Orders Relating to Fundamental Rights 1. Delhi High Court Holds "To Have A Name And Express The Same" Is Protected Under Articles 19 & 21, Allows DU Student's Plea In a landmark judgment, the single judge bench of Justice Jayant Nath while hearing a DU student's plea, held that "to have a name and express the same" is protected under Articles 19(1)(a) and 21 of the...
Orders Relating to Fundamental Rights
1. Delhi High Court Holds "To Have A Name And Express The Same" Is Protected Under Articles 19 & 21, Allows DU Student's Plea
In a landmark judgment, the single judge bench of Justice Jayant Nath while hearing a DU student's plea, held that "to have a name and express the same" is protected under Articles 19(1)(a) and 21 of the Constitution and allowed the student petitioner before it to change his name, stating that "normally a person would have a right to have his name changed subject to fulfilment of appropriate formalities/procedures to ensure that there is no misuse or confusion created on account of the change in name."
[Case: Rayaan Chawla v. DU & Anr.]
2. Horrific Handling of Bodies of Those Who Died Of COVID19: Delhi HC Takes Suo Moto Cognizance of a Newspaper Report
A Division Bench of Justice Rajiv Sahai Endlaw and Justice Asha Menon took cognizance of the horrific handling of bodies of those who have died of COVID19. The Court emphasized on the "rights of the dead" and sought response from the Government as to the staeps being taken by it to ensure proper disposal.
[Case: Court on its own motion. GNCTD & Ors.]
3. Granting Injunction For Interference With Contractual Relations of Two Parties In Absence of Law Would Violate Art 19(5) of Constitution: Delhi HC
Single Bench of Justice Rajiv Sahai Endlaw held that providing injunction for alleged interference with contractual relations of two parties, in absence of any law, would violate the fundamental right of carrying out trade under Article 19(5) of the Constitution. The order was passed in a case where INOX Ltd had asked the court to injunct PVR Cinemas from dealing with third parties with whom INOX was in a process of developing contractual relations.
The court noted that the grant of injunction claimed by the Plaintiff on the premise of the actions of the Defendant comprising a tortious act of interference with contractual relations of the Plaintiff, would be in violation of the fundamental right of the Defendant, its promoters and directors to carry on trade and business, without any law having been enacted by the State in this respect in the interest of general public, within the meaning of Article 19 (5) of the Constitution of India.
[Case: Inox Leisure Ltd. v. PVR Ltd.]
Orders Relating to Women Rights
4. Motherhood Can't Be Equated With Loss Of Employment; Maternity Leave Not A Reason To Deny Tenure Extension To Contract Staff: Delhi HC
A Division Bench of Justice Hima Kohli and Justice Asha Menon quashed the termination letter of an ad-hoc Professor whose contract was not renewed by the College as she had taken a maternity leave, which was not approved by the said College. The bench also imposed a cost of ₹50,000 on the Respondents for giving arbitrary and unmerited reasons for not renewing the term of the Appellant.
The Court added that such denial would amount to penalizing a woman for electing to become a mother:
"Such a justification offered by the respondents for declining to grant an extension to the appellant/petitioner as she had highlighted her need for leave due to her pregnancy and confinement would tantamount to penalizing a woman for electing to become a mother while still employed and thus pushing her into a choiceless situation as motherhood would be equated with loss of employment.
This is violative of the basic principle of equality in the eyes of law. It would also tantamount to depriving her of the protection assured under Article 21 of the Constitution of India of her right to employment and protection of her reproductive rights as a woman. Such a consequence is therefore absolutely unacceptable and goes against the very grain of the equality principles enshrined in Articles 14 and 16".
[Case: Manisha Priyadarshani v. Aurobindo College- Evening & Ors.]
5. An Adult Woman Is Free To Reside Wherever She Wishes And With Whoever She Wishes: Delhi HC Directs Police To Counsel The Parents
A Bench of Justice Vipin Sanghi and Justice Rajnish Bhatnagar provided relief to an adult woman who left her home to marry the man of her choice. After taking her consent and wishes into consideration, the court noted that being a major, she has a free will to reside wherever she wants and with whoever she wishes.
The order was passed in a habeas corpus petition moved by the family members of the said woman, seeking her production before the court. As per the petition, she went missing on 12/09/20.
