Legal RoundUpSupreme Court Roundups

“No doubt, that a Judicial Officer while discharging his/her duties, is expected to be independent, fearless, impassionate and non-impulsive. But a Judicial Officer is also a human being. A Judicial Officer is also a parent. He/she could be a father or a mother. “

X v. High Court of MP

2022 SCC OnLine SC 171


STORY OF THE MONTH


Harassed, transferred, left with no choice but to resign: Read how this MP District Judge won half the battle in alleged sexual harassment case as SC orders her reinstatement

The resignation by the petitioner was on account of exasperation and frustration actuated by a thought, that injustice was being meted out to her by the very Institution of Judiciary.

The Court observed that,

“… in a gruesome battle between a mother and a Judicial Officer, the Judicial Officer lost the battle to the mother.”

Read more…


UNMISSABLE STORIES


Fraudulent Trading| SEBI must disclose all relevant material, including Investigation Report, to noticee except certain sensitive information

“If the report of the investigation authority under Regulation 9 has to be considered by the Board before satisfaction is arrived at on a possible violation of the regulations, the principles of natural justice require due disclosure of the report.”

Read more…

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Supreme Court rejects default bail plea of Rahul Modi, MD of Adarsh Group

“Filing of the charge-sheet within stipulated period is sufficient compliance u/s 167 of CrPC.”

Read more…

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Amazon-Future-Reliance Dispute| SC allows Future Group to approach Delhi HC for continuation of merger deal with Reliance Group

The 3-judge bench of NV Ramana, CJ and AS Bopanna and Hima Kohli, JJ has granted liberty to Future Retail Limited (FRL) to approach the Delhi High Court by filing an application seeking continuation of the NCLT proceedings beyond the 8th Stage i.e. Meeting of Shareholders and creditors.

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Section 498A IPC| Husband’s relatives cannot be forced to undergo trial in absence of specific allegations of dowry demand

“A criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused.”

Read more…

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Supreme Court furthers SOP for evidence recording via video-conferencing in cases related to child victims/witnesses of human trafficking

“It is well known that our country is a technological powerhouse and if we are unable to take advantage of the resources available with us and fully utilise the benefits of technology through computers and the internet for the benefit of children, our status as a technological powerhouse would be in jeopardy and would remain only on paper.”

Read more…

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POCSO Offenders Deserve No Leniency; “A Message Must Be Conveyed To The Society At Large”

“Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex where even innocent children are not spared in pursuit of such debased sexual pleasure.”

Read more…

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Bullet Train Project: Even Republic of India can’t deviate from terms and conditions of a fully foreign funded contract; SC sets aside Delhi High Court verdict

Japan International Cooperation Agency (JICA) has invested Rs.1 lakh crores in the Bullet Train Project.

Read more…


EXPLAINERS



MORE STORIES


Not mandatory to register partition document only detailing how the properties are to be dealt with in future

The Court was deciding a case where the panchayatdars had passed an award in the form of a resolution in relation to a family property.

Read more…

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Lok Adalat Award cannot be a basis for redetermination of the compensation under Section 28A of the LA Act

An Award passed under Section 19 of the 1987 Act is a product of compromise. Sans compromise, the Lok Adalat loses jurisdiction.

Read more…

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Applications under Section 156 (3) Cr.P.C. being filed only to harass other; Filing of affidavit a must

In a case where the Magistrate had passed an order under Section 156(3) CrPC even in absence of an affidavit duly sworn by the complainant, the bench of BR Gavai* and Krishna Murari, JJ that many a times the applications under Section 156 (3) of the Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons and hence, such applications are to be supported by affidavits.

Read more…

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Minor penalties, without cumulative effect, are still a proof of tainted service record; Benefit of Selection Grade can’t be claimed as a right

In a case where a former employee of Rajasthan State Road Transport Corporation sought benefit of Selection Grade, 7 years after his compulsory retirement, the bench of Dr. DY Chandrachud and Surya Kant, JJ has held that the grant of the Selection Grade is not a matter of right and is subject to the stipulated terms and conditions which, in the present case, included a clean and untainted service record.

Read more…

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Merely writing “cancelled” on registered power of attorney wouldn’t make it null and void

The Division Bench of K.M. Joseph* and Pamidighantam Sri Narasimha, JJ., held that mere writing the word “cancelled” or drawing a line would not render Power of Attorney null and void as there must be cancellation and it must further be brought to the notice of the third party at any rate.

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Law passed by legislature is good law till it is declared unconstitutional by a Court

The Supreme Court held that, the Manipur Legislature was not competent to introduce a saving clause in the Repealing Act 2018.

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Consent decree cannot be modified/ altered unless the mistake is a patent or obvious one

“Even assuming there is a mistake, a consent decree cannot be modified/ altered unless the mistake is a patent or obvious mistake. Or else, there is a danger of every consent decree being sought to be altered on the ground of mistake/ misunderstanding by a party to the consent decree.”

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IBC Amendment, 2018; Supreme Court elaborates conditions for disqualification of Resolution Professional under S. 29A(h) of IBC

“…what is required to earn a disqualification under the said provision is a mere existence of a personal guarantee that stands invoked by a single creditor, notwithstanding the application being filed by any other creditor seeking initiation of insolvency resolution process subject to further compliance of invocation of the said personal guarantee by any other creditor.”

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Compassionate Appointment cannot be denied to children born from the second wife of a deceased employee

“A policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate and recognizing only the right of legitimate descendant.”

Read more…

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No Corporation/Planning Authority can be compelled to acquire an unusable or unsuitable land and be compelled to pay compensation to landowners

“Once by operation of law, the reservation is deemed to have lapsed, it is lapsed for all purposes and for all times to come.”

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Default/Delay in payment of EPF by employer: Mens rea or actus reus not an essential element for imposing civil penalty/damages

The bench of Ajay Rastogi and Abhay S. Oka, JJ has held that any default or delay in the payment of EPF contribution by the employer under the Employees Provident Fund & Miscellaneous Provisions Act, 1952 is a sine qua non for imposition of levy of damages under Section 14B and mens rea or actus reus is not an essential element for imposing penalty/damages for breach of civil obligations/liabilities.

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Advocate an officer of the Court; May be appointed by CMM/DM to assist in execution of order passed under Section 14(1) of SARFAESI Act

The Court was called upon to decide whether the past practice followed by most of the courts across the country in recognising the power of the CMM/DM to appoint an advocate as a commissioner to assist him in merely taking possession of the secured assets and documents relating thereto and to forward the same to the secured creditor, needs to be discontinued as being prohibited owing to insertion of sub-Section (1A) of Section 14 of SARFAESI Act?

Read more…

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Benefit conferred on one or a set of people, without legal basis or justification, cannot multiply and be relied upon as a principle of parity

“A principle, axiomatic in this country’s constitutional lore is that there is no negative equality.”

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Is independent suit questioning a compromise decree maintainable or one has to approach the same Court which recorded the compromise to challenge it? SC answers

“If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.”

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Bank Employees misappropriate funds. Confession by one leads to mild penalty; No evidence against another leads to dismissal! SC directs reinstatement

“A reading of the disciplinary authority’s order reveals that his past record of minor misconduct played a major role in determining his guilt, despite lack of evidence, and the extreme penalty of dismissal.”

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Section 138 NI Act| Prima-facie indication as to complaint by a company through an authorised employee having knowledge of the case enough for Magistrate to take cognizance

The 3-judge bench of NV Ramana, CJ and AS Bopanna* and Hima Kohli, JJ has held that when the complainant/payee for a complaint filed under Section 138 of NI Act is a company, an authorized employee can represent the company. Such averment need not be in any particular manner and prima facie material is sufficient for the Magistrate to take cognizance and issue process.

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SC discusses law on compensation for injurious affection; Summarises items under S. 23(1) of LA Act to be considered by court while determining compensation

“Railway line is not like a roadway. Roads can take diversion easily, but not railway lines.”

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Can sale pursuant to a public auction, be set aside at the instance of strangers to the auction proceeding? SC decides

if there was any error in the decision-making process adopted by the authority, the remedy available was to question the sale deed in an appropriate proceeding available under the law and not by filing a petition under Article 226 of the Constitution of India”.

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Financier-in-possession of a motor/transport vehicle liable to pay tax under U.P. Motor Vehicles Taxation Act, 1997

While dealing with the scope of Section 12 of the U.P. Motor Vehicles Taxation Act, 1997, bench of MR Shah* and BV Nagarathna, JJ has held that a financier of a motor vehicle/transport vehicle in respect of which a hire-purchase, lease or hypothecation agreement has been entered, is liable to tax from the date of taking possession of the said vehicle under the said agreements.

Read more…

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Chased and killed in the mid night much after the altercation, even after the deceased reached his house. Cold blooded murder or  culpable homicide not amounting to murder? SC decides

In a case relating to murder versus culpable homicide legal controversy, the Division Bench of M.R. Shah* and B.V. Nagarathna, JJ., held that the Uttaranchal High Court had erred in observing that the case would fall under Fourth exception to Section 300 IPC and had failed to properly appreciate the multiple injuries sustained by the deceased.

Read more…

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Bank entitled to withhold payment where Bond holder’s title is clouded as fraudulent

“Shylock has received their promised pound of flesh but they seem to want more”

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Is unstamped Arbitration Agreement enforceable?

Supreme Court holds question being pending before larger Bench will not hinder arbitration proceedings unless issue indicates existence of deadwood.

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Economic Offence| 25 crores siphoned off by forging documents and misusing KYCs of employees; SC cancels Delhi HC’s order granting bail to the suspect

Mere non-misuse of liberty cannot be a ground to confirm the bail order otherwise not sustainable in law.

Read more…

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5-year moratorium on new Pharmacy Colleges: Chh HC’s interim order directing PCI to consider application for affiliation stayed; Matter to be disposed of in 4 weeks

Supreme Court imposed a stay on the Chattisgarh High Court’s interim order directing the PCI to permit the respondents to submit their application required for the necessary permission and approval and also for grant of necessary affiliation for the academic session 2022-23.

Read more…

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Post Poll Violence| Anticipatory Bail to Mamta’s Banerjee’s Election Agent SK Supiyan in murder case; Must fully cooperate in the probe

The Court made clear that the pre-arrest bail is liable to be cancelled if it is found that the appellant is not cooperating for the investigation.

