Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In an appeal filed challenging the judgment passed by the Single Judge whereby the writ petition of the Appellant was dismissed on the ground that it was not maintainable as Gems & Jewellery Export Promotion Council (GJEPC) did not fall within the ambit of State under Article 12, a Division Bench of Satish Chandra Sharma CJ., and Subramonium JJ., held that the writ petition would not be maintainable as the GJEPC, does not fall within the ambit of “State” and “other authorities” under Article 12 as GJEPC does not satisfy any of the requirements or tests laid down by various Judgements of the Supreme Court for establishing whether or not an authority can be deemed to be a “State” under Article 12 or not.

The Court noted that Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the government within the sweep of the expression “State”. The State control, however vast and pervasive, is not determinative. The financial contribution by the State is also not conclusive. The combination of State aid coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is “State”.

Placing reliance on Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 and Zee Telefilms. Ltd. v. Union of India, (2005) 4 SCC 649, the Court observed that the control that must be exercised by the State over the authority should be pervasive in nature to the extent that the authority should have limited autonomy. These are the broad guidelines that must be borne in mind when venturing into the question as to whether or not a certain authorities can be termed to be a “State”.

Thus, the Court analyzed MoA, AoA and other documents to discern whether GJEPC can be brought within the net of “other authorities” for the purpose of Article 12 and observed that a deep dive into the AoA and MoA of the GJEPC only brings forth the understanding that the GJEPC is a nodal agency, meant to mediate between exporters of gems and jewellery, and the Central Government.

The Court further noted that the function performed by the GJEPC cannot be termed as “public duty” and any administrative or financial hold that the Central Government is deemed to have over GJEPC is far from pervasive. The GJEPC retains its autonomous character and it is the CoA which not only looks after the affairs of the GJEPC, but is also empowered to make rules and regulations with regard to conditions of service, appointment, elections, etc. GJEPC does not satisfy any of the requirements or tests laid down by various Judgements of the Supreme Court for establishing whether or not an authority can be deemed to be a “State” under Article 12.

The Court thus, held that the impugned judgement wherein it was held that the writ petition would not be maintainable as the GJEPC does not fall within the ambit of “State” and “other authorities” under Article 12 of the Constitution of India, is legally firm and does not require any interference on the part of this Court.

[Jitarani Udgata v. Union of India, 2022 SCC OnLine Del 3449, decided on 17-10-2022]


Advocates who appeared in this case:

Mr. Anoop Chaudhari & Ms. June Chaudhari Senior Advocates with Mr. Samarth Chowdhary, Advocate, for the Appellants;

Mr. Vivekanand Mishra & Mr. Aayushmaan Vatsyayana, Advocates, for the Respondent 1.

Mr. Jayant Mehta, Senior Advocate with Mr. Aman Raj Gandhi, Mr. Vardaan Bajaj & Mr. Abhishek Tiwari, Advocates, for the Respondent 2.


*Arunima Bose, Editorial Assistant has put this report together.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In an appeal filed under Section 378 of Code of Criminal Procedure (CrPC) against the judgment passed by the trial court, acquitting Mukhtar Ansari of all charges under Sections 353, 504, 506 the Penal Code, 1860 (IPC), Dinesh Kumar Singh, J. has convicted Mukhtar Ansari for offences under Sections 353, 504, 506 IPC and sentenced him to undergo rigorous imprisonment for 2 years with fine of Rs. 10,000/- for offence under Section 353 IPC. Further, for an offence under Section 504 IPC, he is sentenced to undergo rigorous imprisonment for 2 years with fine of Rs. 2,000/- and for the offence under Section 506 IPC, rigorous imprisonment for 7 years with fine of Rs 25,000/-.

In the present case, the complainant was a jailer in the prison where former Uttar Pradesh M.L.A Mukhtar Ansari is a prisoner, in 2003 some people had come to meet Mukhtar Ansari and the complainant ordered for their frisking, on which Mukhtar Ansari got highly annoyed and abused him and took revolver from one of the persons and pointed it towards the complainant and gave him death threats.

