All High Courts Weekly Round-Up [June 27 To July 3, 2022]

NOMINAL INDEX

Irfan v. State of U.P. 2022 LiveLaw (AB) 303

Manish v. State of U.P 2022 LiveLaw (AB) 304

Bhagwati Singh @ Pappu v. State of U.P 2022 LiveLaw (AB) 305

Mohar Pal And Another v. State Of U.P. And 2 Others 2022 LiveLaw (AB) 306

Orders/Judgments of the Week

Allahabad High Court Grants Bail To Man Accused Of Beating People Who Were Raising Slogan Of 'Jai Sri Ram'

Case title - Irfan v. State of U.P.

Citation: 2022 LiveLaw (AB) 303

The Allahabad High Court on Monday granted conditional bail to a man accused of beating people were returning back to their house raising the slogan of 'Jai Sri Ram.

The Bench of Justice Jayant Banerjee ordered the release of the accused (Irfan) on a personal bond of Rs 50,000 and on his furnishing a personal bond of Rs. 50,000/ with two sureties.

Can't Allow Bail On Parity When Co-Accused Was Granted Bail Without Assigning Any Reasons: Allahabad High Court

Case title - Manish v. State of U.P

Citation: 2022 LiveLaw (AB) 304

The Allahabad High Court has observed that if bail is granted to similarly placed co-accused persons without assigning any reasons, then, on the basis of such bail orders, merely on the ground of parity, the bail application should not be allowed.

Essentially, the Bench of Justice Sameer Jain was dealing with the case of one Manish who was seeking bail in connection with a murder case wherein it was alleged that he, along with his parents ablazed a lady by pouring kerosene oil on her.

Allahabad High Court Upholds Life Term In Eight Time National Badminton Champion Syed Modi Murder Case

Case title - Bhagwati Singh @ Pappu v. State of U.P

Citation: 2022 LiveLaw (AB) 305

The High Court upheld the life sentence awarded to an accused in connection with the murder of an eight-time National Badminton Champion Syed Modi, who represented India in various international championships.

The Bench of Justice Ramesh Sinha and Justice Saroj Yadav took into the record the evidence adduced before it to conclude that Modi was killed by firing made by convict/appellant along with one another accused by using fire arm.

Sections 4 And 5 Of CrPC Do Not Apply To Offences Under IPC: Allahabad High Court

Case title - Mohar Pal And Another v. State Of U.P. And 2 Others

Case citation: 2022 LiveLaw (AB) 306

The High Court held that the provisions of Sections 4 and 5 of the CrPC do not apply to offencs committed under the Indian Penal Code and that these provisions are applicable when any special act comes into operation.

The Division Bench of Justice Kaushal Jayendra Thaker and justice Gautam Chowdhary passed this order while hearing a petition filed by Mohar Pal And Another and observed that Sections 4 and 5 of CrPC pertain to the procedure where the offence under a particular Act is committed.

Other updates from the High Court

[Prayagraj Demolition] "Building Was Used As 'Welfare Party Of India' Office, Had Javed's Nameplate": UP Govt Tells Allahabad HC

Defending its move to demolish the residence of Welfare Party Of India's leader Javed Pump (an accused in the Prayagraj violence case) by the district administration and Prayagraj Development Authority (PDA) on June 12, the UP Government has told the Allahabad High Court that the building had Pump's nameplate and the same was being used a party's office.

This response has been filed by the State Govt pursuant to the Allahabad High Court's June 28 order wherein it had sought its reply on the plea moved by the wife of the Prayagraj Violence (June 10) accused Javed Mohammad.

Bombay High Court

Ocean Sparkle Limited. V Oil and Natural Gas Corporation Ltd. And anr; 2022 LiveLaw (Bom) 233

Calcutta High Court

Nominal Index

Sri Daksh Singhal & Ors v. The State of West Bengal and Others 2022 LiveLaw (Cal) 258

Ashok Jana v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 259

Dr. Kunal Saha v. West Bengal Medical Council (WBMC) and 2022 LiveLaw (Cal) 260

Abdul Khalek Laskar & Anr v. Union of India & Ors 2022 LiveLaw (Cal) 261

Orders/Judgments

1. 'Turns A Blind Eye To Merit': Calcutta High Court Sets Aside Private Trust Nominations To PG Courses In Govt Medical College

Case Title: Sri Daksh Singhal & Ors v. The State of West Bengal and Others

Case Citation: 2022 LiveLaw (Cal) 258

The Calcutta High Court has recently set aside the nominations made to post-graduate medical courses in the Institute of Post-Graduate Medical Education & Research (IPGEM&R) by a private Trust by opining that such a process turns a blind eye to merit and that it would entail the public being on the receiving end of sponsoring future-doctors without knowing whether they are the best of the pick. Justice Moushumi Bhattacharya observed, "There is no intelligible benchmark disclosed by the Trust as to the reason why the private respondents were recommended for admission despite having lower ranks compared to the petitioners in the NEET - PG Test. The assessment hence is a parallel selection process outside the recommended statutory framework and is subversive of the Act and the Regulations. The Trust has not only turned a blind eye to merit but has doffed its hat to the dilution of merit. The State is hence precluded by law to accept the recommendations."

Case Title: Ashok Jana v. The State of West Bengal & ors.

Case Citation: 2022 LiveLaw (Cal) 259

The Calcutta High Court on Wednesday personally interacted with a minor victim girl who had allegedly been kidnapped and thereafter ordered for the girl to be handed over to her parents pursuant to her request. Justice Shampa Sarkar had earlier directed the Superintendent of Police, Purba Medinipur to file a report before the Court indicating the reasons as to why the minor girl who was allegedly kidnapped, has not yet been recovered. "The victim girl has been traced. She has been produced before the court. The court has interacted with the girl, privately. The girl has expressed her firm desire to go back to her parents. The court has also spoken to the parents, who were in court", the order read. Accordingly, the plea was disposed of by expressing caution that the concerned police authorities must keep a vigil so that the same incident is not repeated.

Case Title: Dr. Kunal Saha v. West Bengal Medical Council (WBMC) and another

Case Citation: 2022 LiveLaw (Cal) 260

The Calcutta High Court ordered that the present West Bengal Medical Council will stand dissolved from July 31 on the ground that no elections for the constitution of a new Council has been held since 1988 and further directed that a newly duly-elected Medical Council should be constituted latest by October 31, 2022. Justice Sabyasachi Bhattacharyya observed, "Thus, this court expresses its reservations as to the palpable inaction on the part of the West Medical Council in not holding any elections and/or constituting a new Council since 1988." The Court further noted that the last elected body spent its five-year tenure long back, in the year 1988 and that in the last 34 years, which is almost seven times five, neither has any ad hoc body been appointed, nor any election held. "However, for obvious reasons, the present Council members took no steps worthy of exhibiting their bona fides for taking steps to organize elections after the year 1988 but chose to hibernate in the stupor of protracted perpetuation of their power", the Court underscored further.

Case Title: Abdul Khalek Laskar & Anr v. Union of India & Ors

Case Citation: 2022 LiveLaw (Cal) 261

The Calcutta High Court directed central agencies- Central Bureau of Investigation (CBI) and Enforcement Directorate (ED), as well as the State government to hand over the money recovered from the sale of assets pertaining to the Saradha group of companies to a one-man committee comprising of Justice S.P. Talukdar, former Judge of the High Court. The Court further directed SEBI to conduct sale of remaining properties of the company through its usual procedure pursuant to which a report was ordered to be furnished to the Committee. The defrauded depositors apprised a Bench comprising Justice I.P. Mukerji and Justice Subhendu Samanta that diverse authorities like C.B.I., E.D and State government etc. have in their possession some funds belonging to the company and thus prayed for the entire fund including the sale proceeds realized by SEBI to be handed over to the committee for the issuance of appropriate directions. Accordingly, the Court ordered, "Considering these submissions, we direct that the one-man committee headed by Mr. Justice S.P. Talukdar(retired), shall deal with the matter. All funds belonging to the company after deduction of all expenses and fees etc. shall be deposited by the above authorities with the one-man committee or in any bank according to its directions."

Important Developments

1. Calcutta High Court Stays FIR Registered By WB Police Against CBI Officers Probing Coal Scam

Case Title: In the matter of Central Bureau of Investigation represented by Anupam Mathur & Anr

The Calcutta High Court imposed an interim stay for 6 weeks on the FIR registered by State police authorities against CBI officers for allegedly harassing common people during the ongoing probe into the coal smuggling scam in the State. Pursuant to the order, the State police authorities will not be able to take any further steps in the FIR which names CBI officers including Umesh Kumar, who is leading the probe. The concerned FIR was filed at the Bishnupur police station under Diamond Harbour sub-division of South 24-Parganas. A resident of Diamond Harbour had filed a complaint at Bishnupur police station alleging that he, along with some other people, were threatened by CBI officers in the name of interrogation in connection with the coal and cattle smuggling cases. Issuing an interim stay, Justice Bibek Chaudhuri observed, "In the meantime, there shall be stay of further investigation into the offences punishable under Sections 34/ 120B/ 166/ 167/ 193/ 195/ 195A/ 196/ 465/ 467/ 468/ 471/ 506( ii) of the Indian Penal Code, 1860 in connection with Bishnupur Police Station Case No. 361/2022 dated 27.05.2022 for a period of six weeks."

2. 'Contrary To AG's Assurance': Calcutta High Court Issues Notice To WB DGP In Suvendu Adhikari's Contempt Plea Over Denial Of Entry Into Netai Village

Case Title: Suvendu Adhikari v. Sri Manoj Malaviya, IPS and others

The Calcutta High Court issued notice to the West Bengal's Director General of Police, Manoj Malviya and two other IPS officers in a contempt petition filed by BJP MLA Suvendu Adhikari for allegedly violating an earlier order by restricting Adhikari from going to Netai village in Jhargram district on January 7, 2022. Notice was also served on two other IPS officers namely former Jhargram district police superintendent, Biswajit Ghosh and the current Jhargram district additional police superintendent (headquarter), Kalyan Sarkar. "In fact, it is evident from the nature of the pleadings and the video footage as referred to above, that the alleged contemnors deliberately prevented the petitioner and blocked him, at a distance from Netai village, from going on to the said village", the Court opined further. The Court accordingly directed the contemnors to be personally present in Court on the next date of hearing which is slated to take place on July 28 at 10: 30 a.m.

Chhattisgarh High Court

1. Arbitral Award Vitiated By Serious Fraud And Criminal Conspiracy Can Be Set Aside In A Writ Petition: Chhattisgarh High Court

The High Court of Chhattisgarh has held that an arbitral award that is vitiated by fraud and criminal conspiracy would be void and non-est and can be set aside in a Writ Petition and the availability of an alternative remedy under Section 34 of the A&C Act is not a bar to the maintainability of the petition. The Division Bench of Chief Justice Anup Kumar Goswami and Justice Rajendra Chandra Samant further held that on a plain reading of Section 34 of the A&C Act, it is revealed that fraud and conspiracy are not the ground to challenge an arbitral award.

Delhi High Court

NOMINAL INDEX

Citations 2022 LiveLaw (Del) 594 TO 2022 LiveLaw (Del) 598

ASLAM SHER KHAN v. NARINDER DHRUV BATRA & ORS. 2022 LiveLaw (Del) 594

VOLTAS LIMITED v. ASHOK KUMAR & ORS. 2022 LiveLaw (Del) 595

SEHNAZ v. STATE 2022 LiveLaw (Del) 596

PANKAJ JAIN v. PARUL JAIN 2022 LiveLaw (Del) 597

Pink City Expressway Private Limited versus National Highways Authority of India & Anr. 2022 LiveLaw (Del) 598

1. 'Purity In Functioning Important': Delhi High Court Restrains Narinder Batra From Discharging Functions As President Of Indian Olympic Association

Case Title: ASLAM SHER KHAN v. NARINDER DHRUV BATRA & ORS.