Read more…

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By purchasing power at higher rate, Andhra Pradesh DISCOMS have acted contrary to public interest

“Every action of a State is required to be guided by the touch¬stone of non-arbitrariness, reasonableness and rationality. Every action of a State is equally required to be guided by public interest. Every holder of a public office is a trustee, whose highest duty is to the people of the country.”

Read more…

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Whether lotteries being res extra commercium takes away CCI’s Jurisdiction to entertain anti-competition activities relating to lotteries? SC decides

“A simple aspect of anti-competitive practices and cartelisation had got dragged on for almost ten years in what appears to be a mis-application by the High Court of the interplay of the two Acts, i.e., the Competition Act and the Regulation Act.”

Read more…

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“Debt arising out of advance payment for supply of goods or services is an operational debt”; SC allows operational creditor to initiate CIRP

“…no doubt that a debt which arises out of advance payment made to a corporate debtor for supply of goods or services would be considered as an operational debt.”

Read more…

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SC sets aside HC order for applying test of criminal proceedings to departmental proceedings

“No case for interference either on law or on moral grounds”

Read more…


IN OTHER NEWS


Supreme Court invites applications seeking conferment of designation of Senior Advocates


SUPREME COURT CASES 

[An overview of the cases reported in the latest volumes of SCC]


2021 SCC Vol. 9 Part 3

In Part 3 of Volume 9, read this very interesting decision, where the Election Commission of India (EC) had sought a direction.

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2021 SCC Vol. 10 Part 1

In Part 1 Volume 10 of 2021, read Supreme Court’s decision in Supertech Ltd. v. Emerald Court Owner Resident Welfare Assn.(2021) 10 SCC 1, wherein the Court made an observation that “illegal constructions have to be dealt with strictly to ensure compliance with the rule of law.”

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2021 SCC Vol. 10 Part 2

In this part, read three really interesting Articles along with some very carefully analysed decisions of the Supreme Court by our editors.

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2021 SCC Vol. 10 Part 3

This part has a very interesting decision from the Supreme Court, wherein the Court issued “general uniform direction” of deduction of 15 per cent of the annual school fees for the academic year 2020-2021 in lieu of unutilised facilities/activities and not on the basis of actual data school-wise.[Indian School v. State of Rajasthan, (2021) 10 SCC 517].

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2021 SCC Vol. 10 Part 4

Evidence Law, Arbitration Law, Service Law and many more interesting decisions covered in this part covering some very pertinent laws.

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2022 SCC Vol. 1 Part 1

In 2022 SCC Volume 1 Part 1, read a very significant decision of Supreme Court wherein it made a very pertinent observation with regard to arbitral awards,

“There is a disturbing tendency of courts setting aside arbitral awards, after dissecting and reassessing factual aspects of the cases to come to a conclusion that the award needs intervention …”

[Delhi Airport Metro Express (P) Ltd. v. DMRC, 2021 SCC OnLine SC 695]


 

Case BriefsSupreme Court

Supreme Court: While addressing the issue of obviating difficulties to victims of trafficking with respect to travelling long distances for the purpose of giving evidence in trial courts, the Division Bench of L. Nageswara Rao and B.R. Gavai, JJ., furthers recording of evidence of child victims/witnesses of human trafficking via video-conferencing. Opining that the video-conference procedure need not be restricted only to the period affected by COVID-19 pandemic, the Bench remarked,

“Though, the public-spirited Petitioners were concerned with the safety of the trafficked children being forced to travel long distances for giving evidence during the COVID-19 pandemic, we are of the opinion that the suggestions made by the learned Amicus Curiae, in consultation with Ms. Shenoy, relating to the SOP should be put in practice as a regular feature.”

A petition was filed before the Court seeking issue of mandamus directing that during COVID-19 pandemic, the recording of evidence of child victims/witnesses of human trafficking across Districts/States/Countries be ordinarily undertaken via video-conferencing from a government facility within the local jurisdiction of the residence of such children. Considering the gravity of the matter a suo motu case was registered by the Court and Mr. Gaurav Agarwal had been appointed as Amicus Curiae to assist the Court.

The Pilot Project

The Amicus Curiae had proposed a pilot project, wherein four cases were selected out of which trial had commenced in two cases and direction was given for examination of witnesses by video conferencing. In State v. Rahmatulla, SC No. 151 of 2019, 11 children engaged in stitching work of suit/coat covers were rescued by a surprise rescue operation from premises in North East Delhi, PS Khajuri Khas. The rescued children were sent to their native places, i.e., East Champaran Districts of Bihar. The case was pending in the court of Additional District Judge, Karkadooma, New Delhi. In second case, State v. Mohd. Sherjahan, Case No. 52 of 2019, the Anti-Human Trafficking Unit had rescued four children, who were forced to make bangles in a confined room at Jaipur. The rescued children were sent to their homes at Patna and Gaya in Bihar. The trial in the said case was due to be conducted in POCSO Court-2, Jaipur. The pilot project consisted three stages:

  1. Assessment of state of infrastructure at the Court Point and the Remote Point. The Court Point is in the cities or places where the trial has to take place and the Remote Point is the district/Taluk court complex or the office of the District Legal Services Authority near the place of residence of the victims/witnesses. Availability of necessary equipment for video conferencing, along with other facilities integral to the process, was to be ascertained in the first stage.
  2. The Judge at the Court Point was to fix a date for examination of the witnesses and thereafter, issuing summons to the witnesses. The witnesses be intimated about (i) the address of the Remote Point and date and time of hearing; (ii) name, contact details and a brief explanation of the role of the Remote Point Coordinator (RPC); and (iii) the requirement to carry a proof of identification.
  3. Actual examination of the child witnesses at the Remote Point and the procedures to be followed to ensure that the witnesses are examined in camera and without any influence.

Standard Operating Procedure

After being satisfied with the trial run of examination of child witnesses at remote points, the Amicus Curiae submitted a draft Standard Operating Procedure (SOP) in consultation with Senior Advocate Anitha Shenoy, with five stages which was served on all the State Governments/Union Territories as well as the High Courts for their comments by the order of the Court. On suggestions made by the High Courts, the SOP was modified and the modified SOP reads as:

  1. Testimony of children be recorded through video conferencing either at the video conferencing room of the court complex in the district or the office of DLSA where the child is residing.
  2. District Judges to ascertain the availability of video conferencing facility in the district/Taluk court complex or DLSA office and communicate the same to the jurisdictional High Court. The High Courts were asked to place the said information on its website on or before 30-04-2022 and ensure availability of video-conferencing infrastructure in every district, especially where the incidence of child trafficking cases is high.
  3. DLSA to be the Remote Point Coordinator (RPC) for recording of the testimony of child witnesses or appoint a Retired judicial Officer as a RPC, information of which, i.e. the names and contact details of the RPC of each district on the website.
  4. In cases of inter-state/inter-district child trafficking the Trial Court should ordinarily give preference to examination of the child witness through video conferencing.
  5. The authorized officer at the Court Point to get in touch with the RPC at the Remote Point and work out all modalities for recording of the child witness statement through video conferencing.
  6. The child witness be entitled to the presence of a support person under Protection of Children from Sexual Offences Rules, 2020, a diet money on the basis of the distance travelled to reach the remote point and any other best practice required by the law.
  7. Copy of documents required to be marked or shown to the witness may be transmitted by the Court electronically to the RPC.
  8. Questions posed by the Public Prosecutor/Defense Counsel may be put to the Trial Judge, who in turn will put them to the witness and the Trial Court would record the testimony of the witness.
  9. On completion of recording of evidence, the deposition will be sent by the Trial Court on email to the RPC who shall read the same out to the witness. After ascertaining the deposition is correct and verified as under law including the affixation of the child’s thumb impression/signature, the RPC may certify the same and send the deposition back, in a secure manner, to the Trial Court by Speed Post and by electronic means as permitted by law. An original may also be kept by RPC in case the Speed Post is misplaced for some reason.
  10. Whenever a Trial Court proposes to record the testimony of a child witness, who is residing in another State, an intimation of the same should also be given to the Registrar of the High Court of the Court point, who shall intimate the High Court of the Remote Point with a request to render all assistance possible for recording of the testimony of the child.
  11. The SOP is only a broad guideline. The method and manner of recording of testimony be dependent upon the video conferencing rules framed by the respective High Courts and the recording of the testimony should be done expeditiously.

Conclusion and Directions

According to data released by agencies the problem of Child Labour in India is persisting inspite of the best efforts of the Government. Reiterating the importance of protection of children and rescuing and rehabilitating them, the Bench opined that the said SOP need not be restricted only to the period affected by the COVID-19 pandemic.

Observing that the permissibility of recording evidence through video conferencing had been considered by the Supreme Court in State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601, Sakshi v. Union of India, (2004) 5 SCC 518, as well as Eera v. State (NCT of Delhi), (2017) 15 SCC 133, and Sampurna Behura v. Union of India, (2018) 4 SCC 433, wherein the Court had encouraged the use of technologies in court proceedings, the Bench stated,

“We have carefully examined the draft SOP which contains minute details about steps to be taken for recording the testimony of child witnesses at Remote Points. Responses have been filed by the High Courts. There is no objection taken by any High Court to the SOP being put in practice immediately.”

Accordingly, the Bench directed that the SOP be followed in all criminal trials where child witnesses, not residing near Court Points, are examined and not physically in the courts where the trial is conducted. The RPCs were directed to ensure that child-friendly practices are adopted during the examination of the witnesses and the concerned judicial officer at the Remote Point and the trial Court were to that the recording of evidence shall be in camera wherever necessary.

Noting that NALSA had also come forward to place the details regarding the availability of video conferencing facility for recording of statement of child witnesses in the offices of DLSA and court complex and the name and contact number of the RPC on its website and the website of State Legal Services Authority (SLSA) by 30-04-2022, the Bench expressed,

“We appreciate the stand taken by NALSA to strengthen the video conferencing facilities in DLSA offices in the States of Uttar Pradesh, Bihar, West Bengal, Odisha and Assam, to begin with to ensure that in case video conferencing facility in the court complex is not available, video conferencing facility in DLSA office can be utilized for recording of the evidence of the child witness.”

