SIGNIFICANT JUDGMENTS/ ORDERS THIS WEEK1. Arrest In Breach Of 'Arnesh Kumar' Guidelines : Delhi High Court Sentences Police Officer To One Day ImprisonmentCase Title: RAKESH KUMAR v. VIJAYANTA ARYA (DCP) AND ORSCitation: 2022 LiveLaw (Del) 1In a significant judgment, the Delhi High Court held a police officer guilty of contempt of court for arresting a man in violation of the principles laid...
SIGNIFICANT JUDGMENTS/ ORDERS THIS WEEK
1. Arrest In Breach Of 'Arnesh Kumar' Guidelines : Delhi High Court Sentences Police Officer To One Day Imprisonment
Case Title: RAKESH KUMAR v. VIJAYANTA ARYA (DCP) AND ORS
Citation: 2022 LiveLaw (Del) 1
In a significant judgment, the Delhi High Court held a police officer guilty of contempt of court for arresting a man in violation of the principles laid down by the Supreme Court in the case Arnesh Kumar vs State of Bihar. The Court sentenced the police officer to one-day imprisonment for contempt of court.
Justice Najmi Waziri also imposed a fine of Rupees 2000 on the police officer and directed him to pay costs of Rupees 15,000 to the petitioner, who had suffered incarceration for 11 days before release on bail.
In the judgment, the Court observed that subsequent release or acquittal of an innocent is no reparation to the loss of reputation and personal liberty caused by illegal arrest.
2. "Mother Cannot Be Deprived Of Freedom To Take Decision To Continue Or Not Continue With Pregnancy": Delhi HC Allows Termination Of 28 Weeks Foetus
Title: xyz v. GNCTD
Citation: 2022 LiveLaw (Del) 2
Observing that reproductive choice is a facet of reproductive rights of a woman and a dimension of her personal liberty, the Delhi High Court has allowed termination of 28 weeks foetus of a 33 year old woman. The foetus was suffering from various abnormalities including Tetralogy of Fallot (TOF) with Absent Pulmonary Valve Syndrome (APV).
Justice Jyoti Singh also observed that the mother cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy in the backdrop of the foetal abnormalities brought forth in the Medical Opinion of the Board.
"As repeatedly held by the Courts, in the judgements referred above, reproductive choice is a facet of reproductive rights of a woman and a dimension of her 'personal liberty', enshrined in Article 21 of the Constitution of India and thus the Petitioner cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy, in the backdrop of the foetal abnormalities brought forth in the Medical Opinion of the Board," the Court said.
3. Future-Amazon : Article 227 Can't Be Invoked To Challenge Case Management Orders Of Arbitral Tribunal - Delhi High Court
Title: FUTURE RETAIL LTD. Vs. AMAZON.COM NV INVESTMENT HOLDINGS LLC & ORS.
Citation: 2022 LiveLaw (Del) 3
The Delhi High Court has held that the High Court, in the exercise of jurisdiction under Article 227, cannot dictate to a duly constituted Arbitral Tribunal, the manner and the procedure of carrying out the arbitration proceedings.
On the aspect of the limited scope of interference under Article 227 over Arbitral Tribunal's procedure, Justice Amit Bansal added that there is only a small window for interference with orders passed by the Arbitral Tribunal while exercising jurisdiction under Article 227.
The observations came while the Court dismissed the two petitions moved by the Future Group challenging the two orders passed by the Singapore Arbitration Tribunal.
The impugned orders deferred the hearing in the plea filed by Future Group seeking termination of the arbitration proceedings instituted by Amazon. Future Group sought a direction that the the Arbitral Tribunal should first hear its applications to abort the proceedings before final hearing of the matter. Turning down this plea, the High Court said that Article 227 cannot be invoked to challenge the case management orders passed by an Arbitral Tribunal.