Citation: 2022 LiveLaw (Del) 594

The Delhi High Court has restrained Narinder Dhruv Batra from discharging functions as President of Indian Olympic Association.

A vacation bench comprising of Justice Dinesh Kumar Sharma added that the Senior Vice President will take over the duties and responsibilities of the President and shall also perform any other tasks or functions as directed by the President, the Executive Council or the General Meeting.

"This Court considers that the functioning of Sports Federation should be above any kind of doubt. The purity in the functioning of such federations are much more important, than the individual who hold the positions," the Court observed.

2. Delhi High Court Orders Suspension Of Domain Name, Blocking Of Website 'My Voltas Care' In Trademark Infringement Suit By 'Voltas'

Case Title: VOLTAS LIMITED v. ASHOK KUMAR & ORS.

Citation: 2022 LiveLaw (Del) 595

The Delhi High Court has ordered suspension of the domain name as well as blocking access to the website www.myvoltascare.com in a trademark infringement suit filed by home appliance company- Voltas.

A vacation bench comprising of Justice Dinesh Kumar Sharma restrained owner of the website from using the registered and well-known trademark VOLTAS and its logo including the Website or listings on social media websites or e-commerce sites.

The Court was dealing with a suit filed by Voltas Limited seeking permanent injunction restraining one Ashok Kumar from infringing its registered trademark through the website www.myvoltascare.com.

3. "Every Day Of Freedom Matters": Delhi High Court Modifies Condition For Suspension Of Sentence To Personal Bond For Convict Unable To Furnish Surety

Case Title: SEHNAZ v. STATE

Citation: 2022 LiveLaw (Del) 596

Granting relief to a woman convict, the Delhi High Court recently modified a suspension of sentence condition for deposit of surety bond to deposit of a personal bond instead, on account of her being unable to furnish the surety.

Observing that every day of freedom matters, Justice Jasmeet Singh was of the view that the accused cannot be made to stay in jail for the reason that she could not furnish surety.

4. 'May Cause Mental Trauma': Delhi High Court Refuses To Interfere With Child's 9 Days' Custody To Mother For Foreign Travel

Case Title: PANKAJ JAIN v. PARUL JAIN

Citation: 2022 LiveLaw (Del) 597

The Delhi High Court has observed that in matters relating to custody of children, Court has to give paramount consideration to the welfare of the children.

A vacation bench comprising of Justice Dinesh Kumar Sharma was dealing with a plea challenging an order dated June 8, 2022 passed by the Family Court whereby the Court permitted the mother to take the child to Malaysia for a period of nine days.

The Family Court had added that the mother shall bring back the child to Delhi positively on July 3 for her to attend the school which would reopen after summer vacations. The had Court also directed both the mother and father to strictly adhere to the custody and visitation schedule in terms of its earlier judicial orders.

5. Power Under Section 9 Of The A&C Act Cannot Be Exercised For Directing Specific Performance Of The Contract: Reiterates Delhi High Court

Case Title: Pink City Expressway Private Limited versus National Highways Authority of India & Anr.

Citation: 2022 LiveLaw (Del) 598

The Delhi High Court has reiterated that power under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act) cannot be exercised for directing specific performance of the contract itself.

The Division Bench of Justices Jyoti Singh and Anoop Kumar Mendiratta held that a direction to the opposite party to extend the contract for a further period would amount to granting specific relief of the contract, which is beyond the scope of the powers of the Court under Section 9 of the A&C Act. The Court ruled that power under Section 9 can only be exercised for preservation of the subject matter of the dispute till the decision of the Arbitral Tribunal.

IMPORTANT WEEKLY UPDATES

1. Delhi High Court Issues Notice On Muslim Woman's Plea Challenging Constitutional Validity Of Talaq-E-Hasan

The Delhi High Court has recently issued notice on a plea challenging the practice of Talaq-e-Hasan as being unconstitutional and arbitrary as well as contrary to the United Nations Conventions of Human Civil Rights.

As per Talaq-E-Hasan, a Muslim man can divorce his wife by pronouncing "talaq" once a month for three months.

A vacation bench comprising of Justice Dinesh Kumar Sharma sought response of the Delhi Police as well as a muslim man whose wife has approached Court challenging the notice of Talaq-e-Hasan received by her.

2. Judicial Appointments Have Become Time Consuming, Dissuade Meritorious Lawyers' Consent For Elevation: Justice Vipin Sanghi Bids Farewell To Delhi HC

"The process of appointment over the years has become more time consuming and more uncertain. This has dissuaded many meritorious senior advocates and other advocates from giving their consent to be considered by the Collegium of High Court for recommending their names for judgeship," said Acting Chief Justice Vipin Sanghi in his farewell function organized by the Delhi High Court this week.

"In my humble view, this aspect needs to be urgently addressed if we wish to attract the best talent to the Bench," he added.

Justice Sanghi, who has now been transferred as Chief Justice of Uttarakhand High Court, was appointed as Additional Judge of the High Court of Delhi with effect from May 29, 2006 and was confirmed as a Judge on 11th February, 2008.

After having served as a Judge of Delhi High Court for over 16 years, Justice Sanghi today bid farewell with an appeal to the judges of lower as well as higher judiciary of Delhi, to give their best to achieve the objective of justice dispensation with honesty, integrity and independence.

3. Justice Satish Chandra Sharma Takes Oath As Chief Justice Of Delhi High Court

Justice Satish Chandra Sharma this week took oath as the new Chief Justice of the Delhi High Court.

Lieutenant Governor Vinai Kumar Saxena administered the oath to Justice Sharma at Raj Niwas, which is the secretariat of LG.

Justice Sharma was previously serving as the Chief Justice of the Telangana High Court. His transfer was notified by the Central Government on June 19, 2022.

4. Delhi High Court Orders Status Quo On DDA's Demolition Action Against Jhuggis In Nizamuddin's Gyaspur Area

The Delhi High Court has ordered status quo on the Delhi Development Authority's proposal to demolish jhuggi clusters in city's Gyaspur area in Hazrat Nizamuddin. A vacation bench of Justice Neena Bansal Krishna granted the interim relief in a plea moved by the residents.

"Considering the long possession of the parties and their assertions that it is a Jhuggi cluster having more than 32 jhuggis, the respondents are directed to maintain status quo till 11th July, 2022", the bench ordered.

The Court ordered status quo till July 11, the next date of hearing.

5. High Court Issues Notice To Delhi Police On Mohammed Zubair's Plea Challenging Custody

The Delhi High Court this week issued notice on the plea filed by Alt News Co-Founder Mohammed Zubair challenging his four days police custody remand granted by a Trial Court here. He was arrested earlier this week by the Delhi Police for allegedly hurting religious sentiments and promoting enmity over a tweet made in 2018.

Justice Sanjeev Narula observed that the remand order was for a period of four days, ending tomorrow, and that he will be produced before the concerned court on July 2. During the hearing, the Judge orally remarked that the matter has a very limited "shelf life" since the remand will end on Saturday.

Gauhati High Court

1. Gauhati High Court Directs Excise Department To Hear Objections Of Local Public As Per Assam Excise Rules Before Setting Up Liquor Shop

Case Title : RAJIB RABHA v THE STATE OF ASSAM AND 3 ORS

Citation: 2022 LiveLaw (Gau) 45

The Gauhati High Court has directed the Excise Department to dispose the representation filed by a large number of public organisations of a locality in Damara against opening of a liquor shop in their locality, as per Rule 289, Rule 294 and Rule 295 of the Assam Excise Rules, 2016 and after affording opportunities of hearing to the local public, as Rules envisage.

The Petitioner is the President of Damra Anchalik Rabha Students Union and an inhabitant of the locality. After learning that the Excise Department have allowed a co-Respondent to open an Indian Made Foreign Liquor (IMFL) shop in the locality of the village, many residents and a number of local organisations held a public meeting at the office of the Students Union where many expressed their apprehension of breach in the locality on account of the presence of an IMFL shop

2. Gauhati HC Quashes No-Confidence Resolution Against Gram Panchayat President Citing Participation Of Member Disqualified For Having 3 Children

Case Title : Jugitawali Pawe v State of Assam and 15 ors.

Citation: 2022 LiveLaw (Gau) 46

The Gauhati High Court has quashed a resolution expressing no-confidence in the petitioner - the President of a Gram Panchayat, as a result of which she as removed from office, citing non-compliance with Assam Panchayat Act, 1994 read with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995. The petitioner referred to the materials available on record to argue that one of the respondents, a member of the Gaon Panchayat, who voted against the petitioner, had given birth to her third child the previous year. Therefore, by virtue of Section 111(2)(a) of the Act read with Rule 62 of the Rules, she stood automatically disqualified on the date of voting. Despite this, her vote was taken into account while passing the no-confidence resolution.

Gujarat High Court

NOMINAL INDEX

State Of Gujarat v. Nimeshbhai Vitthalbhai Gandhi 2022 LiveLaw (Guj) 243

Heir Of Niruben Chimanbhai Patel V/S State Of Gujarat 2022 LiveLaw (Guj) 244

State Of Gujarat - Thro' B.M Patel, Food Inspector V/S Naushadali Najarali Dhanani C/O Didar Traders & 1 Other(S) 2022 LiveLaw (Guj) 245

Rajnikant Punjalal Shah Karta Of Rajnikant Punjalal Shah V/S Manager, Bank Of Baroda 2022 LiveLaw (Guj) 246

Jayantibhai Bahecharbhai Patel V/S State Of Gujarat 2022 LiveLaw (Guj) 247

Ena W/O Ashish Jain Versus State Of Gujarat 2022 LiveLaw (Guj) 248

Shree Hindvani Aanjna Patel Kelavni Mandal Versus State Of Gujarat & 3 Other(S) 2022 LiveLaw (Guj) 249

Shashikant Shamaldas Patel V/S State Of Gujarat 2022 LiveLaw (Guj) 250

Nipun Praveen Singhvi V/S Union Of India 2022 LiveLaw (Guj) 251

Khanji Mohammad Saiyed Gulamrasool V/S Additional District Magistrate 2022 LiveLaw (Guj) 252

Narubhai Amarsinh Makwana(Koli Patel) V/S State Of Gujarat 2022 LiveLaw (Guj) 253

Chief Officer v/s Decd. Shree Solanki Kanubhai Danabhai through Legal Heirs Manjulaben w/o Kanubhai Solanki 2022 LiveLaw (Guj) 254

ORDERS/JUDGMENTS OF THE WEEK

Bottles For Sample Collection Not Cleaned On Spot: Gujarat High Court Upholds Acquittal For Alleged Offences Under Food Adulteration Act

Case Title: State Of Gujarat v. Nimeshbhai Vitthalbhai Gandhi

Citation: 2022 LiveLaw (Guj) 243

The High Court upheld the acquittal of a general store owner, who was booked under the Prevention of Food Adulteration Act, after noticing that the mandatory provisions relating to cleanliness of bottles in which the samples were collected, were not followed.

Justice Ashokkumar Joshi observed that the Food Safety Officer himself admitted that the captioned bottles were not clean at the place of collecting the sample. He had also admitted that the covers of the bottles were not cleaned at the time. It said,

"This Court is of the view that though the complainant had explained all the formalities for collecting the samples but, so longer as the mandatory provisions are concerned for cleanliness of bottles and also cleanliness of the cover is concerned, same is not proved. On the contrary admitted that the same is not cleaned and therefore...this Court is of the opinion that (trial) Court has given cogent and convincing reasons for acquitting the respondent, which learned APP has failed to dislodge them."