[Children in Street Situations, In Re, 2022 SCC OnLine SC 189, decided on 01-02-2022]


Kamini Sharma, Editorial Assistant has put this report together 


 

Case BriefsCOVID 19District Court

District Court: The Court of Devanshu Sajlan, MM, NI Act-05/(West)/Delhi, allowed a mutual application moved on behalf of the parties for the recording of evidence through video conferencing.

Noting the fact that the matter is a ‘5-year-old’ matter, both the counsels mutually submitted that they wish to proceed with the matter and conduct evidence through VC.

Trial Court stated that both the parties were mutually willing in recording the evidence through VC, hence mutual oral application moved on behalf of the parties was allowed and the matter was directed to be listed for the recording of evidence through VC in terms of the following directions:

(i) An audio-visual recording of the examination of the complainant shall be preserved. An encrypted master copy with hash value shall be retained as a part of the record.

(ii) The evidence shall be transcribed through the mode of ‘screen sharing option’ on Cisco Webex, so that both the parties and their counsels can follow/ read the transcription in real time.

(iii) Upon the conclusion of the transcription of the cross-examination of the complainant, the complainant shall be provided with a soft copy of the transcript (bearing the digital signature of the undersigned court) through the official email- id of the court, and the complainant shall be required to affix his signature on the transcript after taking a print-out of the same.

(iv) After affixing his signature on the printed copy of the transcript, the complainant shall be required to send a scanned copy of the same on the official email-id of the court. The signed transcript will form part of the record of the judicial proceedings.

(v) Due to the present situation of COVID-19 pandemic, both parties are in agreement that it is not advisable to depute a ‘coordinator’ at the place from where the complainant shall appear for the recording of his evidence.

(vi) However, in order to prevent unnecessary tutoring or prompting, learned counsel for the complainant has submitted that he shall ensure that the complainant appears for the recording of his evidence through VC from his home; and not from the office premises/ chamber of the learned counsel for the complainant.

(vii) The complainant shall not use mobile phone/ any communication device while his evidence is being recorded.

(viii) Further, the complainant shall ensure that he has a proper internet connection so that there are no disruptions while recording his evidence.

(ix) While all endeavours shall be made to record evidence through VC, the court is cognizant of the fact that internet connectivity issues can be taken as an excuse for not answering questions put by the learned counsel to the witness and to indulge in witness prompting. Accordingly, in a scenario where the VC is disrupted during the recording of evidence, recording of evidence through VC may be discontinued and the matter would be adjourned if it appears that the witness/ complainant is deliberately disconnecting his internet connection.

[Kanwal Nain Singh Mokha v. Rekha Khurana, CC No. 1924 of 2016, decided on 26-06-2021]


Read the Summary of Videoconferencing Rules notified on 1-06-2020 by the Delhi High Court

The Rules are divided into 5 Chapters with 2 Schedules.

First Chapter contains the definitions.

In Chapter 2, the General Principles have been laid down which are under the following heads mainly:

  • General Principles Governing Video Conferencing
  • Facilities recommended for Video Conferencing
  • Preparatory Arrangements

Chapter 3, consists of the Procedure for Video Conferencing, which is laid down under the following heads:

  • Application for Appearance, Evidence and Submission by Video Conferencing
  • Service of Summons
  • Examinations of Persons
  • Exhibiting or Showing Documents to witness or accused at a remote point.
  • Ensuring Seamless Video Conferencing
  • Judicial remand, the framing of charge, the examination of accused and Proceedings under Section 164 CrPC

Chapter 4 is all about the General Procedure for conducting Video Conferencing. Following heads cover the said procedure:

  • Costs of Video Conferencing
  • Conduct of Proceedings
  • Access to legal Aid Clinics/Camps/Lok Adalat’s/Jail Adalat’s
  • Allowing persons who are not parties to the case to view the proceedings

Chapter 5 is the Miscellaneous Chapter with the following heads:

  • Reference to Words and Expressions
  • Power to Relax
  • Residual Provisions

Schedule I has pointers regarding the attire of the Advocates, Police Officials, Presiding Judge, Judicial Officers and Court Staff; Protocol, Remote point, etc.

Schedule II is with respect to the “Request Form for Video Conferencing”.

Read the detailed Rules here: NotificationFile_ULDC4UVQWZ9

Case BriefsHigh Courts

Delhi High Court: J.R. Midha, J., dismisses the suit filed regarding the rollout of 5G technology on observing that the suit was filed with the motive of gaining publicity and also the Court reasoned out various defects in the plaint.

I.A. No. 6905/2021 under Section 149 of CPC

Plaintiffs submitted that if the justice dispensation system requires 15-20 years for settlement of a suit, Court has lost the moral as well as legal right to require the Court fees to be paid upfront at the beginning of the suit.

Plaintiffs sought time to pay the Court fees under Section 149 read with Section 148 CPC because of COVID-19 constraints.

Court while allowing the above application and granting deferment for whatever period of time this Court deemed it fit that the quantum of Court fees as yet to be decided by this Court, thereby allowing fair opportunity to plaintiffs.

Findings

Plaintiffs valued the suit for purpose of jurisdiction at Rs 2 crore.

Law is well-settled that the valuation of the suit for the purpose of jurisdiction and Court fees has to be same.  

Section 149 of Code of Civil Procedure empowers this Court to extend the time to pay the deficient Court-fees. However, the challenge sought by the plaintiffs into the validity of the Court fees Act is not permissible under Section 149 CPC. Therefore, no case for determination of the Court fees was made out.

Bench held that the application was misconceived, frivolous and unsustainable. The law with respect to valuation and computation of Court-fees is well settled. However, the plaintiffs have taken a stand not to pay the Court-fees in utter disregard of well-settled law.

I.A. No. 6909/2021 under Section 80(2) of CPC

Plaintiffs sought dispensation from issuing notice to the State entities under Section 80(1) of CPC on the ground that same was an empty formality.

Plaintiff submitted that since the 5G roll out has not actually happened, though – equally damaging – trials involving the human population have started (which is not the same as doing trials on pigs and/ or rats, and/or in an empty Thar Desert, or on the employees of the private defendants) – so that not even one single human life is lost by these trials, the plaintiffs are agreeable if this Court, while waiving the requirement of Section 80(1) of the CPC, grants a fair opportunity to the State Defendants to show cause as to why no interim relief be granted.

Findings

It was stated that serving notice under Section 80(1) CPC to the Government is mandatory before institution of the suit against the Government.

In the Supreme Court decision of State of Andhra Pradesh v. Gundugola Venkata Suryanarayana Garu, AIR 1965 SC 11, wherein it was observed that the object of the notice under Section 80(1) CPC is to give an opportunity to the Government to reconsider the matter and to make amends and settle the claim out of Court. The Supreme Court further observed that failure to serve a notice complying with the requirements of the statute will entail dismissal of the suit

In the State of A.P. v. Pioneer Builders, A.P., (2006) 12 SCC 119, the Supreme Court held that service of notice under Section 80 is a condition precedent for the institution of a suit against the Government. The Supreme Court further observed that the object of Section 80 is the advancement of justice for securing public good by avoidance of unnecessary litigation.

Another, Supreme Court decision in State of Kerala v. Sudhir Kumar Sharma, (2013) 10 SCC 178, the Supreme Court observed that a suit filed without compliance of Section 80(1) of the Code of Civil Procedure cannot be regularized by simply filing an application under Section 80(2) of the Code of Civil Procedure

In view of the above discussion, it was held that notice under Section 80(1) is an empty formality that is contrary to the well-settled law and hence rejected.

I.A. No. 7001/2021 under Section 91(1)(b) of CPC

Plaintiff sought leave to institute the suit stating that the matter concerned public health and EMF radiation caused by cellular telecommunication technology must have caused harm to many members of general public.

I.A. No. 7002/2021 under Order VIII Rule 1 of CPC

Further, the plaintiff sought leave to sue on the ground that colossal harm is eminent to general public by the rollout of 5G Technology and the suit involved issues regarding the public health of the present as well as future generations.

Findings

Court found the plaintiff’s suit defective and not maintainable for the following reasons:

  • Order VI Rule 2(1) of the Code of Civil Procedure: Plaintiffs did not comply the said provision by not filing the statement in concise form and also by incorporating the evidence in the plaint.
  • Plaintiffs did not comply with Order VI Rule 9 of the Code of Civil Procedure and reproduced the documents in the plaint which was not supposed to be done.
  • Plaint stuffed with unnecessary scandalous frivolous and vexatious averments that are liable to be struck down under Order VI Rule 16 of the Code of Civil Procedure.
  • No compliance of Order I Rule 3 of CPC in joining 33 defendants in the suit.
  • Plaint not verified under Order VI Rule 5 of the CPC.
  • Plaintiffs have no personal knowledge of the averments made in the plaint and the suit is solely based upon information and legal advice.
  • Plaintiffs never approached the defendants claiming any right, hence maintainability of declaratory reliefs was doubtful.
  • The twin requirements of Section 39 of Specific Relief Act are the existence of an obligation of the defendant towards the plaintiff and the breach thereof by the defendant. Both these requirements are not fulfilled.
  • Suit has not been valued properly for the purpose of Court fees.
  • No mandatory notice given under Section 80(1) of CPC.

Bench also remarked that the observation of Justice Rajiv Sahai Endlaw in one of the cases that: This is a classic textbook case of, how not to draft a plaint, which should be taught in law colleges and to young lawyers so that such bloopers in drafting of pleadings, damaging to one’s own client, are avoided.’ is fully applicable in the present matter

Conclusion

High Court concluded stating that the plaintiffs abused and misused the process of law which resulted in a waste of judicial time. Hence, Rs 20 lakhs as costs were imposed on the plaintiffs.

Plaintiffs filed the suit only to gain publicity which was evident from the fact that plaintiff 1 circulated the video conferencing link of the Court on her social media accounts which resulted in disruption of Court proceedings.

“Court proceedings were disrupted thrice by the unknown miscreants who continued the disruptions despite repeated warnings.”

Court issued notice to such miscreants and listed matter for reporting compliance on 05-07-2021.[Juhi Chawla v. Science and Engineering Research Board,  2021 SCC OnLine Del 3030, decided on 04-06-2021]


Advocates before the Court:

For the plaintiffs:

Deepak Khosla, Advocate along with Juhi Chawla Mehta, plaintiff 1 and Veeresh Malik, plaintiff 2.

