which they responded that she is taken to some well-known temples and Dargas, wherein she is paid for her majestic participation, her dignity is maintained intact.

Bench in light of the above stated that there was no exploitation to which Lalitha was being subjected.

Peter Wohlleben in the chapter “In the Service of Humanity”, in his Book remarks that when the log-haulers are kind and give rest to their horses, the animals are eager to work. One can find a similar human-animal partnership with shepherds and their dogs which also follow verbal commands. This is another example of animals taking pleasure in their work, as we can clearly see if we watch sheepdogs racing around a flock of sheep to round them up (Page 251).

Further, the Court also expressed that the veterinarians appointed by the department certified that Lalitha was being maintained properly by the petitioner.

A psychological wound would be caused to Lalitha if she will be removed from petitioners’ custody. Hence the present arrangement needed to be continued.

Another significant and essential point which was noted by the Bench was that Lalitha’s usual place of stay was a coconut groove and there was an R.O. Plant as well. The said land was owned by Thiru. Pothiraj who gave in writing to the Court that the said land will not be sold during the lifetime of Lalitha.

High Court took inspiration from the following statement of law:

“The courts now recognise that the impact on the administration is relevant in the exercise of their remedial jurisdiction. Quashing decisions may impose heavy administrative burdens on the administration, divert resources towards re-opening decision, and lead to increased and unbudgeted expenditure. Earlier cases took the robust line that the law had to be observed, and the decision invalidated whatever the administrative inconvenience caused. The courts nowadays recognise that such an approach is not always appropriate and may not be in the wider public interest. The effect on the administrative process is relevant to the courts’ remedial discretion and may prove decisive.”

[Passage approvingly quoted by the Supreme Court in (1994) 1 SCC 648, Malaprabha Co-Operative Sugar Factor v. Union Of India]

In light of the above passage, Court held that the administrative decision may be found to be valid in law and yet there can be no sequitur.

In the present matter,

the rights of the animal are more relevant and they determine the adjudicatory outcome and not the formal validity of the administrative order.

For the above reason, Court disposed of the petition and upheld the impugned order by directing the respondents to permit the petitioner to continue to keep the custody of Lalitha. [S.G.M. Shaa v. Principal Chief Conservator of Forests and Chief Life Warden,  2020 SCC OnLine Mad 6242, decided on 10-09-2020]

Case BriefsHigh Courts

Madras High Court: The Division Bench of N. Kirubakaran and B. Pugalendhi, JJ., asked the State Government to file a report in the matter of lack of road to the graveyard for Scheduled Caste people due to which they are forced to pass through the agricultural ground with standing crops.

Petitioner sought a writ of mandamus, directing the respondent to provide pathway/road having access to burial ground from the villages where Adi Dravidar people have been residing so as to enable them to tale the dead bodies to the burial ground peacefully within the time stipulated by this Court.

Decision

“We have to hang our head in shame for having ill-treated and discriminated the Scheduled Caste people for centuries together.”

Bench added that since the Scheduled Caste people were not properly treated and offences committed against members of SCs and STs and rehabilitating the victims, the Centre passed the ‘The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989’, to give the dignity to prevent the crimes against members of Scheduled Castes and Schedule Tribes.

Even though the above stated Act was passed, yet the SC-ST people are not getting treated properly and offences are continuing.

In the instant case, a newspaper report published that there is a lack of road to graveyard forced Scheduled Caste people to pass through agriculture fields with standing crops.

Since no road facility has been provided to these people, they were compelled to carry the dead body through the fields with standing crops and put them to unnecessary trouble and untold hardships.

In light of the above, the Court stated that

Not only living persons but also dead bodies should be given dignity. The Scheduled Caste people should have roads to graveyards.

Court in view of the above opined that the issue reported is taken as a suo motu public interest litigation.