Hindu Succession Act | Children Born From A Widow's First Marriage Can Inherit Property From Her Second Husband: Gujarat High Court

Case Title: Heir Of Niruben Chimanbhai Patel V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 244

The High Court held that under Section 15 of the Hindu Succession Act, when a widow dies intestate, her heirs including son and daughter out of wedlock or even from illicit relationships are entitled to the share in her property.

Justice AP Thaker further held that since the deceased widow in the instant case was one of the owners of the suit property, she had every right to give her undivided share to anyone vide her Will, particularly, when the Will had not been challenged by anyone before the High Court.

"It is worthwhile to refer to Hindu Succession Act, wherein under Section 15, a Hindu widow can inherit land from his second husband and even her children born out of first marriage can also inherit land from second husband."

S.19(2) Food Adulteration Act | Vendor Not Liable For Articles Purchased From Manufacturer With Written Warranty: Gujarat High Court

Case Title: State Of Gujarat - Thro' B.M Patel, Food Inspector V/S Naushadali Najarali Dhanani C/O Didar Traders & 1 Other(S)

Citation: 2022 LiveLaw (Guj) 245

Referring Section 19(2) of the Food Adulteration Act, the High Court explained that a Vendor shall not be deemed to have committed any offence under the Act, if he has purchased the food article in question from a manufacturer, distributor or dealer with written warranty.

Keeping in view the provision, the High Court refused to interfere with the order of Judicial Magistrate, acquitting the vendor and owner of one Didar Traders.

Bank Can't Attach Customer's PPF Account For Settlement Of His Debt/ Liability: Gujarat High Court

Case Title: Rajnikant Punjalal Shah Karta Of Rajnikant Punjalal Shah V/S Manager, Bank Of Baroda

Citation: 2022 LiveLaw (Guj) 246

The High Court reiterated the settled proposition of law that the amount of Public Provident Fund account shall not be liable to any attachment in respect of any debt or liability incurred by the account holder.

The Bench comprising Justice AS Supehia was hearing the case of a Petitioner who had invested Hindu Undivided Family's money under Centre's Public Provident Fund Scheme with the Respondent-Bank of Baroda.

Increment Earned For Past Period Can't Be Denied Merely Because Employee Had Retired When It Became Payable: Gujarat High Court

Case Title: Jayantibhai Bahecharbhai Patel V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 247

Finding itself in agreement with other High Courts across the country, the High Court held that the increment earned by an employee (government servant) for the past period of service cannot be denied merely because the said employee had retired when the increment became payable.

Justice Biren Vaishnav concurred with the Delhi High Court that when increment was earned for past period, its denial on the ground that on the date when the increment became payable the government servant was not holding the post as he had retired, was not valid.

Surrogacy Regulation Act, 2021 Does Not Contemplate Retention Of Newly Born Child's Custody By Surrogate Mother For Breastfeeding: Gujarat High Court

Case Title : Ena W/O Ashish Jain Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 248

The High Court has held that the Surrogacy Regulation Act, 2021 does not envisage any provision that would require the custody of a new-born child to be retained by the surrogate mother for a particular period of time, for the purpose of breastfeeding.

A division bench of Justice Vipul M. Pancholi and Justice Sandeep N. Bhatt held that the court must interpret the law as it stands and not on considerations of perceived morality. Thus, a new-born child could be handed over to the intended parents even without a court order, in lieu of the provisions of the Surrogacy Regulation Act, 2021 and the surrogacy agreement signed between the parties.

Competent Authority Can't Act Beyond Show Cause Notice: Gujarat High Court Cancels Forfeiture Of Land Allotted To Trust For Developing Playground

Case No.: Shree Hindvani Aanjna Patel Kelavni Mandal Versus State Of Gujarat & 3 Other(S)

Citation: 2022 LiveLaw (Guj) 249

The High Court quashed the order passed by the Collector, Banaskantha which forfeited the allotment of land to a Public Trust for the purpose of developing a playground for school children. The High Court also directed the Respondent authority to decide the application for renewal of lease submitted by the Petitioner-Trust within 8 weeks.

The development ensued after the Court noted that the competent government authority had passed the order for forfeiture, beyond the show cause notice that was issued to the Petitioner.

S.138 NI Act | Gujarat High Court Sends Disputed Cheque To Handwriting Expert 'In Larger Interest Of Fair Trial'

Case Title: Shashikant Shamaldas Patel V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 250

In a petition involving alleged misuse of cheque, the Gujarat High Court has directed to send the disputed cheque to the Forensics Laboratory for the opinion of the Handwriting Expert to ensure the 'larger object of fair trial.'

The Petitioner, an accused, for offence under Section 138 of the Negotiable Instruments Act, 1881 had challenged the order of the trial court and Sessions Judge which rejected his plea for forensic examination of the cheque. The Petitioner made the prayer for sending the cheque for examination by the Handwriting Expert to determine the ageing and the writing on the cheque.

'Right To Speedy Justice Enshrined Under Article 21': Gujarat High Court Directs Expeditious Appointment Of Presiding Officer At DRT Ahmedabad

Case Title: Nipun Praveen Singhvi V/S Union Of India

Citation: 2022 LiveLaw (Guj) 251

Affirming that the right to speedy justice is enshrined under Article 21 of the Constitution, the High Court has issued a writ of mandamus directing expeditious appointment of the Presiding Officer in the Debt Recovery Tribunal-I at Ahmedabad.

The Bench comprising Chief Justice Aravind Kumar and Justice Ashutosh Shastri allowed the petition filed by an Advocate enrolled in the Gujarat Bar Council and practising before various courts.

Absence Of Threat To Applicant No Ground To Refuse Firearm License Under Arms Act: Gujarat High Court

Case Title.: Khanji Mohammad Saiyed Gulamrasool V/S Additional District Magistrate

Citation: 2022 LiveLaw (Guj) 252

The Gujarat High Court has recently held that reasons for refusal of a firearm license under the Arms Act should have a nexus and should be in context with the provisions of the Act and that the license cannot be revoked on irrelevant considerations.

The Bench of Justice AS Supehia further observed that the authority could not have revoked the Applicant's license merely because he had not received any threats or there was no incident of assault on him.

"The revocation of the license on the two grounds as mentioned hereinabove, is absolutely illegal and de hors the provisions of Section 17(3) of the Act," it observed.

Witness Saw Accused Near Deceased, Blood Stained Weapon Recovered: Gujarat High Court Accepts Circumstantial Evidence To Affirm Murder Conviction

Case Title: Narubhai Amarsinh Makwana(Koli Patel) V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 253

The High Court recently affirmed the conviction of a man under Section 302 IPC for Murder, while observing that the chain of circumstantial evidence was completed by the prosecution with cogent evidence, to bring home his guilt.

The Bench comprising Justices Vipul Pancholi and Rajendra Sareen heavily relied on the statement made by a prosecution witness who saw the accused near the cot of the deceased with a weapon as also the recovery of a blood stained Dharia from the accused.

Municipalities Empowered In Law To Retire Employees At Age Of 55 Yrs By Giving Three Months' Notice: Gujarat High Court

Case Title: chief officer v/s decd. Shree solanki kanubhai danabhai through legal heirs manjulaben w/o kanubhai solanki

Citation: 2022 LiveLaw (Guj) 254

The High Court has upheld the power of municipalities under the Gujarat Municipalities Act and the Rules framed thereunder to retire a municipal servant at any time on or after he attains the age of 55 years on giving him three months notice.

A bench of Justice Biren Vaishnav observed,

"It was within the powers of the municipality in exercise of powers under Sec.271 to frame rules. Proviso to Rule 5 indicates that the action can be taken by a municipality against an employee where employee reaches the age of superannuation. This, of course, is subject to he being given three months notice and notice pay in lieu thereof."

Jammu & Kashmir & Ladakh High Court

1. Judges Hold High Public Office Of Trust, Must Act With Higher Standard Of Integrity: J&K&L High Court Upholds Munsiff's Dismissal For Misconduct

2. High Court Has Absolute & Exclusive Disciplinary Control Over District Judiciary Under Article 235 : J&K&L High Court

Case Title: Javid Ahmad Naik v State of J&K and ors

Citation: 2022 LiveLaw (JKL) 48

The Jammu and Kashmir and Ladakh High Court recently held that control over the District Judiciary vested in the High Court in Article 235 of the Constitution of India is complete and absolute and provided only to ensure the independence of the judiciary and to achieve effective separation of powers.

3. J&K&L High Court Grants ₹5 Lakh Compensation To Reserved Category Candidate Denied Seat In NEET MDS 2021, Asks BOPEE To Keep One Seat In Next Session

Case Title : Bhat Ab. Urban Bin I Aftaf & Ors. V UT of Jammu and Kashmir and others

Citation: 2022 LiveLaw (JKL) 49
The Jammu and Kashmir and Ladakh High Court has ordered the Board of Professional Entrance Examination to grant Rs. 5 lakh compensation to a medical aspirant, who was denied a seat in NEET-MDS 2021, despite being eligible under the CDP/JKPM (Children of Defence Personal/ Military Forces) category. Justice Sanjeev Kumar further directed BOPEE to keep one seat of MDS in the next session (2022) for the petitioner, without making it part of selection or admission.

4. Waiting List Can't Be Used As 'Reservoir' To Fill Posts Falling Vacant Due To Resignation Of Selected Candidate: Jammu & Kashmir High Court

Case Title : State of JK & Anr. V Danish Zia Bhat & Ors.

Citation: 2022 LiveLaw (JKL) 50

The Jammu and Kashmir and Ladakh High Court on Monday reiterated that no candidate from the waiting list shall be appointed on any vacancy which is caused due to resignation of a selected candidate after joining against the said post.

5. Govt Can't Supersede Statutory Rules By Administrative Orders, May Fill Gaps With Consistent Instructions: Jammu & Kashmir High Court

Case Title: Arshid Ahmad Lone v. State of J&K & Ors.
Citation: 2022 LiveLaw (JKL) 51
The Jammu and Kashmir High Court recently reiterated that a Government cannot amend or supersede statutory rules by administrative orders. It added that where the rules are silent on any particular point, the Government can fill up the gaps and supplement the Rules and issue instructions not inconsistent with the Rules already framed.

6. "Right To Property Is Basic Human Right": J&K&L High Court Imposes ₹10 Lakh Penalty On Govt. For "Forcibly" Taking Over Private Land

The Jammu and Kashmir and Ladakh High Court has imposed a cost of Rs. 10 lakh on the UT administration for forcibly taking over a private land, without following due procedure of law. A division bench comprising of Chief Justice Pankaj Mithal and Justice Javid Iqbal Wani observed,

"It is well recognized that Right to Property is a basic human right which is akin to a fundamental right as guaranteed by Article 300 A of the Constitution of India and that no one can be deprived of his property other than by following procedure prescribe in law."

7. Non-Filing Of Application U/S 8 Arbitration Act Before Civil Court Does Not Debar Party From Seeking Appointment Of Arbitrator: J&K&L High Court

Case Title : Anita Mehta v Gulkand Hues Private Ltd., & another

Citation : 2022 LiveLaw (JK) 53
The Jammu and Kashmir and Ladakh High Court on Tuesday reiterated that non-filing of an application under Section 8 of the Arbitration and Conciliation Act would not mean that the petitioner has surrendered to the jurisdiction of the court and left the right to get the disputes resolved through arbitration so as to debar the petitioner for seeking appointment of an arbitrator through the intervention of the Court.

8. The Jammu and Kashmir and Ladakh High Court today directed the UT administration to allow the family of Amir Magrey, the fourth person killed in Hyderpora Encounter, to perform Fatiha Khawani (religious rituals/prayers after burial) at his grave.