[Case: Parveen v. GNCTD]
6. Plea Seeking Period Leave For Women Employees: Delhi HC Directs Centre To Consider It As Representation
A Division Bench of Chief Justice DN Patel and Justice Prateek Jalan directed the Union of India to consider as a representation, a plea seeking period leave and facilities of periodic rests, separate and clean toilets and provision of sanitary napkins to woman employees during menstruation period.
Moved by Delhi Labour Union, the PIL sought framing of a policy by the Delhi Government and the Central Government to provide special casual leave/paid leave as well as to ensure separate and clean toilet facilities, periodic rests and free sanitary napkins to women employees during their menstruation period.
7. "ICC Can't Comment On Personal Conduct Of Parties": Delhi High Court Shuns Moral Policing By Internal Committee In Cases Of Sexual Harassment At Workplace
A Single Bench of Justice Pratibha Singh in a progressive judgment delivered on a writ petition by a female employee of Punjab National Bank has held that the jurisdiction of Internal Complaints Committee (ICC) established under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, is limited to allegations of sexual harassment and whether a complaint is made out or not, to that effect. The ICC "cannot make comments on the personal conduct of the parties", the court has held.
The Court remarked, "any consensual relationship among adults would not be the concern of the Management or of the ICC, so long as the said relationship does not affect the working and the discipline of the organisation and is not contrary to the Rules or code of conduct binding on the said employees," and said that "moral policing is not the job of the management or the ICC".
[Case: Bibha Pandey v. Punjab National Bank & Ors.]
8. Sexual Harassment At Workplace - Impossible To Ignore How Easily 'Common Woman' Is Put Down By 'Common Man', Less Said Better About Third Gender: Delhi High Court
A bench of Justice Rajiv Sahai Endlaw and Justice Asha Menon ruled that when a woman makes allegations of sexual harassment against her male colleague, her credibility is not diminished because of such pending disciplinary proceedings against her. The Court further noted that even if she has been subjected to penalties, so long as there is nothing to show that the officer who imposed the punishment has been targeted by her by filing a complaint of sexual harassment against him, such punishments or proceedings cannot have any bearing on the inquiry into a sexual harassment complaint.
The Court ruled that absence of eyewitnesses cannot diminish the credibility of the complainant and when talking about the standard of proof required by the Internal Complaints Committee, the Court remarked, "The high standard of proof required in criminal trials is not called for during an inquiry by the Internal Complaints Committee under the Act." The Act here refers to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Court further noted that a woman who is perturbed by an action of a male colleague, either through words, gestures or action "cannot be expected to have such clarity of thought, to know who all were present at the time of the incident, and who all may have witnessed the incident and remember their names and faces."
[Case: Ms. X v. Union Of India & Ors.]
Inter-faith Couples
9. Fearing Harassment By Vigilante Groups & Authorities, Interfaith Couple From UP Moves Delhi High Court, Gets Protection
The High Court came to the rescue of an Interfaith Couple from Uttar Pradesh, who had moved the court (seeking protection) fearing threats, intimidation and acute harassment at the hands of vigilante groups, vested interests and even the authorities.
The Bench of Justice Anu Malhotra said that the authorities in Delhi shall be bound by their submission that the Social Welfare Department shall provide assistance and adequate safe house to Renu and Rehan (names changed), in terms of the verdict of the Supreme Court in Shakti Vahini v. Union of India & Others: (2018) 7SCC 192.
In this case, the couple wished to solemnize their marriage under the Special Marriage Act, 1954, out of their own free will and volition, without any intention of converting their respective religions. However, it was submitted that Renu's parents and relatives opposed this inter-faith matrimonial alliance and were coercing and pressuring her to marry a man of their choosing.
[Case: X & Anr. v. State of GNCT Delhi & Ors.]
Prisoners, Bail & Personal Liberty
10. Delhi HC Calls For Use Of GPS Tracking System To Monitor Movement Of Accused Released On Bail
A single bench of Justice Asha Menon called for the use of tracking systems such as GPS tracking system to monitor the movement of accused who have been released on bail. The judge observed that the case at hand "brought to the fore the need for investigative agencies and the Government to consider the use of advances in technology to track under-trials in cases of this nature where the State may fear that an accused may flee from trial".