The Court observed that Mukhtar Ansari has reputation of most dreaded criminal and mafia don who had more than 60 cases of heinous offences to his credit, and no one can dispute his credibility of striking terror and fear in the minds and heart of the people including the Government officials. Further, during his incarceration in jail, he had committed several heinous offences including elimination of his political rivals, kidnapping/abduction, usurping private and public properties, amassing wealth and properties from proceeds of crime. Even inside the jail, his people would come to meet him without any hindrance created by any jail staff and the warden opened the gate and allowed the people to meet Mukhtar Ansari, out of his fear and terror.

The Court further observed that the complainant did not have any enmity with Mukhtar Ansari, and it appears that he was trying to enforce rules inside the jail and, therefore, ordered that no visitor should be allowed to meet the prisoners unless permission is granted.

It was also observed that one of the witnesses in his examination-in-chief, had said that Mukhtar Ansari got highly enraged by the fact that the Jailer was not allowing visitors who had come to meet him inside the jail without permission and he took out a revolver from one of the visitors who and extended verbal threats of killing the complainant. However, the said witness was not cross examined on 12.12.2003 when his examination- in- chief took place. Thus, the Court accepted the submission of the complainant that when the said witness was influenced by Mukhtar Ansari, an application came to be filed to recall the said witness, which was allowed by Trial Court, and then the witness to some extent did not support the prosecution case in his cross examination.

The Court placed reliance on the ruling in Dayaram v. State of M.P., (2020) 13 SCC 382, wherein it was held that “even if the witnesses were declared hostile during their cross-examination, their testimony, prior to cross-examination can be relied upon” and further took note of the ruling in Ramesh v. State of Haryana, (2017) 1 SCC 529, wherein it was held that “evidence of a hostile witness cannot be totally rejected but requires its closest scrutiny and portion of evidence which is consistent with the case of the prosecution or defence may be accepted”. Thus, viewed that evidence of a witness who has supported the prosecution case in examination-in-chief does not get effaced or washed off the record altogether and in such a situation, it is the duty of the Court to examine the evidence carefully and find that part of evidence which can be accepted and be acted upon. Thus, there is no legal bar for conviction upon the testimony of hostile witness, given in examination-in-chief, if it is corroborated by other reliable evidence.

The Court observed that Criminal case is built on edifice of evidence which is admissible in Law and referred to the decision in Swaran Singh v. State of Punjab, (2000) 5 SCC 668, wherein the Court observed that “criminal cases can be adjourned again and again till the witness gets tired or gives up. Adjournments are taken till the witness is no more or is tired. This results in miscarriage of justice. The witness is not treated with respect in the Court”.

Placing reliance on the ruling in Radha Mohan Singh v. State of U.P., (2006) 2 SCC 450, the Court observed that law is very clear that appellant court should not interfere with the judgment and order of acquittal unless the said judgment is perverse, or the view taken by the learned Trial Court is impossible view. Further, it is well settled that testimony of hostile witness does not get effaced completely and washed off record, and it is for the Court to closely scrutinize the testimony of such witness in the facts and circumstances of the cases and take into consideration while convicting or acquitting the accused on that part of the testimony which supports the prosecution case and can be relied on for convicting the accused.

It was also observed that “the witness who was given threats of life by pointing a revolver by Mukhtar Ansari, has fully supported the prosecution case in all respects in his examination-in-chief. Further, he does not have any enmity with Mukhtar Ansari, and there was no reason to falsely implicate him. Thus, there is no reason to disbelieve his testimony given in examination-in-chief and his testimony in cross examination which takes place after he could have been won over, does not appear to be credible”.

Thus, the Court observed that the Trial Court had completely ignored the evidence of that hostile witness given in examination-in-chief and had only considered his cross examination. Thus, the approach of the trial Court is palpably erroneous and against the well settled legal position, hence, the impugned judgment and order passed by the Trial Court is unsustainable. Further, the complainant was discharging public/official duty on the date, time and place of the incident and as Mukhtar Ansari used criminal force by pointing pistol towards him with intent to prevent and deter the complainant from discharging his duty as a Jailer, therefore, offence of assault or criminal force to deter public servant from discharge of his duties under Section 353 IPC, is clearly proved against Mukhtar Ansari and he is convicted for committing the said offence.