Case Title: Union Territory of J&K and others Versus Mohammad Latief Magrey and another

Citation : 2022 LiveLaw (JK) 54

The Jammu and Kashmir and Ladakh High Court today directed the UT administration to allow the family of Amir Magrey, the fourth person killed in Hyderpora Encounter, to perform Fatiha Khawani (religious rituals/prayers after burial) at his grave. The division bench comprising Chief Justice Pankaj Mithal and Justice Javed Iqbal Wani also upheld the the single bench direction to the extent of paying a compensation of Rs.5.00 Lakhs to the family. It observed that the government prima facie acted unfairly inasmuch as notwithstanding the allegation that Amir was a terrorist, even if it may be assumed, as such, that he relinquished his right to be buried after performance of last rites performed by his family members in accordance with the faith professed by him, yet "the said right of burial and performance of last religious rituals of deceased available to the family members could not have been denied."

Jharkhand High Court

1. Application For Appointment Of Arbitrator Filed After Many Years : Jharkhand High Court Dismisses The Applicatio

Case Title: Jharia Petrol Supply versus Indian Oil Corporation Limited

Citation : 2022 LiveLaw (Jha) 62

The Jharkhand High Court has ruled that if the application for appointment of Arbitrator under Section 11(6)(c) of the Arbitration and Conciliation Act, 1996 (A&C Act) is itself not maintainable on the ground of inordinate delay in filing it, the issue of limitation cannot be referred to the Arbitrator for adjudication.

The Single Bench of Justice Sujit Narayan Prasad held that, in view of the decision of the Supreme Court in the case of Bharat Sanchar Nigam Limited and Another versus Nortel Networks India Private Limited (2021), the issue of limitation is required to be answered at the threshold itself, i.e., at the stage where the application filed under Section 11(6)(c) of the A&C Act is considered by the Court.

Karnataka High Court

Nominal Index:

NELSON RAJ v. THE STATE OF KARNATAKA. 2022 LiveLaw 229

Kavitha v. State of Karnataka. 2022 LiveLaw (Kar) 230

Mrs Leena Rakesh v Bureau of Immigration Ministry of Home Affairs. 2022 LiveLaw (Kar) 231

YUSUB S/O MOHAMUSAB SANADI v THE STATE OF KARNATAKA. 2022 LiveLaw (Kar) 232

SUPRIT ISHWAR DIVATE v. THE STATE OF KARNATAKA. 2022 LiveLaw (Kar) 233

M.AJITHKUMAR v THE STATE BY FOOD INSPECTOR, KOPPA. 2022 LiveLaw (Kar) 234

XXX v. STATE OF KARNATAKA. 2022 LiveLaw (Kar) 235

SHIVANAND LAXMAN ANCHI v. THE STATE OF KARNATAKA. 2022 LiveLaw (Kar) 236K

LAKSHMAIAH REDDY v. V ANIL REDDY & others. 2022 LiveLaw (Kar) 237

DADA S/O BALU ROOGE v. APPASAHEB S/O KIRAN KESTE. 2022 LiveLaw (Kar) 238

Sudarshan Ramesh v. Union Of India. 2022 LiveLaw (Kar) 239

THE UNIVERSITY OF AGRICULTURAL SCIENCES v. DR. DIGAMBARAPPA, & others. 2022 LiveLaw (Kar) 240

Sadik Khan @Sadik v State of Karnataka. 2022 LiveLaw (Kar) 241

Judgments/Reports

1. Courts Duty Bound To Consider All Contentions Raised By Parties While Deciding Bail Applications: Karnataka High Court

Case Title: NELSON RAJ v. THE STATE OF KARNATAKA

Case No: CRIMINAL APPEAL NO.336 OF 2022 C/W CRIMINAL APPEAL NO.267 OF 2022 & CRIMINAL APPEAL NO.337 OF 2022.

Citation: 2022 LiveLaw 229

The Karnataka High Court has said that courts are bound to take into consideration all the contentions raised by the parties while hearing a bail petition filed before it and then pass an appropriate order.

2. Karnataka High Court Acquits Woman Accused Of Murdering Her Two Months Old Child By Throwing In River

Case Title: Kavitha v. State of Karnataka

Case No: CRIMINAL APPEAL No.1372 OF 2017

Citation: 2022 LiveLaw (Kar) 230

The Karnataka High Court recently set aside the conviction and sentence of life imprisonment imposed on a woman for allegedly causing the death of her two months old girl-child, who was suffering from epilepsy and some respiratory problems, by throwing her into a river.

3. Bank Can't Seek Issuance Of 'Look Out Circular' For Recovery Of Dues Unless Economic Interest Of Country Is Involved: Karnataka High Court

Case Title: Mrs Leena Rakesh v Bureau of Immigration Ministry of Home Affairs.

Case No: WP 11213/2022

Citation: 2022 LiveLaw (Kar) 231

The Karnataka High Court has said the request for issuance of a Look out Circular (LOC) or preventing a person (defaulter of loan) from travelling abroad cannot be a mode of recovery of dues by a bank, unless there is an element of fraud and economic interest of the country is involved.

4. Karnataka High Court Orders ₹10 Lakh Compensation For Death Of 2-Yr-Old In Stray Dog Attack

Case Title: YUSUB S/O MOHAMUSAB SANADI v THE STATE OF KARNATAKA

Case No: WRIT PETITION NO. 110352 OF 2019

Citation: 2022 LiveLaw (Kar) 232

The Karnataka High Court has held that there is a statutory obligation which has been imposed upon the local municipal authorities to safeguard the human beings cohabitating within their jurisdiction, from the danger of any stray dogs and/or any attack by such stray dogs.

5. Reasons For Handcuffing Accused Must Be Recorded In Case Diary: Karnataka High Court Awards 2 Lakh Compensation To Law Student

Case Title: SUPRIT ISHWAR DIVATE v. THE STATE OF KARNATAKA

Case No: WRIT PETITION NO. 115362 OF 2019

Citation: 2022 LiveLaw (Kar) 233

The Karnataka High Court has held that an accused who is arrested can normally not be handcuffed. It is only under "extreme circumstances", for instance where there is possibility of the accused/ under trial prisoner escaping custody or causing harm to himself or causing harm to others, that handcuffing of an accused can be resorted to.

6. Accused Can't Be Convicted For Charge Which Is Not Framed By Trial Court: Karnataka High Court

Case Title: M.AJITHKUMAR v THE STATE BY FOOD INSPECTOR, KOPPA

Case No: CRIMINAL REVISION PETITION NO.1527/2016

Citation: 2022 LiveLaw (Kar) 234

The Karnataka High Court has set aside the conviction handed down under the Prevention of Food Adulteration Act by the trial court for a charge which it did not frame against the accused, and remanded the matter back to be considered afresh.

7. Karnataka High Court Dismisses Habeas Corpus Plea Moved By Transgender Person After Alleged Partner Denies Relationship

Case Title: XXX v. STATE OF KARNATAKA

Case No: WRIT PETITION HABEAS CORPUS No.57 OF 2022

Citation: 2022 LiveLaw (Kar) 235

The Karnataka High Court has dismissed a habeas corpus petition filed by a transgender person, seeking directions to the police to produce an 18-year old girl, alleged to be his partner.

8. Karnataka High Court Upholds Compulsory Retirement Of Civil Judge For Preparing Order Sheets Of Proceedings That Did Not Even Take Place

Case Title: SHIVANAND LAXMAN ANCHI v. THE STATE OF KARNATAKA

Case No: WRIT PETITION No.16983 OF 2021

Citation: 2022 LiveLaw (Kar) 236

The Karnataka High Court has dismissed a petition filed by a former Civil Judge, Junior Division questioning the order dated March 22, 2021 passed by the state government ordering compulsory retirement from service.

9. Counsel Entitled To Physically Accompany Party To Remote Point While Giving Evidence Via Video Conferencing:Karnataka High Court

Case Title: K LAKSHMAIAH REDDY v. V ANIL REDDY & others

Case No: WRIT PETITION NO.10926 OF 2022

Citation: 2022 LiveLaw (Kar) 237

The Karnataka High Court has held that a counsel/advocate appearing for the parties are entitled to be physically present at the remote point from where the evidence of such party is being recorded through video conferencing.

10. Execution Court Can Issue Delivery Warrant For Decreed Suit Property Even If Possession Not Sought In Suit For Specific Performance: Karnataka High Court

Case Title: DADA S/O BALU ROOGE v. APPASAHEB S/O KIRAN KESTE

Case No: WRIT PETITION NO. 102158 OF 2021

Citation: 2022 LiveLaw (Kar) 238

The Karnataka High Court has held that even if the plaintiff has not sought a relief of possession in a suit for specific performance, but had only sought the prayer for execution of the sale deed, the Execution Court can issue a delivery warrant directing the Judgment debtor to handover possession of the property, upon decree holder performing all obligations as stated in decree.

11. Bitcoin Scam: Karnataka High Court Refuses To Quash LOC Against Brother Of Accused Sirkrishna

Case Tile: Sudarshan Ramesh v. Union Of India

Case No: WP 1730/2022

Citation: 2022 LiveLaw (Kar) 239

The Karnataka High Court has rejected a petition filed by Sudarshan Ramesh, brother of bitcoin scam accused Sirkrishna, questioning the action of Central authorities in restraining him from leaving India and travelling to the Netherlands.

12. Ad Hoc Appointments Can Be Made On Rotational Basis, Seniority Not A Criteria: Karnataka High Court

Case Title: THE UNIVERSITY OF AGRICULTURAL SCIENCES v. DR. DIGAMBARAPPA, & others

Case No: WRIT APPEAL NO.100263 OF 2022 C/W WRIT APPEAL NO.100264 OF 2022

Citation: 2022 LiveLaw (Kar) 240

The Karnataka High Court has set aside an order of the Single Judge bench which held that appointments to the post of Director of University of Agricultural Sciences, on ad-hoc basis, shall be done on seniority basis.

13. Life Is Important To All, Persons Committing Brutal Murder Of One Cannot Now Seek Bail To Save Their Father's Life: Karnataka High Court

Case Title: Sadik Khan @Sadik v State of Karnataka

Case No: Criminal Petition 4834/2022

Citation: 2022 LiveLaw (Kar) 241

"When petitioners have committed brutal murder of one person they cannot seek bail to save life of another person i.e. their father," the Karnataka High Court observed while denying bail to two murder accused.

Other reports

1. Karnataka High Court Stays Case Against Congress Leaders Over Mekedatu Padyatra Amid Covid Restrictions

Case Title: D K SHIVAKUMAR & Others v. STATE OF KARNATAKA

Case No: CRL.P 5726/2022

The Karnataka High Court on Tuesday stayed further proceedings till the next date of hearing, in a case registered under the Karnataka Epidemic Diseases Act, 2020 and other sections of the Indian Penal Code, against President of Karnataka Pradesh Congress Committee, DK Shivakumar, Leader of Opposition in the State, Siddaramaiah and other members, for carrying out a padyatra in January, demanding implementation of Mekedatu project, when allegedly Covid-19 restrictions were in force.

2. Karnataka High Court Asks State About Steps Taken To Prevent Illegal Slaughtering Of Animals

Case Title: GAU GYAN FOUNDATION v THE STATE OF KARNATAKA

Case No: WP 5624/2022

The Karnataka High Court on Tuesday issued notice to the state government and other respondents, seeking their response about the steps taken pursuant to its order dated December 1, 2021 for prevention of illegal slaughtering of animals in the state.