"Digital and electronic equipment, as presently used in America, ought to be introduced in India, so that a tracking system similar to the GPS Tracking System, can be used to monitor the movement of the accused released on bail, allowing the authorities to gather information all the time while permitting the accused to undertake the usual and ordinary activities of normal life", she added.
Also Read: Delhi Court Directs Continuously Switched On GPS and Bluetooth As A Mandatory Condition for Bail
[Case: State (NCT of Delhi) v. Sanjeev Kumar Chawla]
11. Once A Prisoner Obtains Custody Parole In A Case, He Need Not Obtain Permission From Every Court Where He Has Been Convicted Or Is Pending Trial: Delhi HC
A single bench of Justice Anup Jairam Bhambhani made it clear that once a prisoner obtains custody parole in a particular case, he does not need to procure separate custody parole orders from every other court which has either convicted him or where he is pending trial. The Court was hearing a plea filed by former MP Mohd Shahabuddin, who is currently serving a life term in Tihar Jail, and is facing trial in several other cases.
After granting him parole, the Court clarified that he need not approach other Courts in remaining matters against him as "Custody parole therefore contemplates a situation whereby, for special exigencies mentioned in the jail rules, the prisoner is granted guarded liberty and the jail travels with the prisoner to wherever the prisoner is allowed to go under orders of the court. Since the prisoner continues to remain in judicial custody, the need for taking custody parole or other permission from each and every court in which the prisoner is pending trial or has been convicted does not arise."
[Case: Md. Shahbuddin v. State Govt Of NCT Of Delhi]
12. Prisons Are For Punishing Convicts, Not For Detaining Undertrials In Order To 'Send Message To Society': Delhi HC Holds While Granting Bail To Delhi Riots Accused
While granting bail to a person accused of burning a shop during Delhi riots, the Single Bench of Justice Anup Jairam Bhambhani held that 'sending a message to society' can't be basis for denying bail, if the court is otherwise convinced that no purpose in aid of investigation and prosecution will be served by keeping the accused in judicial custody. The court noted that noted that prison is primarily for punishing convicts; not for detaining undertrials in order to send any 'message' to society.
[Case: Firoz Khan v. State (NCT of Delhi)]
13. 'When No Minimum Sentence Is Prescribed, Accused is Entitled To Default Bail If Charge-Sheet Not Filed In 60 Days': Delhi High Court Grants Bail To Journalist Rajeev Sharma
A Single Bench of Justice Yogesh Khanna granted bail to journalist Rajeev Sharma, who was arrested for allegedly leaking sensitive information to Chinese intelligence. It observed that an accused is entitled to default bail if chargesheet is not filed in 60 days, if no minimum sentences is prescribed under the statute for the offences alleged against him.
The Bench referred to the judgments in Rajeev Choudhary v. State of NCT of Delhi, 2001 (5) SCC 34 and Rakesh Kumar Paul v. State of Assam and observed that the words "not less than" in Section 167(2) would mean that the imprisonment should be of 10 years or more and would cover only those cases for which the punishment and imprisonment would be for a clear period of 10 years or more.
[Case: Rajeev Sharma v. State (NCT) Of Delhi]
14. 'Non-Cooperation During Investigation Is Irrelevant In Plea For Revocation Of Pardon': Delhi HC
Single-Judge bench of Justice C. Hari Shankar held that the condition of pardon of a court approver- to make "full and true disclosure"- applies to the proceedings before the Court, and do not encompass the proceedings during investigation. On this ground, the court dismissed the Enforcement Directorate's plea for revocation of pardon granted to Rajiv Saxena, one of the accused in the VVIP Chopper Scam case.
The court observed that the Dubai-based businessman was yet to be examined by the Trial Court, and merely because the Public Prosecutor had issued a "Certificate for revocation of pardon" under Section 308 (1) of CrPC, on the basis of investigation, would not lead to revocation of pardon.
[Case: Directorate of Enforcement v. Rajiv Saxena]
15. As A General Rule, Copy of The Jail Superintendent's Report Must Be Given To The Bail Applicant: Delhi HC
The Division Bench of Chief Justice DN Patel and Justice Prateek Jalan observed that a general rule, a copy of the report given by the Jail Superintendent as well as by the Investigating Officer should be supplied to the applicant so that accused can properly understand the reasons given therein and defend their case. The court further observed that the copies of the Jail Superintendent and the Investigating Officer shall be provided in advance, both to the court and to the accused.