For the Defendants:

Tushar Mehta, SGI with Amit Mahajan CGSC, Kanu Aggarwal and Dhruv Pande, Advocates for D-2/DoT/UOI

Anurag Ahluwalia, CGSC with Abhigayn Siddhant and Nitnem Singh Ghuman, Advocates for D-7/Indian Council of Medical Research

Arjun Mitra, Advocate for D-23/Indraprastha Institute of Information Technology Delhi

Kapil Sibal, Senior Advocate with Manjul Bajpai and Shashwat Bajpai, Advocates for D-25, D-26, D-27 and D-29/Cellular Operators Association of India.

Hot Off The PressNews

On May 11, 2021, Madhya Pradesh High Court has partially modified it’s May 6th Order wherein it had issued directions as to hearing of matters during summer vacation. These directions are in addition to the directions issued on May 6.

All 3 benched of the High Court will be closed from May 10, 2021 to June 4, 2021. The Vacation Benches will, however, continue to hear urgent matters during this period.

Directions issued on May 11, 2021:

  1. During the vacation period Writ Petitions, Civil & Criminal matters will also be listed and heard through Video Conferencing on application for early listing for urgent relief.
  2. Considering the demand of the Bar, it has been decided to also hold the sitting of the Court on the Friday of remaining weeks of the summer vacation.
  3. Special Benches for hearing such Division Bench Criminal Appeals of the convicts, who are in Jail for more than 10 years, shall be convened at Principal Seat Jabalpur and Benches at Indore & Gwalior in which learned Counsels for the appellants give their consent out of the cases notified in advance hearing list.

Directions issued on May 6, 2021:

  1. During the vacation period, urgent Matters will be heard through Video Conferencing.
  2. Only Bail Applications, applications for Suspension of Sentence, Habeas Corpus matters and matters relating to Medical Termination of Pregnancy Act, will be listed in the daily Cause List. Cases of other nature will not be listed during the vacation period.
  3. As per the provision of sub Rule (3) of Rule (5) of Chapter VII of High Court of Madhya Pradesh Rules, 2008, no repeat applications for bail or Suspension of Sentence shall be filed or received during vacation. Such application, if filed before vacation, may however, be posted before the bench or the Judge to which it is tied-up, if that bench or Judge is sitting during vacation.
  4. In case of exceptional urgency in the cases of other nature, Advocates Litigants may file Mention Memo via chat-box of ‘Jitsi Video Conferencing Platform’ or in physical form in the Drop Box.
  5. Counsels may submit the request for E-mentioning in the prescribed format (provided in the “e-mention” tab available on the website of M.P. High Court.
  6. Only such Mention requests, made between 10:30 Am to 11:30 AM (only on Monday & Thursday), shall be entertained, in which specific reasons of extreme and genuine urgency, in brief, are given.
  7. In addition to e-Mentioning via ‘Jisti Video Conferencing Platform’ Advocates / Litigants may submit Mention Memo in physical form in the Drop Box installed for the same purpose at Principal Seat Jabalpur and at Benches at Indore & Gwalior. Advocates / Litigants are requested to submit such Memos from 10:30 AM to 11:00 AM (only on Monday & Thursday) only in the cases having extreme and genuine urgency, in absence of which, no request shall be entertained.
  8. Advocates / Litigants are requested to submit accurate, specific & correct particulars in the chat-box / physical Mention Memo while submitting the same.
  9. The matter which are required to be heard by a Division Bench, shall be placed before a Division Bench comprising the senior sitting Judge and other available member, on a particular day.
  10. If only Single Bench is available on a particular day and matter is required to be heard urgently during vacation by Division Bench, then matter may be listed before available Single Bench subject to the provisions mentioned in Chapter 7 Rule 9 (1&2) of M.P. High Court Rules, 2008.
COVID 19Hot Off The PressNews

For effective containment of the rapid spread of Covid-19, the State Government has issued an order dated 18.04.2021 and prohibited various activities from 19.04.2021 to 03.05.2021 including closure of work places, commercial establishments and markets.

In view of the above-stated order and considering the extreme grave situation, in supersession of all previous directions, the following directions are issued for the functioning of Rajasthan High Court at Jodhpur and Jaipur Bench from 19-04-2021 to 03-05-2021:

1. Rajasthan High Court Jodhpur and Jaipur Bench shall function only through video conferencing for urgent matters instituted in the year 2021 with the exception that any other matter may be taken up with the permission of Court.

2. Such a number of Division and Single Benches at Jodhpur and Jaipur Bench shall be constituted as directed by the Chief Justice for hearing of the urgent matters.

3. Morning court timings as per this office Notification No. 02/E.Y./2021 dated 01.03.2021 shall be observed for hearing of cases.

4. Filing of fresh urgent matters shall be made through E-filing on E-filing portal as per Notification dated 08.04.2020 available on the website of Rajasthan High court with the condition to submit the hard-copy file within 7 days of resuming regular functioning.

5. Filing may also be made through following dedicated email addresses and on WhatsApp numbers with the condition to submit hard-copy file within 7 days of resuming regular functioning.

6. Filing through email or WhatsApp shall be entertained only when scanned PDF copy of the application/petition/appeal is submitted. Leamed Advocates must ensure that filing is made only through one mode.

To read further directions, please click on the link below:

NOTIFICATION


Rajasthan High Court

[Notification dt. 19-04-2021]

COVID 19Hot Off The PressNews

Virtual Hearing

Jammu and Kashmir High Court extend its Order dated 5-04-2021 with regard to the virtual mode of hearing due to the sudden surge of COVID-19 Cases in the Country in general and UTs of Jammu and Kashmir and Ladakh in particular.

Link to the NOTIFICATION.


Jammu and Kashmir High Court

[Notification dt. 16-04-2021]

COVID 19Hot Off The PressNews

Due to the alarming upsurge in the Covid-19 cases in the NCT of Delhi, all Benches of Delhi High Court shall, with effect from 19-04-2021, take up extremely urgent matters filed in the year 2021 only.

It has been further ordered that the other pending routine/non-urgent matters and the matters filed/listed before this Court between 22-3-2020 and 31-12-2020 shall not be taken up by this Court and such matters shall be adjourned “en bloc” as per the dates already notified. In case of any extreme urgency, the request in the pending matters may be made on the already notified designated link.

Link for the NOTIFICATION


In view of the alarming rise in the Covid-19 cases in the National Capital Territory of Delhi, all the Courts of Registrar and Joint Registrar (Judicial) shall take up only urgent cases through videoconferencing mode and all other matters be adjourned en bloc and information in this regard be uploaded on the website of this Court.

Link to the NOTIFICATION


All the Judicial Officers of the District Courts in Delhi shall take up only urgent cases of their respective Courts, through videoconferencing mode. It is further ordered that all other matters listed before Delhi District Courts be adjourned en bloc by respective courts and information in this regard be uploaded on the website(s) of Delhi District Courts.

Link to the NOTIFICATION



Delhi High Court

[Notifications dt. 19-04-2021]

Case BriefsSupreme Court

Supreme Court: As the country heads towards returning to normalcy, the 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and S. Ravindra Bhat, JJ jas issued fresh guidelines in relation to the period of limitation for filing petitions/applications/suits/appeals/all other proceedings.

“Though, we have not seen the end of the pandemic, there is considerable improvement. The lockdown has been lifted and the country is returning to normalcy. Almost all the Courts and Tribunals are functioning either physically or by virtual mode.”

Due to the onset of COVID-19 pandemic, by an order dated 27.03.2020*, the Supreme Court had extended the period of limitation prescribed under the general law or special laws whether compoundable or not with effect from 15.03.2020 till further orders. The order dated 15.03.2020* was extended from time to time. The said decision was taken after taking note of the difficulties that might be faced by the litigants across the country in filing petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central or State).

Here are the fresh directions:

  1. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021.
  2. In cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.03.2021. In the event the actual balance period of limitation remaining, with effect from 15.03.2021, is greater than 90 days, that longer period shall apply.
  3. The period from 15.03.2020 till 14.03.2021 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.
  4. The Government of India shall amend the guidelines for containment zones, to state. “Regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions, such as, time bound applications, including for legal purposes, and educational and job-related requirements.”

[IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION, 2021 SCC OnLine SC 193, order dated 08.03.2021]


*Ed. Note: The order erroneously mentions the order dated 23.03.2020 as the order dated 27.03.2020 and the order dated 15.03.2020. Read the following report on the order dated 23.03.2020 extending the limitation period for filing petitions/applications/suits/appeals/etc. 

Coronavirus (COVID-19)| SC extends limitation period for filing petitions/applications/suits/appeals, etc.

Case BriefsSupreme Court Roundups

2020 has been a year of COVID-19, challenges, and changes. Of many things that this year has taught us, one of the biggest lessons has been our ability to work from home alone – but together! Like most of us, the Courts too took the cue and started functioning via video conferencing when the pandemic hit the World. At first, the Supreme Court restricted it’s functioning to avoid mass gatherings in Courts and directed that only urgent matters will be heard, however, soon all the in-person hearings were completely banned and the Court directed that it would hear “extremely urgent” matters via video conferencing.

Ultimately, faced with the unprecedented and extraordinary outbreak of a pandemic, Supreme Court issued guidelines on functioning of courts through video conferencing. It said that it was necessary that Courts at all levels respond to the call of social distancing and ensure that court premises do not contribute to the spread of virus.

Also read:

When the video conference hearings first began, the Courts and the public at large were skeptical about it’s success, however, the Supreme Court, in October, said that the “the system of Video Conferencing has been extremely successful in providing access to justice.” 

Read: SC says “system of Video Conferencing has been extremely successful”; alters only one guideline from April 6 order

Here are a few unmissable facts and stories from the highest Court of the country:

  • Even though most of the Court functioning took place online and through video conferencing, 696 judgments were delivered in the year 2020 .
  • All the Constitution bench verdicts were unanimous with no dissenting opinion. [Read more]
  • In a first, Single-Judge bench started hearing cases. [Read more]
  • A new dress code was notified for advocates in light of the COVID-19 pandemic. [Read more]
  • 228 advocates registered as Advocates-on-Record of the Supreme Court. [Read more]
  • 2 judges, Justice R. Banumathi and Justice Arun Mishra retired

Read:

Read: “Justice Ramana’s proximity with Mr. Chandrababu Naidu is too well-known”; Read what Andhra Pradesh CM Jagan Mohan Reddy wrote in his letter to CJI

Here’s a quick roundup of all the important Supreme Court judgments:

11 Constitution bench judgments 

  • All the Constitution bench verdicts were unanimous with no dissenting opinion.
  • 9 out of 11 Constitution bench judgments were delivered by benches consisting of Justices Arun Mishra, Indira Banerjee, Vineet Saran and M.R. Shah, followed by Justices Aniruddha Bose and S. Ravindra Bhat who were part of Constitution benches in 5 and 4 cases, respectively.