Kerala High Court

Nominal Index [Citations 2022 LiveLaw (Ker) 304-319]

Rev. T.G. Johnson v. State of Kerala & Ors, 2022 LiveLaw (Ker) 304

Anu Mathew v. State of Kerala, 2022 LiveLaw (Ker) 305

Zerita Ashlen Rocha & Anr v. Ann Mary Varghese, 2022 LiveLaw (Ker) 306

Amir & Anr v. State of Kerala, 2022 LiveLaw (Ker) 307

Gopika Jayan & Anr v. Faisal M.A, 2022 LiveLaw (Ker) 308

Suo Motu v. The Managing Committee & Ors, 2022 LiveLaw (Ker) 309

K.B. Rasheed v. State of Kerala, 2022 LiveLaw (Ker) 310

X v. State, 2022 LiveLaw (Ker) 311

Jose Kuruvinakkunnel v. Union of India & Ors, 2022 LiveLaw (Ker) 312

Jayachandran v. State of Kerala & Ors, 2022 LiveLaw (Ker) 313

Bharat Petroleum Corporation & Anr v. Saju A.R & Ors, 2022 LiveLaw (Ker) 314

Southern Railway v. M/s Cherian Varkey Construction Co. Pvt Ltd, 2022 LiveLaw (Ker) 315

Abdul Jaleel v. Cabinet Principal Secretary & Ors, 2022 LiveLaw (Ker) 316

R. Baji v. Kerala State Road Transport Corporation Ltd, 2022 LiveLaw (Ker) 317

Saritha S. Nair v. Union of India & Anr, 2022 LiveLaw (Ker) 318

K.V Shiraz v. Binny Emmatty, 2022 LiveLaw (Ker) 319

Judgments/Orders This Week:

Kerala Education Rules | Only State-Authorised Officer Empowered To Extend Higher Secondary School Teachers' Suspension Beyond 15 Days: High Court

Case Title: Rev. T.G. Johnson v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 304

The High Court recently observed that according to the proviso to Rule 67(7) of Chapter XIVA of Kerala Education Rules (KER), sanction to extend the period of suspension of a teacher in Higher Secondary School can only be granted by the officer authorised by the Government, and not by the Director of General Education (DGE). Justice Bechu Kurian Thomas added that though the power of suspension is only with the school Manager and for the first 15 days the said power is absolute, the subsequent power to extend the period of suspension is a regulated power.

Can Anticipatory Bail Plea Of Accused Who Went Abroad After Registration of Crime Be Entertained? Kerala HC Doubts "Vijay Babu" Judgment

Case Title: Anu Mathew v. State of Kerala

Citation: 2022 LiveLaw (Ker) 305

Justice P.V Kunhikrishnan differed from the law laid down by the High Court's coordinate bench last week wherein it was held that Section 438 of the Code of Criminal Procedure has no restrictive mandate that a person outside India cannot file an application seeking anticipatory bail. While granting anticipatory bail to actor-producer Vijay Babu in a rape case, Justice Bechu Kurian Thomas had held that a person who is outside India can very well file an anticipatory bail application, as long as before the final hearing, the accused is in India.

Courts Should Make Every Endeavour To Dispose A Case On Merits Rather Than On Default: Kerala High Court

Case Title: Zerita Ashlen Rocha & Anr v. Ann Mary Varghese

Citation: 2022 LiveLaw (Ker) 306

The High Court has ruled that courts should attempt to dispose of matters on merit rather than on default and avoid utilising a hypertechnical approach when presented with a case. Justice C.S Dias held so after observing that a trial court had overlooked the timely submission of a written statement in a money suit merely because it contained certain formal defects.

Trial Courts Should Pass Speaking Orders In Main Case & Counter-Case, Refrain From Dismissing Counter Cases On Flimsy Grounds: Kerala High Court

Case Title: Amir & Anr v. State of Kerala

Citation: 2022 LiveLaw (Ker) 307

The High Court has laid down the procedure to be adopted when there is a case and a counter case and the trial court is of the opinion that the counter case is to be discharged. Justice P.V Kunhikrishnan opined that trial courts should refrain from taking shortcuts by dismissing the counter-case on flimsy grounds through non-speaking orders.

Arrest In Breach Of "Arnesh Kumar" Guidelines : Kerala High Court Seeks Explanation From Judicial Magistrate For Remanding Accused

Case Title: Gopika Jayan & Anr v. Faisal M.A

Citation: 2022 LiveLaw (Ker) 308

The Court recently sought an explanation from a Judicial Magistrate for remanding an accused without satisfying if the arrest has been carried out in compliance with the principles laid down by the Supreme Court in Arnesh Kumar v State of Bihar. A Division Bench of Justice Alexander Thomas and Justice Shoba Annamma Eapen also issued a contempt notice to the Police Officer who carried out the arrest while condemning the lack of response from his side in the proceedings.

Right To Worship Is A Civil Right Subject To Restrictions Imposed By Temple's Managing Committee: Kerala High Court

Case Title: Suo Motu v. The Managing Committee & Ors.

Citation: 2022 LiveLaw (Ker) 309

The High Court recently directed the Guruvayur Devaswom Managing Committee to ensure that any entry restrictions imposed into the Nalambalam of Guruvayur Sree Krishna Temple are strictly complied with and are not flouted by any individual, including its members, Administrators or former officers. The Division Bench of Justice Anil K. Narendran and Justice P.G Ajithkumar also ruled that a worshipper was bound to exercise their right to worship subject to the traditions and restrictions in place.

Non-Compliance With S.279, 281 CrPC Only An Irregularity But That Is Not Permission To Violate It: Kerala High Court

Case Title: K.B. Rasheed v. State of Kerala

Citation: 2022 LiveLaw (Ker) 310

The High Court has ruled that failure to interpret evidence against the accused in the language they are familiar with, as mandated under Sections 279 and 281 of CrPC, may be a mere irregularity, but the prosecution is not allowed to violate these provisions. Justice PG Ajithkumar observed so in the light of precedents which establish that non-compliance with Sections 279(1), 279(2) or 281(4) is a mere irregularity, and that unless prejudice is caused to the accused, that irregularity will not vitiate the trial altogether.

Young Minds Develop Negative Notions Of Justice Delivery System: Kerala HC Suggests Introducing Child-Friendly Rooms In Family Courts

Citation: 2022 LiveLaw (Ker) 311

The Kerala High Court has suggested introducing child-friendly rooms in all Family Courts in the State after finding that they were operating with inadequate infrastructure and facilities. The Court thereby directed the Registrar of the District Judiciary to submit a report on the number of POCSO Courts functioning in the near vicinity of all Family Courts and to explore the possibility of dedicating a separate room in all the Family Courts. A Division Bench of Justice A Muhamed Mustaque and Justice C.S Dias observed that the congested and overcrowded premises often scar young children who are forced to visit the courts with an averse idea of the justice delivery system in the country.

Kerala High Court Asks Censor Board To Decide Objection Filed Against Prithviraj-Starrer 'Kaduva'

Case Title: Jose Kuruvinakkunnel v. Union of India & Ors.

Citation: 2022 LiveLaw (Ker) 312

The High Court asked the Central Board of Film Certification to take a decision on the objection filed before it challenging the proposed theatre release of Prithviraj-starrer Malayalam movie 'Kaduva'. Justice V.G Arun also asked the authority to take an independent decision on the same after personally hearing the parties, dehors the findings of the civil court on the release of the movie.

Potential Cabinet Papers Yet To Be Brought Before Council Of Ministers Exempted From Disclosure Under RTI Act: Kerala High Court

Case Title: Jayachandran v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 313

The High Court has ruled that potential cabinet papers which have not yet been brought before the Council of Ministers are exempted from disclosure under the Right to Information Act. Section 8(1)(i) of the RTI Act exempts disclosure of cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers. Justice Murali Purushothaman held that such exemption is also applicable to "potential" cabinet papers since, if disclosure of information is allowed before it reaches the Council, the provision for exemption under Section 8(1)(i) of the Act will stand defeated.

Writ Plea Alleging Violation Of Rights Conferred Under Industrial Settlement Maintainable U/Art 226 Only If Traceable To Common Law: Kerala High Court

Case Title: Bharat Petroleum Corporation & Anr v. Saju A.R & Ors.

Citation: 2022 LiveLaw (Ker) 314

The High Court held that a writ petition in cases where an employee is effectively seeking the enforcement of rights conferred under an industrial settlement is not maintainable before a High Court if the rights in question can only be traced to the settlement and not to any common or civil law. A Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P ruled that in labour matters, the origin of the right alleged to be infringed decides if a High Court should exercise its discretionary remedy under Article 226 of the Constitution to entertain a petition filed by an employee alleging infringement of his rights by the employer.

Can't Refer Dispute To Arbitration Unless There Is A Clear, Unequivocal Denial Of A Right: Kerala High Court

Case Title: Southern Railway v. M/s Cherian Varkey Construction Co. Pvt Ltd

Citation: 2022 LiveLaw (Ker) 315

The High Court has held that the cause of action giving a party the right to refer a dispute to arbitration only accrues when there is a clear and unequivocal denial of a right by one party by the other. Holding so, a Division Bench of Justice P.B. Suresh Kumar and Justice C.S Sudha dismissed the appeal moved by Southern Railway challenging the decision of the Additional District Court.

'Very Serious Allegations': Kerala High Court Dismisses Plea Alleging Corruption In Judges To Secure Govt. Posts After Retirement

Case Title: Abdul Jaleel v. Cabinet Principal Secretary & Ors.

Citation: 2022 LiveLaw (Ker) 316

The High Court recently dismissed a plea seeking the establishment of a two-judge bench of the Supreme Court in all the High Courts in the country to specifically hear the cases of the poor and the destitute. The Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly dismissed the plea holding it was not inclined to grant the reliefs sought for apart from observing that the petitioner had raised serious allegations against the judiciary.

Will Not Disrupt Functioning Of KSRTC: Trade Unions Before Kerala High Court In Plea Alleging Delay In Salary Disbursement

Case Title: R. Baji v. Kerala State Road Transport Corporation Ltd.

Citation: 2022 LiveLaw (Ker) 317

The Kerala State Transport Employee Association informed the High Court that all strikes and disruptive activities on the premises of the KSRTC and its offices will be immediately ceased and that they will not disrupt the functioning of the KSRTC. Justice Devan Ramachandran was hearing the plea moved by the KSRTC employees alleging that they were not being paid salary promptly when it observed that the situation could only be remedied if the State government participated in the matter.

Is A Statement Recorded U/S 164 CrPC A Public Document? Kerala High Court Appoints Amicus Curiae In Saritha Nair's Plea

Case Title: Saritha S. Nair v. Union of India & Anr.

Citation: 2022 LiveLaw (Ker) 318

The High Court appointed an amicus curiae to assist the court to decide the legal question of whether a statement recorded under Section 164 of the CrPC is a public document. Justice Kauser Edappagath appointed the amicus curiae in the plea moved by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, an accused in the gold smuggling case.

No Interference U/A 227 Unless Lower Court Committed Manifest Error Or Decision Is Against Settled Principles Of Law: Kerala High Court

Case Title: K.V Shiraz v. Binny Emmatty

Citation: 2022 LiveLaw (Ker) 319

The High Court recently allowed a petition seeking to set aside an order passed by the Rent Control court finding that the lower court had committed a manifest error while passing the impugned order. The Division Bench of Justice Anil K Narendran and Justice P.G Ajithkumar, while considering the question of whether interference of the High Court was warranted on the order passed by the Rent Control Court, observed that it was only necessary if the lower court had committed a manifest error or utilised patently perverse reasoning to arrive at the decision.

Other Developments

Kerala Govt Sanctions ₹3,000 Monthly Stipend For Junior Lawyers

In a huge relief to the junior advocates practising across the State, the Kerala Government has issued an order mandating a monthly stipend of Rs. 3,000 for junior lawyers in the State. Lawyers below 30 years of age with less than three years of practice and an annual income less than Rs. 1 lakh are eligible for the said stipend. The annual income limit is however not applicable to those belonging to Scheduled Castes and Scheduled Tribes.

Vismaya Dowry Death: Husband Kiran Kumar Moves Kerala High Court Challenging Conviction & Sentence

Case Title: Kiran Kumar S v. State of Kerala & Anr.