4. Mental Cruelty: Delhi HC Dissolves Marriage On Ground That Husband Treated Wife As 'Overseas Wife' For Temporary Companionship
Case Title: VANDANA SINGH v. SATISH KUMAR
Citation: 2022 LiveLaw (Del) 4
The Delhi High Court this week dissolved marriage between a couple on the ground of cruelty, observing that the husband treated the wife as his 'overseas wife', only to use her as a temporary companion and that their marital bond was beyond repair.
Observing that continuation of such a matrimonial bond is sufficient to cause immense mental cruelty to the wife, Justice Vipin Sanghi and Justice Jasmeet Singh said that there was no reason to keep the moribund marriage alive.
"The objective of the institution of marriage is to bring two souls together, who embark on the adventurous journey called life. They share experiences, smiles, sorrows, achievements and struggles. They uplift and support each other in all situations with their emotional, mental and physical presence. On this journey of life, they create personal, social and spiritual bonds, everlasting memories, future plans, through which they co-exist in the society," the Court said.
"An essential aspect of marriage is being present in each other's life, physically and emotionally. It is not to say that every marriage, where the couple stays apart from each other for work or other obligations consensually, is a broken one. However, a marriage where there is neither sharing of emotions, nor of dreams, joys, sorrows, memories (happy or sad), is merely a legal bond," it added.
5. Bail Once Granted Must Only Be Retracted In Face Of Grave & Exacerbating Circumstances: Delhi High Court
Case Title: CHARU SONEJA v. STATE (NCT OF DELHI) AND ORS
Citation: 2022 LiveLaw (Del) 5
Reiterating that personal liberty is one of the cherished constitutional freedoms, the Delhi High Court has observed that once bail is granted to an accused pending completion of the Trial, the same must only be retracted in the face of grave and exacerbating circumstances.
Analyzing the difference between an order 'rejecting' an application for bail and an order for 'cancellation' of bail, Justice Subramonium Prasad was of the view that the party challenging bail already given needs to demonstrate, by showing evidence and instances, that the person enlarged on bail has been threatening the victim and may consequently cause personal harm to the victim or her family, is tampering with evidence or influencing prosecution witnesses to the extent that it would vitiate the Trial and lead to a miscarriage of justice.
"Personal liberty is one of the cherished constitutional freedoms. Once granted to an accused pending completion of the Trial, it must only be retracted in the face of grave and exacerbating circumstances," the Court said.
6. Litigant Ought Not To Suffer Merely Because Of Wrong Listing Date Entered In Advocate's Court Diary: Delhi High Court
Case Title: BHIKAM MASIH v. M/S TRIG DETECTIVES PVT. LTD.
Citation: 2022 LiveLaw (Del) 6
The Delhi High Court has observed that a litigant ought not to suffer merely because a wrong entry or a wrong date is entered in it's Advocate's court diary, thereby precluding his appearance before the Court on the fixed date.
Justice Pratibha M Singh however added that the Court or the Tribunal would have to examine as to whether the said wrong entry is merely an excuse or whether it is genuine.
"Advocates who appear before a court of law usually have the practice of maintaining their court diary. The entries in the same are maintained by court clerks working with advocates. In the said diary, the previous date, the number and name of the case, is entered. Some advocates' offices or court clerks also enter the forum where the case is listed. Once the matter is over, the next date is entered in the diary. In the diary, on the date to which the matter is adjourned, the case name is again entered. In this process, it is usual for a wrong entry to take place, due to inadvertence by the court clerk or counsel," the Court said.
7. Air India Disinvestment Saw Keen Competition, Not Rigged In Favour Of Tata Group: Delhi High Court In Subramaniam Swamy's Plea
Case Title: Dr. Subramanian Swamy v. Union of India & Ors.
Citation: 2022 LiveLaw (Del) 7
The Delhi High Court has held that the bidding process for disinvestment of then national airline, Air India, was not rigged in favour of the Tata Group.