Read more…


Maintenance in matrimonial disputes| Extensive guidelines framed; Issue of overlapping jurisdiction under different Laws resolved

The bench ofIndu Malhotra and R. Subhash Reddy, JJ framed guidelines on overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

Read more…

Also read: Guidelines

[ Rajnesh v. Neha,  2020 SCC OnLine SC 903 ]


Appointments and functioning of Tribunals

A 3-judge bench issued extensive directions in relating to selection, appointment, tenure, conditions of service, etc. relating to various tribunals, 19 in number, thereby calling for certain modifications to the Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020.

“Dispensation of justice by the Tribunals can be effective only when they function independent of any executive control: this renders them credible and generates public confidence.”

Read more…

Also read: ‘It’s high time we put an end to the disturbing trend of Govt ignoring our directions.’ Read why Supreme Court directed constitution of National Tribunals Commission

[Madras Bar Association v. Union of India2020 SCC OnLine SC 962 ]


Constitutionality of imposition of GST on lotteries, betting and gambling

Lottery, betting and gambling are well known concepts and have been in practice in this country since before independence and were regulated and taxed by different legislations. When Act, 2017 defined the goods to include actionable claims and included only three categories of actionable claims, i.e., lottery, betting and gambling for purposes of levy of GST, it cannot be said that there was no rationale for including these three actionable claims for tax purposes.

Read more…

[Skill Lotto Solutions v. Union of India, 2020 SCC OnLine SC 990 ]


Homebuyer can choose between seeking remedy under the RERA Act or the Consumer Protection Act

The bench of UU Lalit and Vineet Saran, JJ held that the Real Estate (Regulation and Development) Act, 2016 (RERA Act) does not bar the initiation of proceedings by allottees against the builders under the Consumer Protection Act, 1986.

Read more… 

[Imperia Structures v. Anil Patni,  2020 SCC OnLine SC 894 ]


Domestic Violence| Wife’s right to residence in shared household belonging to not just husband but also to his relatives

“The domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day, however, it is the least reported form of cruel behavior. A woman resigns her fate to the never-ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime.” 

Read more…

[Satish Chander Ahuja v. Sneha Ahuja, 2020 SCC OnLine SC 841 ]


Daughters’ coparcenary rights

The 3-judge bench of Arun Mishra, SA Nazeer and MR Shah, JJheld that daughters have right in coparcenary by birth and that it is not necessary that the father coparcener should be living when the Hindu Succession (Amendment) Act, 2005 came into force.

“The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth.”

Read more…

[ Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 ]


Permanent commission to all women Army officers

The bench of Dr. DY Chandrachud and Ajay Rastogi, JJ has ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service.

“Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women.”

Read more… 

[Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469]


RBI’s ban on Cryptocurrency trading quashed

The 3-judge bench of Rohinton Fali Nariman, S Ravindra Bhat and V Ramasubramania, JJ has struck down the curb on trading in virtual currency, cryptocurrency and bitcoins in India.

In the 180 pages long verdict penned by Justice Ramasubramania, it was held,

“When the consistent stand of RBI is that they have not banned Virtual currencies (VCs) and when the Government of India is unable to take a call despite several committees coming up with several proposals including two draft bills, both of which advocated exactly opposite positions, it is not possible for us to hold that the impugned measure is proportionate.”

Read more…

[Internet & Mobile Assn. of India v. Reserve Bank of India, (2020) 10 SCC 274 ]


Installation of CCTV Cameras in all Police Station

The 3-judge bench of RF Nariman*, KM Joseph and Anirudhha Bose, JJ directed all the States and UTs to install CCTV cameras in all Police Stations and file compliance affidavits within 6 weeks. The Court said that the directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India, and hence, the Executive/Administrative/police authorities are to implement this Order both in letter and in spirit as soon as possible.

Read more… 

[Paramvir Singh Saini v. Baljit Singh, 2020 SCC OnLine SC 983 ]


Automatic expiration of stay 

“Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reason, within the next six months, the trial Court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same.” 

Read more…

[Also read detailed report on the 2018 verdict in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, 2018 SCC OnLine SC 310,  here.]


Political parties to publish criminal antecedents of candidates & give reasons for their selection

A bench of RF Nariman and S. Ravindra Bhat, JJ directed all political parties to upload on their website details of pending criminal cases against candidates contesting polls, noting that there has been an alarming increase in criminalisation of politics. The Court said political parties will also have to upload reasons for selecting candidates with pending criminal cases on their website.

Read more… 

[Rambabu Singh Thakur v. Sunil Arora, (2020) 3 SCC 733 ]


SC/ST (Prevention of Atrocities) Amendment Act, 2018 constitutionally valid

 A 3-judge bench of Arun Mishra, Vineet Saran and S. Ravindra Bhat, JJ has upheld the constitutional validity of the SC/ST (Prevention of Atrocities) Amendment Act, 2018, and said that a court can grant anticipatory bail only in cases where a prima facie case is not made out. In the unanimous verdict, Justice Mishra penned the opinion for himself and Justice Saran whereas Justice Bhat wrote a separate but concurring opinion.

Read more… 

[Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 ]


Test for determining non-arbitrability of disputes

The 3-judge bench of NV Ramana*Sanjiv Khanna** and Krishna Murari, JJ overruled the ratio in Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706 wherein it was held that landlord-tenant disputes governed by the provisions of the Transfer of Property Act, 1882, are not arbitrable as this would be contrary to public policy.

Read more…

[Vidya Drolia v. Durga Trading Corporation, 2020 SCC OnLine SC 1018 ]


Admissibility of electronic evidence without certificate under Section 65B of Evidence Act, 1872

In a reference dealing with the interpretation of Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the 3-judge bench of RF Nariman, S. Ravindra Bhat and V. Ramasubramanian, JJ held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in by the 3-judge bench in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, and incorrectly “clarified” by a division bench in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced.

Read more…

[Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 ]


Advance tax ruling system

The bench of SK Kaul and Indu Malhotra, JJ has recommended the Central Government to consider the efficacy of the advance tax ruling system and make it more comprehensive as a tool for settlement of disputes rather than battling it through different tiers, whether private or public sectors are involved. It suggested that a council for Advance Tax Ruling based on the Swedish model and the New Zealand system may be a possible way forward.

Writing two postscripts, the Court said that it was forced to do so on account of the backbreaking dockets which are ever increasing and as a move towards a trust between the Tax Department and the assessee.

Read more… 

[National Co-operative Development Corporation v. Commissioner of Income Tax, 2020 SCC OnLine SC 733 ]


Telecos get 10 years to pay AGR dues

Asking Telecom Operators to make the payment of 10% of the total AGR dues as by 31.3.2021, the 3-judge bench of Arun Mishra, SA Nazeer and MR Shah, JJ gave 10 years to the Telecom Service Providers (TSPs) to complete the payment of their AGR dues.

Read more…

[Union of India v. Assn. of Unified Telecom Service Providers of India, (2020) 9 SCC 748 ]


All petitions challenging the IBC provisions relating to personal guarantors transferred to Supreme Court

The Insolvency and Bankruptcy Code is at a nascent stage and it is better that the interpretation of the provisions of the Code is taken up by the Supreme Court to avoid any confusion.

Read more…

[Insolvency and Bankruptcy Board of India v. Lalit Kumar Jain,  2020 SCC OnLine SC 884 ]


The final order that sealed the fate for the Nirbhaya convicts

Putting the last nail in the coffin for the Nirbhaya death row convicts, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ dismissed the plea file by Pawan Kumar Gupta challenging the rejection of his mercy petition by the President on the ground that his plea of juvenility had not been finally determined and this aspect was not kept in view by the President of India while rejecting his mercy plea.

The hearing took place late at night at 2:30 AM.

Read more…

Also read:

[Pawan Kumar Gupta v. State of NCT of Delhi, 2020 SCC OnLine SC 340 ]


Shaheen Bagh Protests

“Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.” 

The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has, in the Shaheen Bagh protests matter, held that while there exists the right to peaceful protest against a legislation, public ways and public spaces cannot be occupied in such a manner and that too indefinitely.

Read more…

[Amit Sahni v. Commissioner of Police, 2020 SCC OnLine SC 808 ]


Farmers’ protest

“Indeed the right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order.”

Refusing to interfere with the ongoing Farmers’ protest, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ said that the farmers’ protest should be allowed to continue without impediment and without any breach of peace either by the protesters or the police.

Read more…

[Rakesh Vaishnav v. Union of India, 2020 SCC OnLine SC 1032 ]


Sushant Singh Rajput Death Case

When truth meets sunshine, justice will not prevail on the living alone but after Life’s fitful fever, now the departed will also sleep well. Satyameva Jayate.”

A single judge bench of Hrishikesh Roy, J has held the ongoing investigation by the CBI to be lawful and further directed that if any other case is registered on the death of the actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death, the CBI is directed to investigate the new case as well.

Read more… 

[Rhea Chakraborty v. State of Bihar, 2020 SCC OnLine SC 654 ]


Scandalous allegations against Supreme Court judges

After finding advocates Vijay Kurle, Nilesh Ojha and Rashid Khan Pathan guilty of levelling scandalous allegations against Justice RF Nariman and Justice Vineet Saran, the bench of Deepak Gupta and Aniruddha Bose, JJ has sentenced all 3 to undergo simple imprisonment for a period of 3 months each with a fine of Rs. 2000/-. It further said that in default of payment of fine, each of the defaulting contemnors shall undergo further simple imprisonment for a period of 15 days.

Read: 

[Vijay Kurle, In re, 2020 SCC OnLine SC 407  and Rashid Khan Pathan v. Vijay Kurle, 2020 SCC OnLine SC 711]


Vikas Dubey Encounter

After Vikas Dubey, a history-sheeter and gangster-turned-politician, was killed in a police encounter on July 10, 2020, the Supreme Court gave a go ahead to Inquiry Committee headed by Former SC judge Justice B S Chauhan.