Respondents are directed to file a report with regard to the following queries:
(a) How many Scheduled Caste Habitations are located in the State of Tamil Nadu?
(b) Whether all the Scheduled Caste Habitations have got drinking water facilities, street lights and toilet facilities as well as roads to the graveyards?
(c) How many Habitations do not have roads to graveyards?
(d) What are all the steps taken, including the acquiring of lands for laying of roads for graveyards?
(e) By what time, all the Schedule Castes Habitations would be provided with water facilities, street lights toilet facilities as well as pathways to the graveyards?

[Registrar (Judicial) v. Secy. to Government; Suo Motu WP (MD) No. 19594 of 2020; decided on 21-12-2020]

Case BriefsHigh Courts

Madras High Court: B. Pugalendhi, J., while addressing a petition, observed that,

“An impartial investigation is the basic requirement for any investigation. A fair investigation is also a part of constitutional right guaranteed under Articles 20 & 21 of the Constitution of India.”

“Majority of people are now hailing the police encounters and majority of people are now opting for other modes of redresses, like Kangaroo Courts, etc.”

Respondent had filed a final report against the Appellant for the offence under Sections 341, 302 and 394 r/w 397 of Penal Code, 1860.

Trial Court did not find the appellant guilty for the offence under Section 394 r/w 397 IPC but found him guilty for the offence under Section 341 and 304 (ii) IPC.

Property Dispute

Deceased Senthil had a property dispute with the family of one Ponnusamy.

Ponnusamy’s brothers Udayar and Jeyaraman; and one Sabarimalai surrounded the deceased was stabbed.

Mohideen Basha, Counsel for the appellant and Robinson, Government Advocate [Crl Side].

Decision

Bench noted certain lapses in the investigation of the present case.

High Court called the CD file to find out the manner in which the investigation was conducted.

Further, the Court stated that the investigation agency acted in a casual manner, so as to bury the truth and the real accused, who committed the brutal murder on a poor man escape from the clutches of law.

Hence, the appeal was allowed and the conviction and sentence imposed on the appellant were set aside.

Supreme Court’s decision in Popular Muthiah v. State, (2006) 7 SCC 296, was also cited.

The investigation must be unbiased, honest, just and in accordance with the law. The purpose of the investigation is to bring out the truth of the case before the Court of law.

In the present matter, it has been obliterated and the investigation has proceeded in a causal manner as to the whims and fancies of the investigation agency.

Court added that,

“1000 culprits can escape, but, one innocent person should not be punished.”

The available materials, in this case, expose the perfunctory and designed investigation and therefore, this Court is left with no other option except to interfere with the judgment of conviction passed by the trial Court.

A Crime is a public wrong, which involves the public rights of the community as a whole and also harmful to the society in general.

Criminal Justice System

It was also stated that the responsibility of the investigation agency in the criminal justice system plays a major role and they are, in fact, the kingpins in the criminal investigation system.

We are taking pride that the Tamil Nadu State Police is one of the best investigation agencies in the World and it is because of the exemplary service rendered by our police officers.

We cannot allow this reputation of the agency to be eroded by some irresponsible officers.

— Madras High Court

Further, the High Court also observed that the Tamil Nadu Police Reforms Act was enacted in the year 2013, yet it has not been implemented in letter and spirit.

Investigation

An investigation is not a mechanical work, which can be conducted in a casual manner, it requires expertise, knowledge and technical skills to collect the materials, which could unearth the truth.

Concluding the decision, Court stated that the accused can be declared innocents and can be set at liberty, either on the merits of the case or on the lapses committed by the Department. If it is on the lapses committed by the Department, steps should be taken on the side of the Department to avoid the same.

An innocent person does not deserve to suffer the turmoil of long drawn litigation, spanning over a decade or more.