Moreover, Mukhtar Ansari abused the complainant and insulted him knowing that it would undermine the authority of the Jailer and would cause breach of peace inside the jail and outside inasmuch as if a public servant can be humiliated and abused, then authority of public functionary would get diminished, and people would not respect the lawful authority. Therefore, Mukhtar Ansari was also found guilty under Section 504 IPC i.e. intentional insult with intent to provoke breach of the peace, and as Mukhtar Ansari took pistol from a visitor and pointed towards the complainant and threatened him for his life. Thus, he is also guilty for criminal intimidation under Section 506 IPC.

[State of UP v. Mukhtar Ansari, 2022 SCC OnLine All 654, decided on 21.09.2022]


Advocates who appeared in this case:

Counsel for Appellant:- Government Advocate

Counsel for Respondent:- Advocate Abhishek Misra

Advocate Karunesh Singh

Advocate Satendra Kumar

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: P.V. Asha, J. allowed the writ petition questioning status of IDBI Bank as “State” under Article 12 of the Constitution and further stated that the acts of public sector undertakings arising out of contractual transactions between the parties will not fall under the term “public duty” to attract the Court’s jurisdiction.

Brief facts of the case are such that the petitioner challenged the demand of Rs 11,00,000 as a processing fee of a credit facility and retaining of original property documents as security against such facility as arbitrary and illegal, hence, being violative of his fundamental rights. The petitioner, while relying on R.D.Shetty v. International Airport Authority, (1979) 3 SCC 489, contended that as per the order passed by the RBI, IDBI would be treated as a private bank only for regulatory purposes and it would continue to be a public sector bank for all other purposes. It was further argued that IDBI is controlled by the Central Government and it is always under the watch of Central Vigilance Commission.

Counsel for the respondent challenged the maintainability of Petition stating that respondent bank does not perform any public or statutory or sovereign function and it does not enjoy any monopoly in the banking. It was argued that its function is confined to commercial activities and the Central Government does not have any deep or pervasive control over its functioning.

The court dismissed the petition, holding that providing of credit facility or loan on the strength of title deeds given against security cannot be said to be done in discharge of any public function. Hence, even when the bank is a public sector bank, demand for a processing fee or withholding of title deeds towards security cannot be said to be one involving any element of public duty. Therefore, IDBI is not amenable to writ jurisdiction. [Unimoni Financial Services Ltd. v. IDBI Bank Ltd., 2020 SCC OnLine Ker 7347, decided on 16-12-2020]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and Madhav Jamdar, JJ., reiterated that in times of this peculiar pandemic, it is the duty of every right-thinking person to balance their religious duties with public duty and their responsibility towards the rest of mankind.

Petitioner sought directions against respondents to allow the members of the Jain community to visit the Jain Temples and to perform prayers.

Petitioners moved for urgent reliefs to the extent that during the holy period of ‘Paryushan’ they should be permitted to visit Jain Temples.

Court by its order dated 11-08-2020 directed the Secretary Disaster Management to consider the representation of members of the Jain Communityore particularly the submission of the petitioners that if the malls and market places, barber shops, spas, salons, beauty parlours, liquor shops, etc. can be operated with certain restrictions, why the Jain devotees should not be allowed to visit the places of worship to offer prayers and/or to perform rituals with similar restrictions.

Secretary Disaster Management stated that State of Maharashtra is amongst the most affected States in India and has been adopting various precautionary measures to contain the pandemic.

Further, it was added that the Government of India has in all its orders, consistently and consciously mentioned that, “States/UTs based on their assessment of the situation, may prohibit certain activities outside the containment zones or impose such restrictions as deemed necessary.”