Later,  a 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ refused to scrap the Judicial Committee constituted to look into the killing of Vikas Dubey and said that the allegations of bias made against the members of the Commission merely on the basis of newspaper reports and nothing more, are liable to be rejected outright.

“ … the Chairman and a Member of the Commission had held high Constitutional positions and while making allegations the petitioner has based his claim only on the newspaper report and the manner in which the averments are made in the application is unacceptable.”

Read: 

[Ghanshyam Upadhyay v. State of Uttar Pradesh2020 SCC OnLine SC 587 and 2020 SCC OnLine SC 658 ]


Prashant Bhushan Contempt proceedings

Twitter row

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ has, in a 108-pages long verdict, held advocate Prashant Bhushan guilty of criminal contempt in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets. It held,

The tweets which are based on the distorted facts, in our considered view, amount to committing of ‘criminal contempt’. 

The Court, however, sentenced Bhushan with a fine of Rupee 1 for his contemptuous tweets and said

“If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of  Re.1/­ (Rupee one).”

Read:

[Prashant Bhushan, In re, 2020 SCC OnLine SC 646 and  2020 SCC OnLine SC 698 ]

Tehelka contempt

In another contempt proceeding against Bhushan, after refusing to accept the explanation of advocate Prashant Bhushan in the 2009 contempt petition against Advocate Prashant Bhushan and former Tehelka Tarun Tejpal, the 3-judge bench of Arun Mishra, BR Gavai and MR Shah, JJ framed larger questions in the matter that will have far-reaching ramifications.

Read more… 

[Amicus Curiae v. Prashant Bhushan, 2020 SCC OnLine SC 651 ]


Kunal Kamra and Rachita Taneja contempt cases 

The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ issued notice to cartoonist Rachita Taneja and comedian Kunal Kamra in two separate cases relating contemptuous social media posts.

Read more…

[Shrirang Katneshwarkar v. Kunal Kamra2020 SCC OnLine SC 1041 and Aditya Kashyap v. Rachita Taneja, 2020 SCC OnLine SC 1042 ]


Here’s the list of some of the important COVID-19 Orders/Direction issued by the Supreme Court:

“Even if one survives from COVID-19, many times financially and economically he is finished.”

“To a worker who has faced the brunt of the pandemic and is currently laboring in a workplace without the luxury of physical distancing, economic dignity based on the rights available under the statute is the least that this Court can ensure them.” 


Also read:

2020 Roundup: 11 Constitution bench judgments, 17 judges, Zero dissent

 

Compliance Checklist
OP. ED.Practical Lawyer Archives

Minutes are summary of the proceedings of a meeting. According to the provisions of Section 118 of the Companies Act, 2013 (“Act”), every company shall maintain minutes prepare and maintain minutes of the proceedings of every general meeting of any class of shareholders or creditors, and every resolution passed by postal ballot and every Board meeting or committee meeting. Under the Act, the minutes of the meeting shall be evidence of the proceedings recorded therein. Where the minutes have been kept in accordance with the provisions of the Act, until the contrary is proved, the meeting shall be deemed to have been duly called and held, and all proceedings thereat to have duly taken place, and the resolutions passed, all appointments of Directors, key managerial personnel, auditors or company secretary in practice, shall be deemed to be valid.

In Yamuna Reddy v. B. Sivaraman[1]  Madras High Court observed that:

 “A cursory perusal of Section 195[2] regarding the presumption to be drawn where minutes of the company duly drawn and signed, clearly proves that the presumption arising in this section is a rebuttable one by adducing contrary evidence; that if a proper minutes book is kept and proceedings of meetings are duly recorded, it shall be deemed that the meeting has been duly called, held and all proceedings thereat have duly taken place and the consequent appointment of Director or Directors has been validly made. If the minutes are not recorded or signed within the prescribed period, then it is to be presumed that it is not properly kept and it will not be receivable in evidence. However, the onus to rebut the presumption under Section 195 (of Companies Act, 1956) is on the person who challenges the resolution or the entering of the minutes on the ground of malpractice or misdeed. ”

Taking into account Covid-19 situation that requires social distancing with necessary precautions, Ministry of Corporate Affairs (MCA) allowed companies to conduct shareholders meeting through
Videoconferencing/Other Audio-Visual Means (VC/OAVM). This article is a checklist for preparation, signing and maintenance of minutes of annual general meeting (AGM) conducted through VC/OAVM under the relevant provisions. The listed entities shall ensure compliance with the relevant provisions of Securities and Exchange Board of India (SEBI) (Listing Obligations and Disclosure Requirements) Regulations, 2015.

  1. Applicability.—The provisions of Section 118 of the Act, read with the Rules and circulars issued by the MCA (w.r.t. general meeting through VC/OAVM) are applicable to all companies —private companies, public companies (listed and unlisted companies).
  2. Content to be included in Minutes of AGM through VC.—The minutes of AGM through VC shall provide a fair and correct summary of the proceedings of the meeting. All appointments (i.e. Chairman, Director appointment, retire-by-rotation, reappointment of independent Director, statutory auditors, cost auditors, etc.) made at AGM shall be included in the minutes of the meeting. There shall not be included in the minutes, any matter which, in the opinion of the Chairman of the meeting: (a) is or could reasonably be regarded as defamatory of any person; or (b) is irrelevant or immaterial to the proceedings; or (c) is detrimental to the interests of the company. The Chairman shall exercise absolute discretion in regard to the inclusion or non-inclusion of any matter in the minutes of meeting. In relation to the circulars issued the MCA, the minutes of the AGM conducted through VC/OAVM may include the following:

(a) The notice of the meeting, financial statements of the company were sent to all stakeholders concerned through electronic mode.

(b) Summary of instructions read out by the Chairman of the meeting conducted through VC/OAVM.

(c) The facility for joining the meeting was kept open at least 15 minutes before the time scheduled to start the meeting and was not closed till the expiry of 15 minutes after such scheduled time.

(d) Manner of appointment of Chairman of the meeting.

(e) Name and designation of the invitees present at the meeting i.e. statutory auditors, secretarial auditors, independent directors, chairpersons of the Audit Committee, Nomination and Remuneration Committee and Stakeholders Relationship Committee.

(f) The fact that before the actual date of the meeting, the facility of remote e-voting was provided in accordance with the Act and the Rules (if remote e-voting provisions are applicable).

(g) Number of members present for the meeting. The attendance of members through VC/OAVM shall be counted for the purpose of reckoning the quorum.

(h) Manner of voting i.e. show of hands or voting by poll.

(i) The fact that various documents and registers were available for inspection in accordance with the provisions of Companies Act and MCA circulars.

(j) Depending upon the provisions of the articles of association of the company, the name of proposer and seconder of the specific resolution shall also be included in the minutes of the meeting.

  1. Minutes Book.—A company may maintain a distinct minute book for each type of meeting, namely: (i) general meetings of the members; (ii) meetings of the creditors; (iii) meetings of the Board of Directors; and (iv) meetings of each of the committees.
  2. Date of Entry.—The minutes of proceedings of each meeting shall be entered in the books maintained for that purpose along with the date of such entry within 30 days of the conclusion of the meeting.
  3. Signing and Initials of Minutes of Meeting.—For general meeting, each page of every minutes book shall be initialled or signed and the last page of the record of proceedings of each meeting in such books shall be dated and signed by the Chairman of the same meeting within the period of 30 days or in the event of the death or inability of that Chairman within that period, by a Director duly authorised by the Board of Directors for the purpose.
  4. Place of Maintenance of Minutes of General Meeting.—The minute books of general meetings shall be kept at the registered office of the company. The same shall be preserved permanently and kept in the custody of the Company Secretary or any director duly authorised by the Board.
  5. Inspection of Minutes of General Meeting.—The minute books of general meeting shall be kept open, during business hours, to the inspection by any member without charge. Such right is subject to such reasonable restrictions as the company may, by its articles of association or in general meeting, impose. Any member shall be entitled to be furnished, within 7 working days after he has made a request in that behalf to the company, and on payment of such prescribed fees with a copy of minutes of meeting. A member who has made a request for provision of soft copy in respect of minutes of any previous general meetings held during a period immediately preceding 3 financial years shall be entitled to be furnished, with the same free of cost.
  6. Compliance with Secretarial Standards issued by Institute of Company Secretaries of India.—Every company shall observe secretarial standards with respect to general and Board meetings specified by the ICSI, and approved by Central Government.

Taking into consideration the importance of minutes of general meeting, it’s evidentiary value, inspection rights of the members of the company, the minutes for the AGM conducted in the year 2020 shall be prepared in accordance with the provisions of the Act, Rules and MCA circulars (Circular No. 14 of 2020 dated 8-4-2020 and Circular No. 17 of 2020 dated 13-4-2020). It is necessary to ensure that all relevant and important points are included in the minutes of meeting. This may include question and answer session during the AGM of the company. In certain closely held companies, the members may conduct a roll-call of members, such facts shall also be included in the minutes of the meeting.


*Gaurav N Pingle, Practising Company Secretary, Pune. He can be reached at gp@csgauravpingle.com

[1] 1992 SCC OnLine Mad 400 : (1992) 75 Comp Cas 199.

[2]  Of the Companies Act, 1956, corresponding to S. 118 of the Companies Act, 2013.

Hot Off The PressNews

The Supreme Court of India has cautioned all the Advocates-on-Record, parties-in-person and all other concerned against unauthorised sharing of link/screen of Video-Conference/Tele-Conference hearings without permission of the Court. The Circular dated 06.11.2020 states that if the directions of the Court are flouted then it may invite “adverse consequences”.

“The Advocates/parties-in-person appearing in violation of above mentioned Standard Operating Procedure shall not be allowed to address the Hon’ble Court, rather their audio and video access will be prohibited.”

In the Standard Operating Procedure dated 4th July, 2020, it was specifically provided that only two appearance links and one viewing link shall be provided to each litigating party. Sharing of screen is also prohibited unless permitted by the Court.