A Division Bench of Chief Justice DN Patel and Justice Jyoti Singh observed that the bidding process saw keen competition with seven Expression of Interests and two bidders, and it cannot be said that the process was tailor made to facilitate the Talace Private Limited, a wholly owned subsidiary of Tata Sons, which emerged as the highest bidder.
Holding thus, it dismissed the petition filed by BJP MP Subramanian Swamy, seeking quashing of the disinvestment process, on the ground that the bid process was arbitrary, corrupt, against public interest and rigged in favour of Tata group.
8. UPSC Civil Services: Delhi High Court Dismisses Plea To Postpone Mains Exam Amid Rising Covid-19 Cases
Case Title: Rajat Jain and Ors. v. UPSC & Anr.
Citation: 2022 LiveLaw (Del) 8
The Delhi High Court has dismissed the plea seeking postponement of UPSC Civil Services Mains Examination, 2021 scheduled from January 7 to January 16, 2022, in view of Covid-19 third wave and spread of the new Omicron variant.
Justice V Kameswar Rao said,
"I find, the press release do indicate that the UPSC is conscious of the prevailing situation and the safety and convenience of the candidates. Preparations for such an important exam are made well in advance maintaining confidentiality and secrecy in respect of answer sheets and question papers and all preparations being in place, it shall not be in public interest to interdict the process. The apprehension of 19 petitioners cannot outweigh the interest of thousands of other candidates, (apart from public interest), who have toiled themselves to prepare themselves for the examination."
Going through the averments made in the petition, the Court was of the view that they were general in nature without any specific details.
9. Trademark Infringement Suit Has To Be Stayed Till Disposal Of Rectification Proceedings Before Registrar: Delhi High Court
Case Title: Hamdard National Foundation (India) & Anr. v. Sadar Laboratories Pvt. Limited
Citation: 2022 LiveLaw (Del) 9
The Delhi High Court has made it clear that under Section 124 of the Trade Marks Act, 1999, when rectification proceedings are pending, the suit against infringement of Trademark has to be stayed, pending final disposal of such proceedings.
Justice Asha Menon thus stayed the suit filed by Hamdard Dawakhana, against alleged infringement of its registered trademark 'Rooh Afza'. The Bench observed,
" In the light of Section 124(1)(b)(i) of the Trade Marks Act, 1999, the suit is stayed pending the final disposal of the rectification application filed by the plaintiffs. On the conclusion of those proceedings, either side may move an application for listing of the suit before the court."
10. 'Medical Manual Not Sole Repository Of All Ailments': Delhi High Court Denies Relief To JAG Candidate Declared Unfit Due To High Haemoglobin
Case Title: MILASH ARROL NORONHA v. UNION OF INDIA & ORS
Citation: 2022 LiveLaw (Del) 10
The Delhi High Court has held that the Medical Manual (Manual of Medical Examination and Medical Standard for Various Entries into Army, TRG Academies and Military School) cannot be stated to be the sole repository of all ailments that may make a person medically unfit for appointment in the Armed Forces.
A bench comprising of Justice Navin Chawla and Justice Manmohan added that the Medical Manual cannot lay down all the complex ailments or grounds that would make a candidate unfit for appointment to Armed Forces, whose demands are most extracting with the personnel being posted to extreme weather conditions.
The Court was dealing with a petition filed by a law graduate who had applied for the post of Judge and Advocate General (JAG) in 'JAG ENTRY SCHEME 27TH COURSE (OCT 2021)'. After completing two stages of the selection process, he was recommended as the top candidate in his batch, for a medical examination.
11. Delhi High Court Allows Medical Termination Of Pregnancy Exceeding 28 Weeks Citing Foetal Abnormalities, Emotional Distress Of Mother
Case Title: SANGEETA THAPA v. GOVERNMENT OF NCT OF DELHI & ORS.
Citation: 2022 LiveLaw (Del) 11
The Delhi High Court has allowed termination of pregnancy of a 28 year old woman whose gestational period had exceeded 28 weeks after taking note of her mental and emotional distress apart from the foetus abnormalities.