The order has come in a writ petition filed by Mr Chirag Madan seeking a direction to be issued to the Jail Superintendent and Investigating Officer to supply the copies of their reports to the accused persons in matters pertaining to bail before the trial courts.
[Case: Chirag Madan v. Union of India & Ors.]
16. Default Bail Cannot Be Denied To Accused Just Because He Filed Application U/S 439 Instead of 167(2) CrPC : Delhi High Court
In a landmark ruling, the High Court granted bail in a case where the accused was prepared to furnish bail and comply with the conditions under Section 167(2) of CrPC but had submitted his application under Section 439 CrPC. The court held that in the instant case, although the accused had submitted his application for bail under Section 439 CrPC, he had 'indicated' as required under the Proviso(a) to Section 167(2) of CrPC that he was prepared to furnish bail, and therefore "in substance, the said condition is met".
The bench of Justice Vibhu Bakhru further expounded that the Supreme Court too has explained on a number of occasions that the Proviso (a) to Section 167(2) CrPC is intrinsically linked to the right under Article 21 of the Constitution of India that "no person shall be deprived of his life or personal liberty except according to the procedure established by law". He stated that, "since the Section embodies a safeguard that circumscribes the power to detain an accused pending investigation, it would not be apposite to curtail the same on technicalities."
[Case: Subhash Bahadur v. NCT of Delhi]
17. Murder Convicts Sentenced To Life Without Remission Not Entitled To Furlough: Delhi HC
The Single Bench of Justice Mukta Gupta held that a convict who has been awarded sentence for a particular period or for life with the stipulation that no remission will be granted to him in that period is not entitled to furlough during the said period while undergoing the sentence.
The Single Judge observed that as laid down by the Supreme Court in its various decisions parole is an exercise of discretion whereas furlough is a salutary right of the convict to be considered for release which the convict can claim if he satisfies the requirement of the Act and the Rules. From Rules 1171 to 1178 and Rule 1223 of the Delhi Prison Rules, 2018 it is evident that a prisoner is entitled to furlough only if he has earned three Annual Good Conduct reports and consequently three Annual Good Conduct Remission. "Consequently, a prisoner awarded a fixed term sentence would not be entitled to Annual Good Conduct Report, which, as explained above, is an eligibility criteria for grant of furlough", stated the Court
[Case: Sanjay Kumar Valmiki v. State]
18. Jail Authorities Must Be Apprised Of Their Duties & Prisoners' Rights: Delhi HC Directs DSLSA To Conduct Training Workshop For Jail Superintendents
The Division Bench of Justice Hima Kohli and Justice Subramonium Prasad directed the Member Secretary of the Delhi State Legal Services Authority to conduct a training workshop for the Superintendents, Deputy Superintendents, and Assistant Superintendents, of all the jails in Delhi. The Court asked the DSLSA to create a specialised module for the Superintendents, focusing on their duties and obligations, and the rights of prisoners.
The order has come in a criminal writ moved by a prisoner who was illegally detained in the prison despite being granted bail by the competent court.
[Case: Sanjay Singh v. GNCTD]
Orders Relating to COVID-19
19. 'Lockdown Prima Facie In Nature Of Force Majeure' : Delhi HC Stays Bank Guarantees' Invocation
A Single Bench of Justice C. Hari Shankar held that lockdown is "prima facie in the nature of a force majeure" and passed an interim order restraining the invocation of bank guarantees.
"We are placed, today, in uncomfortably peculiar circumstances. A pandemic, of the nature which affects the world today, has not visited us during the lifetime of any of us and, hopefully, would not visit us hereinafter either. The devastation, human, economic, social and political, that has resulted as a consequence thereof, is unprecedented. The measures, to which the executive administration has had to resort, to somehow contain the fury of the pandemic, are equally unprecedented. The situation of nationwide lockdown, in which we find ourselves today, has never, earlier, been imposed on the country. The imposition of the lockdown was by way of a sudden and emergent measure, of which no advance knowledge could be credited to the petitioner – or, indeed, to anyone else," the order stated.