Kiran Kumar, the convict in the Vismaya dowry death case has approached the High Court challenging his conviction and the sentence imposed on him by the trial court. Justice Kauser Edappagath admitted the appeal and issued notice to the respondents. The matter will be taken up a month later. Alleging that the finding was perverse based on assumptions, conjunctures and surmises, the husband has preferred a criminal appeal.

Madhya Pradesh High Court

'Insurer Did Not Exercise Ordinary Care': MP High Court Upholds Compensation To LRs Of Deceased Despite Policy Being Bought After Her Death

Case Title : NATIONAL INSURANCE CO. LTD v SMT. GUDDI BAI AND ANRS.

Citation: 2022 LiveLaw (MP) 165

The Madhya Pradesh High Court recently upheld the award passed by the Motor Accident Claims Tribunal, whereby the Insurance Company was directed to pay compensation to the legal representatives of the deceased, despite the insurance policy being bought after the death of the policy owner.

Judge's Integrity Can't Be Doubted Merely For Allowing Adjournment Request: MP High Court Quashes Order Holding Lower Court Judge Guilty Of Misconduct

Case Title : K.C.RAJWANI v THE STATE OF MADHYA PRADESH LAW & LEGISLATIVE AFFAIRS AND ANR

Citation: 2022 LiveLaw (MP) 166

The Madhya Pradesh High Court recently set aside the order of the Disciplinary Authority against a former lower court Judge, whereby he was held guilty of misconduct. Corollary to the same, the Court also set aside the order of his compulsory retirement. He was held guilty by the Disciplinary Authority for, among other things, granting bail with "corrupt or oblique motive" and for granting adjournments on "extremely flimsy grounds".

Dependents Of Deceased Employee Categorised As 'Sthai Karmi' Eligible For Grant Of Compassionate Appointment: MP High Court

Case Title : ASHISH SONI v RANI DURGAVTI VISHVAVIDHYALAYA

Citation: 2022 LiveLaw (MP) 167

The Madhya Pradesh High Court recently held that there is no impediment with respect to consideration of application for compassionate appointment of dependents of such deceased employees, who were classified as 'Sthai karmis', as per the circular of the State Government dated 07.10.2016.

No "Live Link" With Past Incidents: MP High Court Quashes Preventive Detention Order U/S 3(2) Of National Security Act, Awards 10K Cost

Case Title: RANVEER @ RAMAN versus THE STATE OF MADHYA PRADESH AND ORS.

Citation: 2022 LiveLaw (MP) 168

The Madhya Pradesh High Court, Indore Bench recently set aside an order of Preventive Detention under the National Security Act and further imposed a cost of Rs. 10,000, payable to the Petitioner/Detenu.

The Court observed that there was no live link between the earlier alleged incidence on the part of the Petitioner and the incidence in respect of which his detention order had been passed.

Section 5 Of The Limitation Act Applies To Arbitration Reference Under National Highways Act, 1956: High Court of Madhya Pradesh

Case Title: Ghanshyam Gupta v. State of Madhya Pradesh and Ors. Writ Petition No. 13670 of 2021

Citation: 2022 LiveLaw (MP) 169

The High Court of Madhya Pradesh has held that Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956.

The Division Bench of Chief Justice Ravi Malimath and Justice Purushiandra Kumar Kaurav reiterated that since no limitation is provided under Section 3G(5) of the National Highways Act, the provisions of Article 137 of the Schedule to the Limitation Act would apply to such proceedings.

Madras High Court

A weekly round-up of important cases from Madras High Court and its subordinate courts.

Citations: 2022 LiveLaw (Mad) 270 To 2022 LiveLaw (Mad) 280

NOMINAL INDEX

Mohamed Jiyaputheen v. State of Tamil Nadu and Another, 2022 LiveLaw (Mad) 270

M/s.Progressive Stone Works Versus The Joint Commissioner (ST), 2022 LiveLaw (Mad) 271

Mahalakshmi v. The Superintendent of Police and others, 2022 Livelaw (Mad) 272

St. Mary's Matriculation Higher Secondary School v. .The Secretary, Ministry of Petroleum and others, 2022 LiveLaw (Mad) 273

Sunku Vasundhara v State Bank of India, 2022 LiveLaw (Mad) 274

Dinesh v. State, 2022 LiveLaw (Mad) 275

P.Sudha v. The Secretary and another, 2022 LiveLaw (Mad) 276

S.Sarath Kumar v. The District Collector and another, 2022 LiveLaw (Mad) 277

M/s. Dishnet Wireless Limited versus the Assistant Commissioner of Income Tax (OSD), 2022 LiveLaw (Mad) 278

Ganesan v. SHO and another, 2022 LiveLaw (Mad) 279

M/s. Redington (India) Limited versus Principal Additional Director General, 2022 LiveLaw (Mad) 280

REPORTS

1. Plea To Substitute Order Of 'Compulsory' Retirement With 'Voluntary' Doesn't Require Adjudication On Merits: Madras HC Grants Relief To Retd Judge

Case Title: Mohamed Jiyaputheen v. State of Tamil Nadu and Another

Citation: 2022 LiveLaw (Mad) 270

The Madras High Court recently allowed the plea filed by a former District Judge seeking to amend an order for compulsory retirement as that of voluntary retirement.

The bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala observed that the issue did not require adjudication on merits. The court noticed that the order of compulsory retirement was not being challenged and the prayer was limited to substituting the order of compulsory retirement with the order of voluntary retirement. As this prayer did not require any adjudication of merits, the court allowed the application.

2. Writ Petition Not Maintainable If Alternative Statutory Remedy Was Available With The Taxpayer: Madras High Court Reiterates

Case Title: M/s.Progressive Stone Works Versus The Joint Commissioner (ST)

Citation: 2022 LiveLaw (Mad) 271

The Madras High Court has reiterated that a writ petition is not maintainable if an alternative statutory remedy was available to the taxpayer.

The single bench of Justice C. Saravanan has observed that there are a few exceptions to the rule of alternative remedy. Firstly, where the statutory authority has not acted in accordance with the provisions of the enactment in question. Secondly, in defiance of the fundamental principles of judicial procedure. Thirdly, authorities have resorted to invoking the provisions that were repealed. Fourthly, when an order has been passed in total violation of the principles of natural justice,

3. Allegations Of Illegal Detention By Police Officers: Madras High Court Directs To Preserve CCTV Footage

Case Title: Mahalakshmi v. The Superintendent of Police and others

Citation: 2022 Livelaw (Mad) 272

Justice V. Sivagnanam of the Madurai Bench recently directed the Superintendent of Police, Deputy Superintendent Of Police and Inspector of Police of Sankarankovil Town Police Station, Tenkasi District and Inspector of Police, Rajapalam Police Station, Viruthunagar District to preserve the CCTV footages recorded on the 6th and 7th April in connection with an allegation of illegal detention against certain police officials after observing that the same was important to adjudicate the issue involved in the case.

4. Madras High Court Dismisses School's Plea Against Adjacent Opening Of Fuel Pump

Case Title: St. Mary's Matriculation Higher Secondary School v. .The Secretary, Ministry of Petroleum and others

Citation: 2022 LiveLaw (Mad) 273

The Madras High court recently dismissed a petition moved by a school challenging grant of NOC to Hindustan Petroleum Corporation Limited, for opening of a fuel pump adjacent to its building.

The bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala opined that the contentions raised in the challenge were not maintainable. The court however directed HPCL to ensure that all the necessary safety measures were observed while operating the retail outlet and no inconvenience should be caused.

5. Cannot Invoke Article 226 If An Effective And Statutory Remedy Exists Before NCLAT: Madras High Court

Case Title: Sunku Vasundhara v State Bank of India

Citation: 2022 LiveLaw (Mad) 274

The High Court of Madras Bench comprising of Justice T. Raja and Justice K. Kumaresh Babu, while adjudicating a writ petition filed in Sunku Vasundhara v State Bank of India, has held that when an effective and statutory remedy lies before the Appellate Authority i.e. National Company Law Appellate Tribunal (NCLAT), aggrieved parties cannot invoke Article 226 of the Constitution of India for relief. The order was passed on 15.06.2022.

6. Conviction Cannot Be Solely On Extra Judicial Confession Unless Supported By Chain Of Cogent Circumstances: Madras High Court

Case Title: Dinesh v. State

Citation: 2022 LiveLaw (Mad) 275

Finding laches in the case of the prosecution, the Madras High Court recently set aside the order of conviction and sentence of a man who was accused of murdering his friend and burying his body, allegedly over the friend's refusal to perform homosexual activities with him.

The bench of Justice Paresh Upadhyay and Justice AD Jagdish Chandira observed that since the prosecution case could not be proved beyond a reasonable doubt, it was not safe to convict the man on the basis of an extra-judicial confession.

The bench further observed that the burden of proving facts within special knowledge does not shift on the accused by pressing into service Section 106 of the Evidence Act when the prosecution could not prove the basic facts as alleged against the accused.

7. Transgender Persons Classified As "Most Backward Class" For Reservation In Educational Institutions, Govt Jobs: TN Govt Tells High Court

Case Title: P.Sudha v. The Secretary and another

Citation: 2022 LiveLaw (Mad) 276

The Madras High Court on Wednesday disposed of a writ petition seeking reservation for third gender in government jobs after it was informed by the Advocate General R. Shunmugasundaram that the Government had already issued necessary orders way back in 2015, granting the benefit of reservation to the community and had brought Transgender persons under the category of "Most Backward Class" for reservation of seats in educational institutions and appointments in the services of the State.

The bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala opined that no further directions were necessary and that the present writ petition was unnecessary.

8. Notice Of Intended Marriage U/S 5 Of Special Marriage Act Must Be Given "Prior" To Solemnisation Of Marriage: Madras High Court

Case Title: S.Sarath Kumar v. The District Collector and another

Citation: 2022 LiveLaw (Mad) 277

The Madras High Court recently refused to issued directions for registration of a couple's marriage under the Special Marriage Act, stating that the conditions stipulated under Section 4 of the Act for solemnization of special marriages and the procedure thereof contained under Sections 5-13 has to be mandatorily complied with.

Justice GR Swaminathan of the Madurai Bench observed that the marriage was performed on 10.06.2022. Only thereafter, notice was given under Section 5 of the Act. Therefore, it was not solemnized as per the procedure laid down under the Special Marriage Act. The court observed that since the petitioner did not marry Lediya under the Special Marriage Act, he could not claim benefits under Section 4 of the Act.

9. IBC Proceedings Can't Dilute Rights Of The Income Tax Department To Reopen Assessment: Madras High Court

Case Title: M/s. Dishnet Wireless Limited versus the Assistant Commissioner of Income Tax (OSD)

Citation: 2022 LiveLaw (Mad) 278

The Madras High Court has ruled that proceedings under the Insolvency and Bankruptcy Code (IBC), 2016 cannot dilute the rights of the Income Tax Department to reopen the assessment under Section 148 of the Income Tax Act, 1961. The Court noted that the Resolution Plan submitted by the assessee did not contemplate any concession from the Income Tax Department, even though notice under Section 148 of the Income Tax Act was issued to the assessee prior to the submission of the Resolution Plan.

The Single Bench of Justice C. Saravanan held that the provisions of Insolvency and Bankruptcy Code cannot be interpreted in a manner which is inconsistent with any other law in the time being in force. Thus, the Court ruled that the proceedings under the Insolvency and Bankruptcy Code cannot dilute the rights of the Income Tax Department to reopen the assessment under Section 148 of the Income Tax Act.

10. Application For Further Investigation Can Be Filed Even After Commencement Of Trial: Madras High Court

Case Title: Ganesan v. SHO and another

Citation: 2022 LiveLaw (Mad) 279

While allowing a revision of the order of the Judicial Magistrate rejecting the application for further investigation, the Madras High Court recently observed that an application for further investigation can be made even after the commencement of trial. The court observed that bringing out the truth was of utmost importance and that Section 173(8) of CrPC does not put any fetter on the Police to conduct a further investigation after the commencement of trial.