The Circular highlights that despite the SOP being in place, the Advocates-on-Records are sharing the links, provided to them for video conferencing, with more than two advocates to appear before the Court during the course of proceeding. It, further, states,

“… Advocates are addressing the Court in the matters not listed for hearing on that day. Such sharing of Video-Conferencing links or sharing of screen, being violative of the above mentioned Standard Operating Procedure, is unauthorised, and creates hindrance in the proceedings of the Court.”

Read the Circular here

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and Dr. DY Chandrachud and L. Nageswara Rao, JJ has made a slight modification in the guidelines issued by it on April 06, 2020 on functioning of courts through video conferencing amidst the COVID-19 pandemic.

The Court has ordered that the directions issued earlier need not be altered except sub-para (vii) of Paragraph 6 which shall be substituted with the following:

“The Video Conferencing in every High Court and within the jurisdiction of every High Court shall be conducted according to the Rules for that purpose framed by that High Court. The Rules will govern Video Conferencing in the High Court and in the district courts and shall cover appellate proceedings as well as trials.”

Earlier sub-para (vii) of Paragraph 6 of the order dated April 06, 2020 read as:

“Until appropriate rules are framed by the High Courts, video conferencing shall be mainly employed for hearing arguments whether at the trial stage or at the appellate stage. In no case shall evidence be recorded without the mutual consent of both the parties by video conferencing. If it is necessary to record evidence in a Court room the presiding officer shall ensure that appropriate distance is maintained between any two individuals in the Court.”

Noticing that several High Courts have framed their rules already, the Court directed that those High Courts that have not framed such Rules shall do so having regard to the circumstances prevailing in the State and

“Till such Rules are framed, the High Courts may adopt the model Video Conferencing Rules provided by the E-Committee, Supreme Court of India to all the Chief Justices of the High Court.”

Impressed with the functioning of virtual courts across the country amidst COVID-19 pandemic, the Court said,

“We must say the system of Video Conferencing has been extremely successful in providing access to justice.”

[IN RE GUIDELINES FOR COURT FUNCTIONING THROUGH VIDEO CONFERENCING DURING COVID 19 PANDEMIC, SMW (C) No(s). 5/2020, order dated 26.10.2020]


Read the guidelines dated April 06, 2020 on functioning of courts through video conferencing here

COVID 19Hot Off The PressNews

Standard Operating Procedure for the resumption of physical functioning in the Delhi High Court from 01-09-2020

  • Regulations relating to entry in the court blocks for attending physical hearings and VC Court Rooms for VC Hearings
  1. Entry into the court block, for the purposes of attending physical hearings and VC hearings, shall stand restricted.
  2. No entry in the court blocks shall be permitted to:-
  • Juniors, Interns or law students associated with the Advocate concerned
  • Relative of any party-in-person/litigant
  • Non-registered clerks

3. No litigant, who is represented by any Advocate, would be permitted entry unless there is specific direction by the Hon’ble Court.

4. Advocates, Party-in-person and registered clerks above the age of 65 years and those suffering from co-morbidities may refrain from appearing in courts.

5. Persons displaying symptoms of flu, fever, cough, etc. shall not be permitted entry inside the court complex.

6. Mandatory norms are to be followed by all concerned who are permitted to enter the Court building/Court Room.

Further, the SOP has been listed under the following headings:

  • Court Blocks for Physical Hearing
  • Time-slot/Staggered Entry
  • Arrangements inside the Courtroom
  • Other Facilities
  • System of Mentioning
  • Matters to be taken up by the Courts
  • General Regulations

Read the public notice, here: NOTICE


Delhi High Court

[Public Notice dt. 27-08-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., directed that the statements under Section 164 of the Code of criminal Procedure, 1973 of children in need of care and protection should be recorded by the Metropolitan Magistrate over video conferencing or by visiting the observation homes.

Petitioner has established a Child Care Institution under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Reason for filing the present petition was that, out of a rescue operation in July, 2020 ten minors who were working as child labour were rescued and brought to the Mukti Ashram.

Contention of the petitioner is that the children were compelled to leave Mukti Ashram and physically attend the Court of the Metropolitan Magistrate for recording of their statements under Section 164 of the Code of Criminal Procedure, 1973 and for giving samples for COVID-19 testing.

Respondents should lay down procedures for recording of the childrens’ statements and their medical testing, which does not require them to leave the institution or at atleast to attend at crowded public places.

Bench stated that in the interest of the children who require care and protection it should be necessitated that their exposure t crowded environments be avoided in the prevailing circumstances of the COVID-19 pandemic. As far as possible, they shouldn’t be required to leave the premises of the Child Care Institution in which they are housed.

Court directed as follows:

  • Statements under Section 164 of the Code of Criminal Procedure, 1973 of children in need of care and protection can be recorded by the Metropolitan Magistrate over video conferencing or if the Metropolitan Magistrate deems it necessary, he/ she can visit the concerned observation homes/Child Care Institutions where such children are housed, for recording the statement in person.
  • Proceedings before the Child Welfare Committees and other bodies where the children are required to participate, are already being conducted by video-conference. We direct that this process should be continued, and the requirement of taking the child out of the home/ Child Care Institution should be avoided as far as possible.
  • Covid-19 tests will also be carried out by the State authorities for the children in need of care and protection who are staying at different homes/Child Care Institutions under the Juvenile Justice (Care and Protection of Children) Act, 2015. The sample shall be collected for this purpose either at the home/Child Care Institution or at the office of the Sub-Divisional Magistrate of the area. The authorities will ensure that all precautions for the welfare of the child are taken, and that the sample is expeditiously collected, so that the child can return to the home/ institution.

In view of the above observations, petition was dismissed. [Bachpan Bachao Andolan v. GNCTD, WP(C) No. 4361 of 2020, decided on 28-07-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Vikram Nath, CJ and P.B. Pardiwala, J., while addressing an issue with regard to the live streaming of the Court proceedings held that a committee to work out the modalities for the said purpose has been constituted comprising of two Judges of this Court.

A law student raised the issue with regard to the Live Streaming/Open Access of the Court proceedings and in the public interest Gujarat High court should work out the necessary modalities for the said purpose.

Bench on perusal of the material on record, stated that to observe the  requirement of an open Court proceedings, members of the public should be allowed to view the Court hearings through video conferencing except the proceedings ordered for the reasons recorded in writing to be conducted in-camera.

Right to Know and receive information is one of the facts of Article 19(1)(a) of the Constitution and for which reason the public is entitled to witness the Court proceedings.

As, the above-stated Court proceedings involve the issue impacting the public at large or a section of the public.

Bench appreciated the efforts of the 3rd year law student appeared in person in the public interest.

Further, in line of the above-stated observations, Bench stated that to work out the modalities to facilitate the people at large including the media to watch the virtual hearing, Committee of two Judges of this High Court has been constituted pursuant to Standing Committee’s decision on 25-06-2020.

In the near future, a report of the committee is expected after which to allow access to the public at large including the media persons of print digital and electronic media shall be finalized.

Petition was disposed of in view of the above. [Pruthvirajsinh Zala v. Gujarat High Court, 2020 SCC OnLine Guj 1055 , decided on 20-07-2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, SK Kaul and MR Shah, JJ has held that it’s order dated 23.03.2020, wherein the Court had extended limitation period of appeals from high courts or tribunals on account of COVID-19 pandemic, cannot be read to mean that it ever intended to extend the period of filing charge sheet by police as contemplated under Section 167(2) of the Code of Criminal Procedure.

Setting aside the Madras High Court judgment, where it was had held that the Supreme Court order dated 23.03.2020 eclipsed all provisions prescribing period of limitation until further orders, including the time prescribed under Section 167(2) of the code of Criminal Procedure, the bench said,

“neither this Court in its order dated 23.03.2020 can be held to have eclipsed the time under Section 167(2) CrPC nor the restrictions which have been imposed during the lockdown announced by the Government shall operate as any restriction on the rights of an accused as protected by Section 167(2) regarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed.”

On 23.03.2020, the Court had extended the limitation for filing petitions/ applications/ suits/ appeals/all other proceedings to obviate lawyers/litigants to come physically to file such proceedings in respective Courts/Tribunals. The Court, in the present order explained that the said order was passed to protect the litigants/lawyers whose petitions/ applications/ suits/ appeals/all other proceedings would become time barred they being not able to physically come to file such proceedings. The order was for the benefit of the litigants who have to take remedy in law as per the applicable statute for a right.

“When this Court passed the above order for extending the limitation for filing petitions/ applications/ suits/ appeals/all other proceedings, the order was for the benefit of those who have to take remedy, whose remedy may be barred by time because they were unable to come physically to file such proceedings.”

Stating that the scheme of Code of Criminal Procedure clearly delineates that provisions of Section 167 of Code of Criminal Procedure gives due regard to the personal liberty of a person, the Court explained that without submission of charge sheet within 60 days or 90 days as may be applicable, an accused cannot be detained by the Police. The provision gives due recognition to the personal liberty.

Noticing that the law of limitation bars the remedy but not the right, the Court said that the Investigating Officer in the present case could have submitted/filed the charge sheet before the (Incharge) Magistrate. Therefore, even during the lockdown and as has been done in so many cases the charge-sheet could have been filed/submitted before the Magistrate (Incharge) and the Investigating Officer was not precluded from filing/submitting the charge-sheet even within the stipulated period before the Magistrate (Incharge).

On High Court’s opinion that the lockdown announced by the Government is akin to proclamation of Emergency, the Court said,

“The view of the learned Single Judge that the restrictions, which have been imposed during period of lockdown by the Government of India should not give right to an accused to pray for grant of default bail even though charge sheet has not been filed within the time prescribed under Section 167(2) of the Code of Criminal Procedure, is clearly erroneous and not in accordance with law.”

It is pertinent to note that another bench of Madras High Court had, in Settu v. State, Crl.OP(MD)No. 5291 of 2020, already considered the judgment of this Court dated 23.03.2020 and noticing that personal liberty is too precious a fundamental right, it had held,

“The noble object of the Hon’ble Supreme Court’s direction is to ensure that no litigant is deprived of his valuable rights. But, if I accept the plea of the respondent police, the direction of the Hon’ble Supreme Court which is intended to save and preserve rights would result in taking away the valuable right that had accrued to the accused herein.”