[Case: M/S Halliburton Offshore Services Inc v. Vedanta Limited & Anr.]
20. Employees Can't Seek Enforcement Of Normal Employment Terms When The Country Is Going Through Abnormal Times: Delhi HC
In a plea moved by civilian cooks of the Air Force challenging the revised terms of employment brought into force due to COVID19, the Division Bench of Justice Rajiv Sahai Endlaw and Justice Asha Menon observed that the employees cannot seek enforcement of employment terms as in normal time, when the entire country is going through abnormal times.
The Bench reiterated that the civilian cooks have to follow the roster of 14+14+7 i.e. for the first 14 days they are kept in quarantine; for the next 14 days they are made to work as cooks and thereafter they are given 7 days at home in which they visit their respective residences and thereafter again report and the roster of 14+14+7 again commences.
The court said, "The members of the petitioner though having surety of employment are making grievances of inconveniences allegedly being suffered by them, again forgetting that the members of the petitioner, as cooks, if permitted to return to their respective residences after duty hours every day, are likely to bring with them the Covid-19 infection, when reporting back for duty, endangering the personnel of the Air Force."
[Case: All India Air Force Civilian Cooks Association & Anr. v. Union of India & Ors.]
21. Schools Are Justified In Charging Tuition Fee For Conducting Online Classes: Delhi HC Holds While Refusing To Intervene In DoE's April 17 Order
A Division Bench of Chief Justice DN Patel and Justice Hari Shankar rejected the plea seeking a direction to the Directorate of Education asking it to prohibit schools from charging even the tuition fee during lockdown period. The bench noted that the charging of tuition fee is justified as schools are organising online classes, providing study materials, and paying staff salaries.
"While there can be no cavil, to the proposition that the requirement of payment of school fees would, necessarily, become enforceable only where the fees are payable, i.e., where the parents are physically in a position to pay the school fees, we cannot agree that, during the period of lockdown, or during the period when online education is being provided by the schools, and availed of, by students, tuition fees should be exempted. So long as schools are disseminating education online, they are certainly entitled to charge tuition fees," the Court stated.
[Case: Naresh Kumar v. Directorate of Education & Anr.]
22. Full Bench Order On Extension of Parole In Light of COVID19 Applies To Both Parole Granted By Jail And By The Court: Delhi HC
The Single Bench of Justice Anup Jairam Bhambhani clarified that no distinction can be created between prisoners who were released on parole by the jail authorities and those who were granted parole by the court, for availing the benefits of the extension order passed by the Full Bench of the court. It was noted that if such a distinction is created then the entire exercise of decongesting prisons, undertaken in compliance with the Supreme Court's directions, would be rendered futile.
The order has come in a plea moved by a prisoner seeking extension of his parole which was granted by the jail authorities and not by the court.
[Case: Pradeep v. State of Delhi]
Orders Relating to Delhi Riots
23. Delhi Riots: Damning Observations In Court Orders Raise Questions Over Delhi Police Probe
The Delhi High Court and the courts at Delhi have granted bail to several arrested persons after raising serious doubts at the police investigation. In some cases, the court noted that the accused persons were only doing peaceful protests against CAA and that there was no evidence of violence. LiveLaw has carried a separate report analysing how the Court orders in riots cases shake the credibility of Delhi police probe, which may be Read Here.
Evidence Act
24. Question On Admissibility And Proof Of Electronic Evidence Shall Be Decided By Trial Court At The Stage Final Adjudication
Delhi High Court has held that the affidavit under section 65B of the Evidence Act is not to be treated as a document and can be exhibited along with the examination in chief of a witness. The Single Bench of Justice Prathiba M Singh noted that the question as to whether the affidavit under section 65B, which is the electronic evidence, has been proved in accordance with law or not, shall be decided by the trial court at the stage of final adjudication.
In the present plea, the Petitioner had challenged the trial court order dated 19/07/18, wherein the affidavit under section 65B was taken on record and was considered a part of the examination in chief of the witness. The Petitioners had submitted that while they were not contesting the exchange of emails, that had an issue with the content of such emails and the authority of the person sending it.