Prevailing position in the State of Maharashtra demands a conscious policy decision of closure of all worship places and not to permit any religious congregations.

Hence, taking into consideration the prevailing circumstances and situation in the State of Maharashtra acceding to the petitioner’s request will not be possible.

High Court in view of the facts and submission of the Secretary Disaster Management stated that the members of the public should appreciate that the Centre as well as the State Government, who despite being over burdened, have left no stone unturned in taking all possible measures to safeguard the public health of its citizens, and that the said restrictions are imposed in their larger interest.

However, the bench did not dispose of the petition and placed the same for directions on 07-09-2020. [Ankit Hirji Vora v. UOI, OS-WP-LD-VC-259 of 2020, decided on 13-08-2020]

Hot Off The PressNews

Supreme Court: A Bench of Arun Mishra and MR Shah, JJ has issued notice to Centre and all the State governments on a petition against the continued deaths of children who fall into borewells and the negligence shown by authorities to prevent such tragedies.

The plea filed by advocate GS Mani said authorities remain negligent about safety measures concerning borewells despite Supreme Court directions in 2010. The advocate cited several news reports of borewell deaths in Madhya Pradesh, Gujarat, Tamil Nadu and Maharashtra over the years after the court issued directions. Citing the failure of the government at the State and Central levels to comply with the Supreme Court 2010 guidelines to prevent bore well/tube well deaths, the plea said that such deaths have been reported across the country.

The plea was filed in October 2019 in the wake of the death of two-year-old Sujith Wilson, who got trapped in an abandoned borewell near Tiruchi in Tamil Nadu. Not only Tamil Nadu State authorities failed to take any steps to prevent the death of small children who fall into abandoned or open bore wells and tube wells, but they have failed to implement or comply with the directions issued by the Supreme Court in this regard, the petition stated.

“After the 2010 Supreme Court judgement was passed, there have been several incidents clearly evincing the total failure of the government to do their part to prevent the death of innocent children from falls into such wells,”

Immediate, necessary action and punishment be ordered against erring government officials for non-compliance with these precautionary measures, it demanded.

(Source: ANI)

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: Mahinda Samayawardhena, J. entertained a writ petition where the petitioner sought, certiorari and to compel the Commercial Superintendent of Sri Lanka Railways by mandamus to allow him to continue to use the parking area which was allotted to him for the said purpose.

The petitioner contended that the Deputy Commercial Superintendent of Railways had allotted him a temporary parking area in the premises of the Wadduwa Station on a rental basis for the term of 1 year. The said document which gave authorization to the petitioner to run such parking area also had a condition that whenever required the petitioner will hand over unconditionally the allotted area back to the respondent. In the instant writ, the petitioner was aggrieved by the said condition imposed on him. He further contended that the parking area had been used to earn his living and now such a decision of the respondent will put him and his family in jeopardy.

The respondent contended that though by the informal document, temporary permission was given to the petitioner (to do business) only for one year; he had continued to use that area beyond the said permissible term for four years. Commercial Superintendent of the Railways had asked the petitioner to hand over the possession of the parking area to the Railway Master of the Wadduwa Railway Station as that area is required to the Railway Department.

The Court observed that, it was quite obvious that the order issued for dispossession cannot be quashed by certiorari as the said decision was neither illegal nor unjustifiable. By informal document, the petitioner had been temporarily allowed to use the State land for a period of one year, and thereafter he used it for another around four years (by payment of a monthly rent) without any objection from the respondents. The Court noted that such an allotment was temporary hence the argument of the petitioners was not sustainable. “There is no room for the petitioner to have a legitimate expectation that he could continue to use the State land in the Wadduwa Railway Station premises to carry out a business for a profit forever.”

The Court further held that, there was absolutely no public duty on the part of the General Manager/Commercial Superintendent of Sri Lanka Railways to allow the petitioner to occupy the said State land to conduct his private business. Nor the petitioner had any legal right to insist on the said officials to do so. Court observed that such writ had no public interest and was a merely private affair.[Kapuseekuge Sunil Fernando v. General Manager of Sri Lanka Railways, 2019 SCC OnLine SL SC 5, decided on 04-06-2019]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: The Bench comprising of Goutam Bhaduri, J. allowed an appeal concerning the defamatory publication made against two doctors in a newspaper.