The single judge in the impugned judgment before the Court had called the above mentioned Madras High Court order uncharitable. On this the Court said that the impugned judgment is not only erroneous but also sends wrong signals to the State and the prosecution emboldening them to act in breach of liberty of a person. It, further, said that all Courts including the High Courts and the Supreme Court have to follow a principle of Comity of Courts. A Bench whether coordinate or Larger, has to refrain from making any uncharitable observation on a decision even though delivered by a Bench of a lesser coram.

“A Bench sitting in a Larger coram may be right in overturning a judgment on a question of law, which jurisdiction a Judge sitting in a coordinate Bench does not have. In any case, a Judge sitting in a coordinate Bench or a Larger Bench has no business to make any adverse comment or uncharitable remark on any other judgment.”

[S. Kasi v. State, 2020 SCC OnLine SC 529 , decided on 19.06.2020]


Also read:

COVID-19| SC extends limitation period for filing petitions/applications/suits/appeals, etc.

COVID 19Hot Off The PressNews

The Supreme Court Registry has notified the list of 1239 matters that are likely to be heard by the Supreme Court through Video Conferencing from June 1, 2020.

Earlier, the Registry had notified the new schedule for summer vacations of the Court. The Notice read:

“the period from 18th May, 2020 to 19th June, 2020 (both inclusive) shall be declared as period functioning for the Supreme Court of India.”

The Court was originally supposed to remain closed from May 18, 2020 to July 5, 2020 but the same was changed due to the ongoing Coronavirus Pandemic.  The Court had, on March 23, 2020, opted to hold video-conference to hear urgent matters in an unprecedented move

Click here to access the list of matter.


Also read: 

COVID-19| No in-person hearings in SC till further notice; Extremely urgent matters to be heard via video conference

COVID-19| Here’s the list of directions issued by CJI Bobde in the light of Coronavirus lockdown

COVID-19| SC extends limitation period for filing petitions/applications/suits/appeals, etc

COVID-19| SC extends limitation prescribed under the A&C, 1996 and the NI Act,1881

Hot Off The PressNews

Orissa High Court issued a Circular notifying that considering the disruption in power supply and internet connectivity and forecast of heavy rains due to the Super Cyclone Amphan and keeping in view the request of Bar, functioning of Court through video conferencing shall not be possible on 20th May, 2020 i.e. today.

All case listed for 20th May, 2020 shall be taken up on 21st May, 2020.

NOTICE


Orissa High Court

[Notice dt. 20-05-2020]

COVID 19OP. ED.Practical Lawyer Archives

Under the extant provisions of the Companies Act, 2013 (“the Act”), approval of the shareholders can be obtained by passing a resolution in general meeting or voting through electronic means (i.e. e-voting) or postal ballot. The Act read with the relevant Rules made thereunder provide for detailed procedures for obtaining shareholders’ approval. Under the extant provisions, only meeting of the board of directors can be held through videoconferencing (VC) and other audio-visual means (OAVM). In view of the current extra-ordinary circumstances due to the pandemic caused by COVID-19 prevailing in the country, requiring social distancing, it is difficult for companies to obtain shareholders’ approval by conducting general meetings. Taking into consideration this situation, the Ministry of Corporate Affairs (MCA) had provided a framework for conducting extra-ordinary general meeting of the company through VC or OAVM[1]. MCA issued another Circular and permitted the companies to hold the annual general meeting through VC or OAVM during the calendar year 2020[2].

This article is an analysis of certain provisions of the MCA directions and also address certain challenges for listed companies in conducting AGM through VC or OAVM.

Rights of shareholders: Before we discuss the procedure for conducting general meetings through VC or OAVM, let us first discuss the rights of shareholders. Chapter II of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 (the SEBI Regulations) relates to ‘Principles governing disclosures and obligations of listed entity’. According to the provisions, the shareholders shall have the right to participate in, and to be sufficiently informed of, decisions concerning fundamental corporate changes. The shareholders shall also have an opportunity to participate effectively and vote in general shareholder meetings. Shareholders shall be informed of the rules, including voting procedures that govern general shareholder meetings. They shall have an opportunity to ask questions to the board of directors, to place items on the agenda of general meetings, and to propose resolutions, subject to reasonable limitations. Effective shareholder participation in key corporate governance decisions, such as the nomination and election of members of board of directors. The exercise of ownership rights by all shareholders, including institutional investors. Listed entity shall have adequate mechanism to address the grievances of the shareholders.

The SEBI Regulations also provide that the exercise of voting rights by foreign shareholders shall be facilitated and the processes and procedures for general meetings shall allow for equitable treatment of all shareholders. The procedures of listed entity shall not make it unduly difficult or expensive to cast votes. The listed entities shall also ensure the said rights prescribed in the SEBI Regulations are not affected when the AGM of the company is conducted through VC or OAVM.

The highlights of the MCA Circular permitting companies to hold AGMs through VC or OAVM and certain challenges are as follows:

  1. Taking into consideration the difficulties involved in dispatching of physical copies of financial statements (including Board’s Report, Auditor’s Report, or other documents required to be attached), MCA has permitted sending such documents by e-mail to the members, trustees for the debenture-holders, or any other person entitled to receive such documents. The companies are required to give public notice by way of advertisement in vernacular language of the district in which registered office is situated and at least once in English language in English newspaper (preferably both newspapers having electronic editions). Considering this, the cost of conducting general meetings is significantly reduced for such listed companies.
  2. One of the biggest challenges for listed companies is to get the e-mail addresses of the members (holding shares in physical form) registered for sending financial statements. This will also enable the shareholders to cast their vote through remote e-voting or through e-voting during the meeting. Presently, even in the lockdown, the depositories, Registrar and share transfer agents and companies are taking adequate steps for the registration of e-mail addresses of such shareholders. However, for certain listed companies some shareholders are either not traceable or their contact details are not updated.
  3. According to MCA directions, the listed company shall provide two-way tele-conferencing facility or webex for ease of participation of the members and the participants are allowed to pose questions concurrently or given time to submit questions in advance on the e-mail address of the company. Such facility must have a capacity to allow at least 500 members or members equal to the total number of members of the company. According to the principles governing disclosures and obligations of listed entity under the SEBI Regulations (as discussed above), the shareholders shall have right to participate in, and to be sufficiently informed of, decisions concerning fundamental corporate changes. The shareholders shall also have an opportunity to participate effectively and vote in general shareholder meetings. The shareholders shall have an opportunity to ask questions to the board of directors, to place items on the agenda of general meetings, and to propose resolutions, subject to reasonable limitations. Considering the total number of shareholders and their participation, it would be quite difficult for listed companies to provide two-way tele-conferencing facility in the general meetings. Considering the participation of members and question-answer session, such meetings would take a long time to conclude. Presently, the companies/Registrar and share transfer agents are in the process of developing a system to answer/reply to the queries asked in the general meeting through VC or OAVM.
  4. According to the MCA directions, the process for election of Chairman depends upon the members present at the meeting i.e. if members present are less than 50, then the Chairman is appointed in accordance with Section 104 of the Act. And if the members present are more than 50, then the Chairman shall be appointed by a poll conducted through electronic voting system during the meeting. i.e. generally, in the case of listed entities, it will be compulsory to have a system of ‘electronic voting during the meeting’ for members attending electronically (i.e. VC or OAVM). This mandatory agenda item of electing the Chairman would consume a lot of time before discussing the agenda for the meeting. For listed entities (at least for 500-BSE companies), the participation in general meeting would be more than 50 members. The MCA direction with reference to the appointment of Chairman for the meeting directly conflicts with the provision in the Act. It would be quite challenging for the companies to comply with the said provision.
  5. According to the MCA directions, where less than 50 members are present in a meeting, the Chairman may decide to conduct a vote by show of hands (i.e. one member is equal to one vote, irrespective of shareholding), unless a demand for poll (i.e. one share is equal to one vote) is made by any member in accordance with Section 109 of the Act. In the VC system or OAVM system, the listed companies would be required to have a mechanism for demanding poll and the shareholders should be equipped to participate in the demand. Considering that e-voting (i.e. one share is equal to one vote) is open not less than 3 days before the general meeting, the MCA should have provided uniform method of voting for the general meeting through VC or OAVM.
  6. Under the Act, the register of directors and KMP and their shareholding shall be kept open for inspection at every annual general meeting of the company and shall be made accessible to any person attending the meeting. The VC system may have a facility of the company to upload the scanned copy of the register and members during the meeting through VC or OAVM may inspect the same. Similarly, if the articles of association of the company are being amended, the draft articles of association can be made available for inspection in the VC system.
  7. According to the extant provisions of the Act, the annual general meeting of the company shall be called during business hours i.e. between 9 a.m. to 6 p.m. According to the MCA directions, the convenience of different persons positioned in different time zones shall be kept in mind before scheduling the meeting. Listed entities shall balance the two provisions for conducting the meeting, however ensuring convenience of shareholders in different time zones is difficult.
  8. In case of payment of final dividend, MCA has directed companies to pay dividend though electronic clearing service or any other means. Where the company is unable to pay the dividend to any shareholders by electronic mode, due to non-availability of bank details, the company are directed to dispatch the dividend warrant/cheque to such shareholder by post (i.e. upon normalisation of postal services). Post-lockdown and thereafter, if such dividend is not claimed by the shareholder then it may get credited in unpaid dividend account and then investor education and provident fund (IEPF) account which may be more difficult for the shareholders to claim such dividend.
  9. Considering the fact that the member would be attending the general meeting through VC or OAVM, the concept of proxy has become redundant. As per the MCA Circular, such member would be counted for the purpose of reckoning the quorum under the Act.
  10. Atleast an independent director and auditor/representative of auditor are mandated to attend the such meeting through VC or OAVM. Institutional investors are encouraged to attend and vote at the meeting.

Taking into consideration that MCA has permitted companies to hold the general meetings through VC or OAVM, SEBI may also relax certain provisions of the SEBI Regulations in due course. It will be interesting to see the effective implementation of the dynamic amendments introduced to the provisions of general meeting – i.e. calling of meeting, holding and conducting of meeting. Taking into consideration the current extra-ordinary circumstances due to the pandemic caused by COVID-19, for the general meetings for the year 2020 should be more of ‘shareholders co-operation’ than ‘shareholders activism’, except in exceptional circumstances.


*Practising Company Secretary, Pune. He can be reached at gp@csgauravpingle.com

[1] MCA General Circular No. 14/2020 dated April 8, 2020.

[2] MCA General Circular No. 20/2020 dated May 5, 2020.