Court placed certain queries for the State and DGP to give their response which are as follows:

i) How the investigation officers are equipped with the knowledge and expertise in conducting a criminal investigation and how it is ensured by the superior officials?

ii) Whether any disciplinary proceedings have been initiated as against the officials, who are responsible for acquittal because of their perfunctory investigation?

iii) How the superior officers, namely, the Deputy Superintendent of Police, Additional Superintendent of Police, Superintendent of Police, Deputy Inspector General of Police and Inspector General of Police are monitoring the investigation?

iv) In the case of lapses in the investigation, whether the investigation officer alone is responsible or the higher officials, who are expected to monitor the investigation, are also responsible?

v) The steps taken by the Government in fully implementing the decision of the Supreme Court in Prakash Singh v. Union of India, (2006) 8 SCC 1 and the Tamil Nadu Police Reforms Act, 2013, in letter and spirit, in all the police stations.

vi) The steps taken by the Government in implementing the decision of the Supreme Court in State of Gujarat v. Kishanbhai, (2014) 5 SCC 108.

vii) The steps taken by the Government and the Department, to implement the amendments made to Sections 161, 164 and 275 CrPC?

viii) The steps taken by the Government and the Department, to implement the amendments to Sections 161, 164 and 275 CrPC, pursuant to the direction of the Division Bench of this Court in Satheesh Kumar’s case (supra).

ix) Whether the Circulars issued by the Director-General of Police then and there are strictly complied with? In the event of non-compliance, whether any disciplinary proceedings are contemplated against them and if so, the details thereof.

x) Whether the circulars issued by the Director-General of Police are readily available in all the police stations, in the form of a manual and whether they are available in the common platform, such as websites, so that, it can be accessed by the general public?

xi) The existing mechanism to enhance the quality of investigation among the investigation officers and the ways and means to enhance the same as to the present-day scientific advancements.

xii) The possibility of issuing a checklist including the steps to be carried out by the investigation officers, step by step, depending upon the nature of crime and the applicability and training using advanced scientific techniques, like fixing the accused using call details and tower location, etc., and how such collected details be marked/produced before the Court.

xiii) Why not compensation of Rs 10,00,000 be awarded to the victim in this case, who suffered because of the perfunctory investigation, which could be recovered from the investigation officers, namely, PW 12, Thiru N. Muthukumar; and PW 14, Thiru Poun and the Deputy Superintendent of Police, Sivagangai concerned?

xiv) The Secretary to Government, Home, Excise and Prohibition Department; and the Director-General of Police, Chennai, shall give their comments/proposal as to the present case and the further course of action, if any, in view of the fact that ten years have lapsed since the commission of offence.

xv) Ways and means to address the issue raised & to effectively overcome the same.

xvi) Any other suggestions to avoid the acquittals due to such perfunctory investigations, in future, so as to regain the losing glory of the Department.

The present matter listed for 22-09-2020. [Balamurugan v. State, 2020 SCC OnLine Mad 2165, decided on 08-09-2020]

Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., while addressing a motor accident claim, observed that,

Once, the policy is contractual in nature and the parties have signed the agreement, then such a contract cannot be construed or brought within the ambit of statutory liability.

The Cholamandalam MS General Insurance Company Limited is the appellant. Respondent/Owner of Tata Indica Tourist Taxi TN-32-L-8595 dashed against the palm tree on the roadside due to unavoidable reasons, causing road traffic accident.

Respondent filed the claim petition under Section 163 of the Motor Vehicles Act seeking compensation of Rs 2,00,000 from the Insurance Company.

The Claim Petition was filed only against the appellant/Insurance company as the respondent car was insured with the appellant/Insurance company.

Appellant though defended the claim petition on the ground that the respondent was not some third party infcat he was the owner of the vehicle, therefore no statutory coverage in terms of Section 147(1) of the Motor Vehicles Act, 1988 can be granted.

The Claim Petition was filed under Section 166 of the Motor Vehicles Act. However, the Tribunal has referred the Claim Petition as if it was filed under Section 163A of the Motor Vehicles Act. However, misquoting of the provision could not disentitle the claimant from availing the rights.

Tribunal directed the Insurance Company to pay the compensation to the respondent.

Bench on perusal of the facts and circumstances of the present matter, stated that in the absence of any statutory liability on the part of the Insurance company, the provisions of the Motor Vehicles Act cannot be invoked nor an adjudication can be done before the Tribunal.