Justice Rekha Palli relied on a recent order of a coordinate bench wherein the Court allowed termination of 28 weeks foetus of a 33 year old woman observing that reproductive choice is a facet of reproductive rights of a woman and a dimension of her personal liberty. The Court had also observed that the mother cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy in the backdrop of the foetal abnormalities brought forth in the Medical Opinion of the Board.
The petitioner in this case had sought medical termination of her pregnancy on the ground that the foetus was suffering not only from Edward Syndrome (Trisomy 18) but also from non-ossified nasal bone and bilateral pyelectasis.
12. [POCSO] 'Penetration Sufficient, Presence Of Semen Not Necessary': Delhi High Court Upholds Conviction Of Man For Raping 5 Yr Old
Case Title: RAM NAWAL v. STATE
Citation: 2022 LiveLaw (Del) 12
The Delhi High Court has upheld the conviction and sentence awarded to a man for raping a 5 year old minor victim in a POCSO case. The Court observed that penetration is sufficient in order to constitute an offence under Section 376 (rape) of IPC and Section 6 of the POCSO Act and that presence of the semen is not necessary.
"Undoubtedly, as per the FSL and DNA fingerprinting report neither any semen was detected nor were the alleles from the appellant accounted in the blood smears or the vaginal smears of the prosecutrix. To constitute an offence punishable under Section 376 IPC and Section 6 of the POCSO Act, penetration is sufficient and it is not necessary that semen needs to be essentially present," Justice Mukta Gupta observed.
The Court was dealing with an appeal challenging the judgment dated 12th January, 2018 wherein the appellant was convicted under sec. 6 of the POCSO Act. Sec. 6 of prescribes the punishment for aggravated penetrative sexual assault.
13. Father Can't Abdicate His Responsibility Of Looking After Unmarried Daughters, Obligated To Take Care Of Their Education & Marriage Expenses: Delhi HC
Case Title: POONAM SETHI v. SANJAY SETHI
Citation: 2022 LiveLaw (Del) 13
The Delhi High Court has observed that a father cannot abdicate his responsibility of looking after his unmarried daughters and that he has a duty and obligation to maintain them, including taking care of their expenses towards education and marriage.
A Bench of Justices Vipin Sanghi and Jasmeet Singh added that 'Kanya Daan' is a solemn and pious obligation of a Hindu Father, from which he cannot renege.
The Court thus directed the father to pay a sum of Rs. 35 Lakhs and 50 Lakhs towards the expense of marriages of his two daughters.
It allowed an appeal filed by the wife challenging a Family Court order, though granting her divorce on the ground of cruelty, however, denying maintenance for herself and the two major daughters.
14. Offence Of Rape Not Waived: Delhi HC Refuses To Quash FIR Against Govt Servant Following Settlement & Marriage With Victim
Case Title: SWATANTRA KUMAR JAYSAWAL v. STATE & ANR.
Citation: 2022 LiveLaw (Del) 14
The Delhi High Court has refused to quash an FIR against a Government Servant containing allegations of rape, observing that such an FIR cannot be quashed on the basis of settlement between parties and their subsequent marriage as it does not waive off the offence alleged.
Reiterating that the act of rape is not an act against individual but is an offence against the society, Justice Rajnish Bhatnagar was of the view thus:
"In the present case, the petitioner is a Government Servant, working as Superintendent with Customs & CGST department, Govt. of India, holding a Gazetted post. So being a Government Servant, he is expected to maintain high moral rectitude and decent standard of conduct in his personal/private life and not bring discredit to his service by his misdemeanours."
It added, "In fact a Government servant has all the more responsibility as far as his conduct is concerned towards the society. Rape not only destroys the personality of the victim but it also scars the mental psyche of the victim which remain embedded on the mind of the victim for years together. The charges of rape are of grave concern and cannot be treated in a casual manner."