Justice Bharatha Chakravarthy observed that "Section 173(8) of Cr.P.C., does not place any fetter on the Police to conduct further investigation in the case after commencement of trial and whenever they come across any additional information it is just and necessary that the same be brought to the notice of the Court"

The court also observed that by filing the revision, the de facto complainant was only bringing to the notice of the court that an erroneous order had been passed which according to him will lead to injustice. The same would, therefore, not amount to taking over of the prosecution.

11. Officers Of DGGI Are "Central Excise Officers"; Can Issue Show Cause Notices And Adjudicate Service Tax Demand: Madras High Court

Case Title: M/s. Redington (India) Limited versus Principal Additional Director General

Citation: 2022 LiveLaw (Mad) 280

The Madras High Court has ruled that officers of the Directorate General of GST Intelligence (DGGI) are "Central Excise Officers" for the purpose of Rule 3 of the Service Tax Rules, 1994 since they are vested with the powers of Central Excise Officers by the Central Board of Excise and Customs (CBEC).

The Single Bench of Justice C. Saravanan, while considering a bunch of writ petitions, held that that the definition of "Central Excise Officer" in Section 2(b) of Central Excise Act, 1944 is expansive and that any person, including an officer of the State Government, who is invested by the CBEC with any of the powers of a Central Excise Officer under the Central Excise Act, is a "Central Excise Officer".

OTHER DEVELOPMENTS

1. Money Laundering: Madras High Court Stays ED Proceedings Against TN Fisheries Minister Anitha Radhakrishnan

Case Title: Anitha R Radhakrishnan v. The Directorate of Enforcement and Another

Case No: W.P.No.16467 of 2022

The Madras High Court on Wednesday stayed, till the next date of hearing, the money laundering case being probed by the Enforcement Directorate against Minister of Fisheries, Fishermen Welfare and Animal Husbandry for the State of Tamil Nadu, Anitha Radhakrishnan.

The interim relief was granted by the bench of Justice Paresh Upadhyay and Justice AD Jagdish Chandira in a plea by the Minister seeking to quash the enforcement proceedings. The court also granted time to the Enforcement Directorate to file their counter.

Orissa High Court

1. State Vigilance Department Can't Be Completely Exempted From Operation Of RTI Act: Orissa High Court

Case Title: Subash Mohapatra & Ors. v. State of Odisha & Anr.

Citation: 2022 LiveLaw (Ori) 104

In a significant decision, the Orissa High Court has held that the Vigilance Department of the State cannot be completely exempted from the operation of the Right to Information Act, 2005 ('RTI'). It directed that information pertaining to allegations of corruption and human rights violations and also information pertaining to activities undertaken by the Department, which are not sensitive or confidential, should be disclosed under the RTI.

2. Orissa High Court Disposes Pending Case Challenging Puri Jagannath Temple Corridor Project In View Of Supreme Court Decision

Case Title: Dillip Kumar Baral v. State of Odisha & Ors.

Citation : 2022 LiveLaw (Ori) 105

The Orissa High Court has disposed of the pending writ petition challenging Puri Shree Jagannath Temple Corridor Project, in view of the recent decision of the Apex Court in Ardhendu Kumar Das v. State of Odisha. Notably, in that case, the Supreme Court dismissed two petitions filed against some construction works undertaken by the Odisha Government in the adjacent area of the centuries-old holy shrine. Not only those petitions were dismissed, but heavy costs of one lakh each were imposed on both the petitioners.

3. Arbitral Award Cannot Be Set Aside On The Ground That It Is Based On Insufficient Material : Orissa High Court

Case Title: GMR Kamalanga Energy Ltd. versus SEPCO Electric Power Construction Corporation

Citation : 2022 LiveLaw (Ori) 106

The Orissa High Court has reiterated that an arbitral award cannot be set aside on the ground of breach of fundamental principles of justice, if the findings of the Arbitral Tribunal do not shock the conscience of the Court. The Single Bench of Justice K.R. Mohapatra held that even if the material available before the Arbitral Tribunal is not sufficient to come to the conclusion arrived at by the Tribunal, the award cannot be set aside on this ground alone.

4. Orissa High Court Orders Compensation To Woman Who Got Pregnant Even After Undergoing Sterilization

Patna High Court

1. Societal Approval Of Intimate Personal Relations Not A Basis For Granting Them Recognition In Eyes Of Law: Patna High Court

Case title - Amit Raj v. The State of Bihar and others [Criminal Writ Jurisdiction Case No.511 of 2022]

Citation : 2022 LiveLaw (Pat) 20

The Patna High Court has observed that societal approval of intimate personal relationships is not a basis for granting them recognition in the eyes of law. The bench of Justice Ahsanuddin Amanullah and Justice Purnendu Singh was essentially dealing with a habeas corpus plea moved by one Amit Raj, seeking production of her wife (allegedly detained by her family members).

Punjab & Haryana High Court

Nominal Index

Rajeev Kumar v. State of Haryana 2022 LiveLaw (PH) 162

Harjit Singh v. State of Punjab and Others 2022 LiveLaw (PH) 163

Kanwalpreet Singh Kalra Versus State of Punjab & another 2022 LiveLaw (PH) 164

Harmanjot Singh v. State of Punjab 2022 LiveLaw (PH) 165

Bhupinder Singh @ Honey v. Enforcement of Directorate 2022 LiveLaw (PH) 166

Chat Aroma v. Hamir Real Estate Pvt. Ltd. C.R. No 574 of 2022 2022 LiveLaw (PH) 167

Nominal Index

1. 'Arnesh Kumar' Guidelines For Arrest Applicable To Offences Punishable With Less Than 7 Yrs Imprisonment: Punjab & Haryana High Court

Case Title : Rajeev Kumar v. State of Haryana

Citation : 2022 LiveLaw (PH) 162

The Punjab and Haryana High Court has observed that directions passed by the Supreme Court in Arnesh Kumar v. State of Bihar with respect to procedure for arrest shall be applicable to offences punishable with less than or up to seven years of imprisonment.

2. NI Act | Jurisdiction U/S 482 CrPC Can't Be Invoked To Circumvent Due Procedure Of Law: Punjab & Haryana High Court

Case Title : Harjit Singh v. State of Punjab and Others

Citation : 2022 LiveLaw (PH) 163

In a case relating to dishonour of cheque wherein the limitation period for invoking proceedings under Section 138 of the Negotiable Instruments Act had elapsed, the Punjab and Haryana High Court held that the Petitioner cannot invoke Section 482 of CrPC seeking directions to indirectly restore the said right.

3. Girls Attaining Pinnacle Of Education Makes Country Proud: P&H High Court Orders Release Of Man's Passport To Travel Abroad For Daughter's Convocation

Case Title: Kanwalpreet Singh Kalra Versus State of Punjab & another

Citation : 2022 LiveLaw (PH) 164

The Punjab and Haryana High Court recently came to the rescue of a father precluded from attending his daughter's convocation at a foreign University, on account of impounding of his passport due to pendency of a criminal case against him.

4. Rape Victim A Court Employee, Her Long Silence Makes Out A Case For Bail For Accused: Punjab And Haryana High Court

Case title - Harmanjot Singh v. State of Punjab

Citation : 2022 LiveLaw (PH) 165

The Punjab And Haryana High Court recently granted bail to a man as it noted that the victim was a court employee and despite knowing the consequences and legal remedies, she kept quiet for a long time.

5. Illegal Mining Case: Punjab & Haryana High Court Grants Bail To Former Punjab CM Charanjit Singh Channi's Nephew

Case title - Bhupinder Singh @ Honey v. Enforcement of Directorate

Citation:2022 LiveLaw (PH) 166

The Punjab and Haryana High Court has allowed the bail plea moved by Punjab Chief Minister Charanjit Singh Channi's nephew Bhupinder Singh in connection with an alleged illegal sand mining case under Sections 3/4 Prevention of Money Laundering Act. Bhupinder Singh was arrested by the Enforcement Directorate (ED) in an alleged illegal sand mining case in February 2022 after a day-long questioning. It has been alleged that one Kudratdeep Singh used to do sand mining illegally, and Bhupinder Singh used to manage the daily affairs of the said sand mine and used to receive all the payments through cash.

6. A Statement Made At The Stage Of Interim Injunction Is Not A First Statement For Section 8 Of The A&C Act: P&H High Court

Case Title: Chat Aroma v. Hamir Real Estate Pvt. Ltd. C.R. No 574 of 2022

Citation:2022 LiveLaw (PH) 167

The High Court of Punjab and Haryana has held that a statement made at the stage of interim injunction is not a first statement for Section 8 of the A&C Act. The Single Bench of Justice Rajbir Sherawat held that any statement made at the stage of and for the purpose of opposition to the application under Order 39 Rules 1 & 2 or to prevent any interim order being passed by the court, could not be taken as a statement on the subject matter of the dispute.

Rajasthan High Court

Nominal Index

Gopi Kishan v. State Of Rajasthan, Through Pp with connected matter 2022 LiveLaw (Raj) 197

Pradeep Kumar Sharma & Anr. v. Municipal Corporation, Jaipur 2022 LiveLaw (Raj) 198

Pooja Gurjar & Anr. v. State Of Rajasthan & Ors. 2022 LiveLaw (Raj) 199

Jaswant Singh & Ors. v. Staff Selection Board, Jaipur & Ors. 2022 LiveLaw (Raj) 200

Puneet Mohnot v. State Of Rajasthan 2022 LiveLaw (Raj) 201

Sumit Singhal v. State, Through Advocate General, Govt. Of Rajasthan, Jodhpur 2022 LiveLaw (Raj) 202

Gurjant Singh v. Smt. Amarjeet Kaur & Anr. 2022 LiveLaw (Raj) 203

Judgments Orders of the Week

1. No Criminal Action Against Advocate If Legal Advice Goes Wrong, Liable For Professional Misconduct If Established By Cogent Evidence: Rajasthan HC

Case Title: Gopi Kishan v. State Of Rajasthan, Through Pp with connected matter

Citation: 2022 LiveLaw (Raj) 197

The Rajasthan High Court has observed that if any legal advice rendered by an Advocate goes wrong, the same would not subject him to criminal prosecution, as a lawyer. At most, he may be held liable for gross negligence or professional misconduct, if it is established by placing cogent evidence on record.

Dr. Justice Pushpendra Singh Bhati observed, " If any legal advice rendered by an Advocate goes wrong, the same would not subject him to criminal prosecution, as a lawyer. As observed above, an Advocate, at the most, may be liable for gross negligence or professional misconduct, if it is established by placing a cogent evidence on record, but an Advocate cannot be charged for the offences, as alleged herein, alongwith other conspirators."

The Bench was of the view that if an Advocate is prosecuted merely for rendering a legal advice/opinion, it shall not be possible for any lawyer to render such professional advice, more particularly, when such a professional advice, if found to be non favourable for the client, the same would result into criminal prosecution against a lawyer, and in such circumstances, the system of justice delivery would suffer, as lawyers being an important component of the justice delivery system would not be able to give their professional advice without fear and favour.

2. "Placement Of Statues & Free Flow Of Traffic Are Matters Looked Into By State": Rajasthan HC Disposes PIL For Removal Of BR Ambedkar Statue

Case Title: Pradeep Kumar Sharma & Anr. v. Municipal Corporation, Jaipur

Citation: 2022 LiveLaw (Raj) 198

While hearing a PIL for removal of statue of Shri Babasaheb Bhimrao Ramji Ambedkar allegedly causing obstruction, the Rajasthan High Court recently observed that the placement of the statue and free flow of the traffic both are matters, which can be looked into by the authorities and not by the court.