In the present case, it has been stated that the appeal was filed against the judgment and decree passed by Additional District Judge, Manendragarh, wherein suit for damages of Rs 1,00,000 was dismissed for alleging defamatory publication in newspaper on the ground that justification of truth exists on the published news item and after dismissal, this appeal value was reduced to Rs 50,000 for damages.

Facts of the case are that, the two doctors namely Dr PP.K. Niyogi and Dr C.P. Karan have acquired reputation and name by their work of extending different medical help to people. Defendant Praveen Nishi, was a Publisher, Printer & Chief Editor of newspaper namely Ghoomta Darpan, who had published a piece of news that the doctors are committing dacoity with the poor in a piece of news. Further, it was published that the plaintiffs without any reason used to give the injection to the patients and recover Rs 40-50/- fees along with tests, sonography etc. Therefore, plaintiffs stated because of the said publication, plaintiff’s image was tarnished.

Defendant had averred that the publication of news was made in the public interest and in all bonafide without any intention of damaging the reputation of plaintiffs. Court framed three issues and dismissed the suit.

As stated by Mr Nishikant Sinha & Mr Shakti Raj Sinha, Advocates for the appellant, the plaintiffs refused to give an advertisement to the newspaper of the defendant, as revenge, false publication of the news was made without any proof thereof. Further stated that, the evidence categorically shows that the damage was done to the reputation to which truth was absent.

“Mere levelling the allegation against the doctor without any substance or proof, the presumption cannot be drawn that it was in the discharge of a public duty.”

Reliance was placed on the decision of the Supreme Court in Sewakram Sobhani v. R.K. Karanjia, Chief Editor, Weekly Blitz; (1981) 3 SCC 208, in which it was held that:

“The truth of an allegation does not permit a justification under the first exception unless it is proved to be in the public good. Question whether or not it was for public good is a question of fact like any other relevant fact in issue.”

Thus, the High Court stated that the aforesaid principle would go to show that the said privilege which has been claimed by the defendant as the editor cannot be accepted consequently it can be completely insulated by presumption or justification or truth. The defence which has been raised by the respondent that it was in public interest in a defamatory damages suit may not be squarely applicable and accepted. Besides that, there was no evidence on record that such public interest exists. The evidence is an opinion.

“Justification or truth never existed for which the suit was dismissed by the Court below.”

The appeal was allowed and suit decreed for Rs 50,000 as against damages. [P.K. Niyogi v. Praveen Nishi, 2018 SCC OnLine Chh 680, decided on 03-12-2018]

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: A Single Judge Bench comprising of Ajay Rastogi, CJ, dismissed a revision petition filed against the order of the trial Judge whereby he refused the application filed by the petitioner-plaintiff for seeking expert opinion to prove medical negligence against the respondent-defendant.

A case was filed by the plaintiff against the defendants (doctors) alleging medical negligence against them. The defendants filed written statements and thereafter, an application was moved by the plaintiff for referring the matter for expert opinion from the doctors of AIIMS or Christian Medical College, Vellore. The trial Judge, without allowing the said application, directed the matter to be listed for cross-examination. The plaintiff filed the instant revision against Order of the trial Judge. The High Court observed that the plaintiff moved the said application on the ground that the experts belonged to the same fraternity as that of the defendant doctors and therefore nobody would come forward against them; thus direction was sought from the Court to summon for expert opinion. The Court held that the plaintiff drew her own impression that no expert would opine on the matter. Her suspicion was without any foundation. The Court held that the defendants, who were professionals, were discharging legal duty to the public and no inference could be perceived by the Court on basis of plaintiff’s mere perception. Accordingly, the instant petition was dismissed. [Prabati Das v. State of Tripura, 2018 SCC OnLine Tri 60, order dated 3-5-2018]