IMPORTANT WEEKLY UPDATES
1. Right To Street Vending vs Rights Of General Public: Delhi High Court Questions Centre Over A Balanced Approach
The Delhi High Court this week questioned the Central Government as to whether the right of street vending impinges on the fundamental rights of general public when implemented on the ground.
A bench of Justice Vipin Sanghi and Justice Jasmeet Singh, which was hearing a batch of pleas challenging the vires of Street Vendors Act, 2014 and the 2019 scheme framed thereunder, orally remarked thus:
"Whenever the Supreme Court has said that there is fundamental right to vending, the spirit has been that every fundamental right comes with a limitation or restriction. The point is, where have you put the scale? Where are you putting the fulcrum? Have you balanced?"
2. Delhi High Court Lauds Efforts Of Bar Members For Contributing To College Fees Of Two Girls As Their Father Failed To Pay Them Monies
The Delhi High Court has lauded the efforts made by the members of the bar for jointly contributing towards payment of college fees of two girls after their father failed to pay them monies. Many lawyers who were logged-in and were awaiting their turns, had spoken up about offering their contributions for the education expenses of the two girls.
Taking note of the fact that the mother and her two daughters were overwhelmed by the generous outpouring of financial assistance and emotional support by the lawyers, Justice Najmi Waziri said:
"The Court records its appreciation that the members of the Bar have responded so robustly to ameliorate the financial difficulties of the two young students and have further assured that the studies shall not be hindered for want of finances."
"Gestures, such as these, continue to reassure society about the nobleness of the legal profession and that the generosity of human goodness is only waiting to be tapped."
The Delhi High Court has called for a report in respect of filling up of vacancies and infrastructure requirements across all District Fora and the State Consumer Redressal Forum in the city.
Justice Pratibha M Singh directed the Principal Secretary-cum-Commissioner of the Department of Consumer Affairs of the Delhi Government to submit the said report within six weeks.
The Court also directed the said officer to coordinate with Justice Sangita Dhingra Sehgal (Retd.), President of the State Consumer Redressal Forum, in order to ascertain the vacancies across the District Fora in Delhi and further requirements of the said fora and the State Forum
4. 'Uniform Civil Code Is Public Policy Matter, No Direction Can Be Issued To Parliament': Centre To Delhi High Court
The Central Government has informed the Delhi High Court that implementation of the Uniform Civil Code, a directive principle under the Constitution, is a matter of public policy and that no direction in this regard can be issued by the Court.
The submission has come in the counter affidavit filed by the Centre in the PIL filed by BJP leader Ashwini Upadhyay, seeking introduction of Uniform Civil Code in the country.
The Centre further submitted that the Parliament exercises sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation.
5. 'Marital Rape Biggest Form Of Sexual Violence Against Women In Matrimonial Home, Goes Unreported": Sr Adv Colin Gonsalves Argues In Delhi HC
In a bunch of pleas seeking criminalization of marital rape in India, one of the petitioners told the Delhi High Court that marital rape is the biggest form of sexual violence against women which is never reported, analyzed or studied.
Senior Advocate Colin Gonsalves appearing for petitioner submitted before a bench comprising of Justice Rajiv Shakdher and Justice C Hari Shankar thus:
"This is probably the biggest form of sexual violence against women in the matrimonial home, in the confines of the home, unrecorded, unreported, there is no FIR. If one counts the total number of married men and married women, how many times this rape takes place within an institutional marriage, it's a huge figure which is never reported or analysed or studied."
6. Espionage Case: Delhi High Court Grants Bail To Freelance Journalist Rajeev Sharma
The Delhi High Court has granted bail to freelance journalist Rajeev Sharma in connection with a case alleging that he supplied confidential information to Chinese Officials, in exchange of remuneration.
Enforcement Directorate had initiated investigation on the basis of an FIR filed against Sharma under the provisions of IPC and Official Secrets Act.