The court opined that the petitioners have chosen only a particular spot in the city rather than coming out with general prayer for removal of unauthorised statues in the city. The court remarked that the petition appears to be only for personal interest, not for public interest. Further, the court directed the Local Body concerned to decide the issue as soon as possible.

Acting Chief Justice Manindra Mohan Shrivastava and Justice Sameer Jain, while disposing the petition, observed, "The Local Body concerned should decide the issue as soon as possible. The placement of the statue and free flow of the traffic both are matters, which can be looked into by the authorities and not by the Court. In view of above, we direct the respondent-Municipal Corporation, Jaipur to examine the whole matter afresh after going through the material on record and take appropriate decision in accordance with law as early as possible."

3. Protection Plea: Rajasthan High Court Permits Police To Charge Married Couple If It Has Adequate Income

Case Title: Pooja Gurjar & Anr. v. State Of Rajasthan & Ors.

Citation: 2022 LiveLaw (Raj) 199

While hearing a protection petition filed by a married couple, the vacation bench of Rajasthan High Court observed that if the petitioner's income is more than taxable income under the Income Tax Act, 1961, the Superintendent of Police after considering the financial aspect may charge appropriate financial charges from them.

Essentially, the petitioners got married on 22.03.2022. However, this marriage was not approved by their relatives and respondents No. 4 to 14 and fearing them, they had filed a petition seeking police protection at their residence and place of work.

The court asked the petitioners to approach the Commissioner of Police/Superintendent of Police and added that it would be the duty of the said authority to ensure the safety and security of the petitioners, for which he may take such suitable measures as found necessary in accordance with law.

4. Court Can't Dictate Exam Dates: Rajasthan High Court Refuses To Interfere With Lab Assistant Exam Schedule

Case Title: Jaswant Singh & Ors. v. Staff Selection Board, Jaipur & Ors.

Citation: 2022 LiveLaw (Raj) 200

The vacation bench of Rajasthan High Court observed that the High Court cannot direct the authorities as to when and on which date a particular examination is to be conducted.

Essentially, the petitioners alleged that the date of examination for the recruitment to the post of Lab Assistant which is going to be conducted on 28.06.2002 and 29.06.2022 is clashing with certain other examinations. Additionally, the petition sought that the candidates be allowed sufficient time for preparation of the examination because, as per the petitioner, the syllabus for Lab Assistant examination has been amended and in place of the earlier short syllabus, a lengthy syllabus comprising many new topics has been introduced.

The court observed that all the recruitment examinations as well as graduation examinations are not conducted for a single person or a specific group of people. These are the examinations for which an advance time table is prepared by the concerned department and are conducted after months of prior preparation, added the court.

5. Whether Prevention Of Corruption Act Can Be Invoked Against A Private Person Alone Requires Consideration: Rajasthan High Court Grants Bail To CA

Case Title: Puneet Mohnot v. State Of Rajasthan

Citation: 2022 LiveLaw (Raj) 201

The Rajasthan High Court has said that whether or not the provisions of Prevention of Corruption Act can be invoked against a private person is a question that requires consideration.

Observing thus, it granted bail to a Chartered Accountant, who it held is not a public servant, booked under the Act after recovery of Rs. 2 lakhs.

Essentially, the applicant-petitioner was arrested in connection with an FIR registered at Police Station Pradhan Aarakshi Kendra, Anti Corruption Bureau, Rajasthan for the offence(s) under Section 7A of Prevention of Corruption Act and Section 120B of IPC. On account of certain reasons, he was allegedly removed from the services of the complainant, who was his client. The applicant-petitioner alleged that he has been falsely implicated in the case due to vindictiveness of the complainant.

6. High Court Not Bound To Invite Bar's Views While Deciding Criminal Reference U/S 395 CrPC: Rajasthan HC

Case Title: Sumit Singhal v. State, Through Advocate General, Govt. Of Rajasthan, Jodhpur

Citation: 2022 LiveLaw (Raj) 202

The Rajasthan High Court has observed that Section 395 of CrPC, which makes provision for criminal reference, does not obligate the court to invite the views of the members of the Bar before answering such reference and that notifying the members of the Bar regarding same is purely the discretion of the court to be exercised as a matter of prudence.

The court clarified that such a course of action is adopted just in order to seek independent views from the members of the bar for the assistance of the court.

As per Section 395 (1) CrPC, a reference involving validity of any Act, Ordinance or Regulation or of any provision contained therein can be referred to the High Court by a court subordinate to it and the referral court would then be required to answer the reference.

Also Read: Application Cast Serious Aspersions On Court, Riddled With Language Errors: Rajasthan High Court Imposes 50K Cost On Advocate

7. [Order XVI Rule 1&2 CPC] Trial Court Required To Ascertain Only "Prima-Facie" Relevancy Of Proposed Witnesses: Rajasthan High Court

Case Title: Gurjant Singh v. Smt. Amarjeet Kaur & Anr.

Citation: 2022 LiveLaw (Raj) 203

The Rajasthan High Court has observed that trial Court is required to prima-facie ascertain the relevancy and requirement of the proposed witnesses while deciding an application for summoning of witnesses in terms of Order XVI Rule 1 and 2 of the Code of Civil Procedure.

The court however made it clear that the applicant may be called upon only to show the relevance or need of such witness(es) but he/ she cannot be asked to establish or prove such requirement; The requirement has to be determined by the Court.

Order XVI Rule (1) and (2) of the CPC in unequivocal terms provide that the court suo moto or on an application, can issue summons to a witness to appear in the court. Further, Sub-rule (2) of Rule 1 of the Order XVI enjoins upon the party desirous of getting a summon issued to a witness to state in its application the purpose for which the witness is proposed to be summoned.

Other Important Updates

1. Asaram Bapu Rape Case: Rajasthan High Court Seeks Status Of Trial For Similar Offences In Gujarat

Case Title: Asharam @ Ashumal v. State Of Rajasthan

While hearing the third application filed by self-styled godman & life convict Asaram Bapu seeking suspension of sentence for rape of a minor, the Rajasthan High Court has sought a status report on the progress of trial pending against the octogenarian for similar offences in Gujarat.

A division bench of Justice Sandeep Mehta and Justice Vinit Kumar Mathur directed both the Public Prosecutor and Asaram's counsel to apprise the Court of the progress so far.

"Learned Public Prosecutor as well as the learned counsel for the appellant shall apprise the Court about the status of the trial which is going on against the accused appellant in the State of Gujarat for similar offences."

This is significant in view of the fact that the High Court had earlier refused his plea for temporary suspension of sentence stating that the same would be futile on account of the cases pending against him in Gujarat.

2. Udaipur Murder : Centre Asks NIA To Take Over Investigation; International Links To Be Probed

The Central Government has directed the National Investigation Agency to take over the investigation of the gruesome murder of a tailor named Kanhaiya Lal Teli at Udaipur yesterday.

"MHA(Ministry of Home Affairs) has directed the National Investigation Agency (NIA) to take over the investigation of the brutal murder of Shri Kanhaiya Lal Teli committed at Udaipur, Rajasthan yesterday. The involvement of any organisation and international links will be thoroughly investigated", the Union Home Minister's Office tweeted today morning.

3. Udaipur Killings | National Investigation Authority Re-Registers Case Against Two Accused

The National Investigation Agency of India has re-registered case against accused who conspired, planned and committed the heinous murder of Shri Kanahiya Lal Telli on 28.06.2022 in Udaipur, Rajasthan.

The case has been re-registered under sections 452, 302, 153(A), 153(B), 295(A) & 34 of the Indian Penal Code and sections 16, 18 & 20 of the UA(P) Act, 1967 against the accused persons.

The Press Release issued by the National Investigation Authority today, states,

"NIA has re-registered a case RC-27/2022/NIA/DLI on 29/06/2022 under under sections 452, 302, 153(A), 153(B), 295(A) & 34 of IPC and sections 16, 18 & 20 of the UA(P) Act, 1967 against the accused who have conspired, planned and committed the heinous murder of Shri Kanahiya Lal Telli on 28.06.2022 in Udaipur, Rajasthan."

4. Udaipur Murder : Court Remands Accused To 14 Days Judicial Custody

The Udaipur Court has sent the two accused involved in Udaipur's heinous murder of the tailor Kanahiya Lal Telli to 14 days judicial custody.

Kanhaiya Lal had received threats earlier for supporting in social media the remarks made by BJP leader Nupur Sharma on Prophet Muhammed. The assailants took a video of the brutal attack. In a video posted later, the attackers said that they carried out the murder to avenge the insult to Islam.

Telangana High Court

1. Place Of Residence Of The Arbitrator Would Not Be The Seat Of Arbitration: Telangana High Court

Case Title: M/s S. Square Infra v. Garneni Chalapathi Rao, Transfer Civil Miscellaneous Petition No. 122 of 2022

Citation:2022 LiveLaw (Tel) 54

The High Court of Telangana has held that the place of residence of the arbitrator would not determine the seat of arbitration. The Single Bench of Justice P. Sree Sudha held that merely because an arbitrator residing in Hyderabad has been appointed, it would not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

2. Beedi Rollers Are Workmen & Entitled To Compensation Under Workmen's Compensation Act: Telangana High Court

Case Title: Yeddandi Venkataiah v. M/s.Prabhudas Kishoredas Tobacco Products Ltd.

Citation:2022 LiveLaw (Tel) 55

The Telangana High Court has held that Beedi workers are "workmen" under Section 2(n) of Workmen's Compensation Act. Justice M. Laxman further held that rolling of Beedies is a "manufacturing process" and hence a Beedi roller is a workman under the Act.

3. Application For Attachment Can Be Filed Before Court Even If The Property Is Outside Jurisdiction: Telangana High Court

Case Title: M/s Rashmi Metaliks Limited versus M/s Techno Unique Infratech Pvt. Ltd.

Citation:2022 LiveLaw (Tel) 56

The Telangana High Court has reiterated that an Execution Petition for enforcement of an arbitral award can be filed in any court at any place in the country. However, the High Court added that the said court must have the jurisdiction to execute the award, which would depend on the award debtor and its location.

4. Look Out Circular Can Be Issued Against Personal Guarantor In The Interest Of Public Money: Telangana High Court

Case Title : Garikapati Venkateswara Rao v. Union of India & ors.

Citation:2022 LiveLaw (Tel) 57

In a recent case, a writ petition filed by a personal guarantor to lift the travel ban was dismissed as huge amount of Rs. 226.02 crores was outstanding to a public sector bank.

5. Reasonable Opportunity Must Be Given To Employer For Determination Of Escaped Amount U/S 7C Of Employees Provident Funds Act: Telangana High Court

Case Title: M/s. The AGA Khan Academy v. Assistant PF Commissioner

Citation:2022 LiveLaw (Tel) 58

The Telangana High Court in a Writ Petition ruled that an order cannot be passed under Section 7C of The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (EPF act) for determination of escaped amount unless the employer is given a reasonable opportunity of representing his case

Justice G. Radha Rani held:

"In the present case a public sector bank had made request for issuance of LOC as huge amount of Rs.226.02 Crores was due and the petitioner had given a personal guarantee to the said outstanding amount."

Uttarakhand High Court

1. Uttarakhand High Court Partially Allows Proposed Felling Of Trees For Widening Sahastradhara Road\

Case Title: Ashish Kumar Garg v. State of Uttarakhand & Anr.

Case Citation: 2022 LiveLaw (Utt) 21

The Uttarakhand High Court has partially allowed the proposal to cut thousands of trees to widen the road connecting an important tourist destination in Uttarakhand, i.e. Sahastradhara. A Division Bench of Acting Chief Justice Sanjaya Kumar Mishra and Justice Ramesh Chandra Khulbe cleared the proposal on the condition that the valuable trees shall be re-planted and duly taken care of by the State.