The very purpose and object of the Motor Accident Claims Tribunal are to adjudicate the Claim Petitions and grant ‘just compensation’ with reference to the provisions of the Motor Vehicles Act.

If a particular Personal Accident Policy is contractual in nature, then statutory liability cannot be fixed on the Insurance company.

Contractual liability cannot be equated with statutory liability.

Owner’s Package Policy with reference to the Personal Accident Cover for owner-cum driver is contractual in nature. There is no third party involvement with reference to the Personal Accident Cover.

Tribunal granted compensation beyond the agreed contract between the parties to the Personal Accident Cover.

The Tribunal is bound to see the nature of the insurance policy as well as the coverage with reference to the terms and conditions stipulated, which were agreed between the parties.

Court added that in the vent of no coverage under the policy, the insurance company cannot be held liable to pay compensation.

No person is entitled to claim any benefit beyond the scope of the terms and conditions agreed between the parties.

MV Act being a Special Legislation and the Motor Accident Claims Tribunal constituted to deal with the Accident Claims specifically under the provisions of the Motor Vehicles Act, the tribunal has no jurisdiction to deal with all other policies issued by the Insurance Company, which all are contractual in nature and the terms and conditions agreed between the parties specifically.

Insurance Policy

Motor Vehicle policies are issued by the Insurance company for the purpose of grant of compensation and the language employed is “Compensation”. However, the Personal Accident Coverage Policy reveals that it is “benefit” is to be granted.

Motor Accident Policies are strictly within the ambit of the provisions of the Motor Vehicles Act. The Personal Accident Coverage Policy is strictly in accordance with the terms and conditions agreed between the parties.

Court also added that the tribunals are bound to look into the nature of the Policy at the first instance, before entertaining the Claim Petition as the tribunal cannot adjudicate the terms and conditions agreed between the parties in a contract and grant compensation under the Motor Vehicles Act.

In the present case, the Personal Accident Coverage Policy has been agreed between the insurance company and respondent under the Personal Accident Coverage Policy of amount Rs 2,00,000.

For availing the benefit of the Personal Accident Coverage Policy, the respondent/claimant has to establish the nature of the ‘disablement’ and the same is to be established before the competent Court of law and the Motor Accident Claims Tribunal is not empowered to entertain the Claim Petition under the Motor Vehicles Act.

Hence if the Insurance Company has deposited any award amount before the Tribunal, then they can withdraw the said amount with accrued interest.[Cholamandalam MS General v. Ramesh Babu, 2020 SCC OnLine Mad 2164, decided on 02-09-2020]

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., while addressing the contempt petition held that,

“The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation.”

Petitioners Counsel, N.G.R Prasad and Sathish Parasaran, Senior Counsel on behalf of the respondent, represented the parties in the present matter.

Maintainability of Contempt Petition

Court’s view in the present matter was that the Court need not venture into rendering its findings on the contentions raised on either side since the very maintainability of the Contempt Petition is in question.

Final orders were passed in the petition on 06-02-2020, respondent took the matter on appeal in W.A. No. 252 of 2020 and Division Bench dealt with the case on merits and partly allowed the Writ Appeal.

Once an order has been passed in the Writ Appeal and the order passed by the Single Judge is modified and the Writ Appeal is partly allowed, the order of the Single Judge merges with the order passed in the Writ Appeal.

The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation.

Reference to the Supreme Court decisions in Kunhayammed v. State of Kerala, (2000) 6 SCC 359 and Shanthi v. T.D. Vishwanathan, (2019) 11 SCC 419, was made.

Bench in view of the above decisions held that the contempt petition filed before the Single judge is not maintainable since the order of the Single judge has merged with the order passed by the Division Bench in the writ appeal.

Adding to the above, Court also stated that if the petitioner feels that the order has been violated or disobeyed, a Contempt Petition can be maintained only before the Division Bench and not before the Single Judge.

Hence, the Contempt Petition was closed.[All India Union Bank Officer v. Brajeshwar Sharma, Contempt Petition No. 570 of 2020, decided on 31-08-2020]