It was the case of ED that Sharma had supplied confidential information to Chinese Officials in return of some remuneration thereby comprising the security and national interest of the Country.
It was however submitted that the ED is mischievously carrying out the instant parallel proceedings pursuant to the investigation carried out by the Special Cell in order to harass him. It was also submitted that he can explain each and every minute detail of the payments received by him and that he was absolutely innocent.
7. 'We Would Like To Know Percentage Of Severe Cases': High Court Inquires About Covid-19 Situation In Delhi
Amid rising cases of Covid-19 and spread of its Omicron variant, the Delhi High Court has inquired about the public health conditions in the national capital.
A Division Bench of Justices Vipin Sanghi and Jasmeet Singh told the Delhi government that it would like to know the percentage of severe Covid-19 cases in the city. It also enquired about the percentage of Omicron cases.
Senior Advocate Rahul Mehra, appearing for GNCTD, told the Bench that this time, the situation is very different from what happened during the second wave and there is comparatively less hospitalization.
He added that even the span of home isolation has been reduced to 7 days this time, and there is no need for getting tested as negative. A fresh report detailing the latest position will be filed in the Court, he said.
8. Delhi High Court Stays TDSAT's Order Restraining TRAI From Taking Action Against Vodafone Idea Ltd. On Mobile Number Portability
The Delhi High Court has stayed an order passed by the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) restraining the Telecom Regulatory Authority of India (TRAI) from taking any precipitative action against the Vodafone Idea Limited on mobile number portability.
The impugned order dated December 24, 2021 had stayed a direction passed by TRAI dated December 7, 2021 directing all service providers to enable with immediate effect, for all mobile subscribers, the facility to send SMS on short code 1900, in order to exercise their right to avail porting out facility. The said portability facility is in accordance with the MNP Regulations, 2009.
9. Won't Insist On Physical Appearance Of Amazon Officials : Enforcement Directorate Tells Delhi High Court
The Delhi High Court this week adjourned to January 12 the hearing in the plea filed by Amazon Wholesale India Pvt. Ltd. challenging the jurisdiction of the Directorate of Enforcement to investigate the matters beyond the scope of powers prescribed under the Foreign Exchange Management Act (FEMA).
Justice Rekha Palli deferred the hearing after taking note of the fact that Senior Advocate Siddharth Luthra appearing for Amazon Wholesale India Pvt. Ltd. sought to rely upon certain judgments, copies of which were circulated early in the morning.
An oral assurance was given by Additional Solicitor General SV Raju, appearing for ED, that in view of the rising Covid 19 cases it will not insist on physical appearance and will not call anyone to Delhi till the next date of hearing.
10. 'Doorstep Ration Delivery Scheme Is In Public Interest; LG Taking Obstructive Approach': Delhi Govt Tells High Court
The Delhi High Court this week continued hearing a plea filed by Delhi Sarkari Ration Dealers Sangh, opposing the State Government's scheme for door step delivery of ration.
Senior Advocate Dr. AM Singhvi, appearing for the Delhi Government, made three-fold submissions: (i) the scheme is proposed in public interest, to uphold the citizens' right to food; (ii) the National Food Security Act does not prohibit doorstep delivery of ration; and (iii) the Delhi LG has adopted an 'obstructive approach' to stall the implementation of the scheme.
11. Consider Early Re-Testing Of COVID-19 Positive International Travellers: High Court Tells Delhi Govt
The Delhi High Court has said that it expects the Delhi Government to consider expeditiously the issue of early re-testing of international travellers who are testing COVID 19 positive in case there are no guidelines framed by the Central Government in this regard.
Justice Rekha Palli was dealing with a petition filed by a mother whose son, an 18 years old student returned from the UK, was found to be positive for the COVID-19 at the IGI airport after his swabs were taken for testing.
The petitioner had therefore approached the Court with a grievance that despite her son having no symptoms, he was compelled to stay at a private hospital and despite his repeated requests, no RTPCR test was conducted.