[Case: M/S Safeguard Industries v. Rajinder Kumar]
25. Evidence Collected In Breach Of Right To Privacy Alone Doesn't Make It Inadmissible: Delhi HC
In a significant judgment pertaining to rules for collection and admissibility of evidence, the single bench of Justice Anup Jairam Bhambhani held that evidence collected in breach of the fundamental right to privacy alone, would not make it inadmissible in court of law. The court said that while a litigating party certainly has a right to privacy, that right "must yield" to the right of an opposing party to bring evidence it considers relevant to court, to prove its case.
The evidence in question purported to an CD containing an audio-video recording of the wife supposedly speaking with her friend on phone and talking about the husband and his family in a derogatory manner. The wife had opposed the CD being brought on record on the ground that, the contents of the CD were not admissible in evidence since they were a recording of a 'private' conversation that the wife had had with a friend, which had been secretly recorded by the husband, without the knowledge or consent of the wife, in breach of her fundamental right to privacy.
Rejecting this submission, the court observed, "Since no fundamental right under our Constitution is absolute, in the event of conflict between two fundamental rights, as in this case, a contest between the right to privacy and the right to fair trial, both of which arise under the expansive Article 21, the right to privacy may have to yield to the right to fair trial."
[Case: Deepti Kapur v. Kunal Julka]
Arbitration
26. Limited Scope Of Interference With An International Commercial Arbitration
In a significant ruling while discussing the scope of judicial interference with awards of an international commercial arbitration, the Delhi High Court dismissed a German manufacturer's claim for damages against BHEL, India. "the scope of interference for International Commercial Arbitration, in India, subsequent to the amendment of Section 34 of the Act, has been narrowed down and even patent illegality is no longer a ground available to challenge International Commercial Award passed in India," the single-Judge bench of Justice Sanjeev Narula held.
In the backdrop, the German manufacturer had assailed the award passed by the Arbitral Tribunal constituted under International Dispute Resolution Centre ('IDRC'), London, whereby its claim for damages was declined. The manufacturer, who claimed to have always been ready and willing to supply goods, had sought manufacturing and storage charges, stating that BHEL had refused to take delivery, in breach of Clause 25 of the Purchase Order. During the proceedings, whereas the Tribunal by way of a Partial Final Award (PFA) held that BHEL was in breach the PO, in the Final Award it refused to award damages in favour of the manufacturer. The Tribunal observed that after passing of the PFA, the manufacturer had failed to prove the loss suffered by it, in order to be entitled to claim damages.
[Case: G+H Schallschutz GMBH v. M/S. Bharat Heavy Electricals Ltd.]
27. Arbitration- Time Limit Enhanced Under Section 29A Applicable To Proceedings Pending As On Date Of 2019 Amendment
The Single Bench of the Delhi High Court, Justice J R Midha held that the time limit for completion of arbitration proceedings, enhanced by amending Section 29A(1) of the Arbitration and Conciliation Act 1996 through the 2019 amendment is applicable to the arbitrations pending as on the date of the amendment. The unamended Section 29A(1) of the Arbitration and Conciliation Act, 1996 provided a period of 12 months for the conclusion of arbitration proceedings from the date the Arbitral Tribunal enters upon the reference. Section 29A(1) was amended with effect from 9th August 2019 and the time period for conclusion of arbitration proceedings have been extended up to 12 months from the date of completion of pleadings.
[Case: Shapoorji Pallonji & Co. Pvt. Ltd v. Jindal India Thermal Power Ltd.]
28. Limitation Period Applies To Application Filed Under Section 8 Arbitration & Conciliation Act
The Delhi High Court has held that the provision for filing written statements under section 8 of the Arbitration and Conciliation Act is governed by the law of limitation. The Single Bench of Justice Prathiba M Singh has ruled that the period of limitation provided for filing written statements in CPC and Commercial Courts Act, 2015, would also apply to written statements filed under section 8 of the Arbitration and Conciliation Act.
The present ruling has come in a case where maintainability of an application under section 8 of the Arbitration & Conciliation Act was a disputed issue.
[Case: SSIPL Lifestyle Pvt. Ltd. v. Vama Apparels (India) Pvt. Ltd. & Anr.]
29. 'Constitution Of Separate Arbitral Tribunals A Mischief' : Delhi HC Issues Series Of Directions To Avoid Multiplicity Of Arbitration Proceedings
In order to curb the mischief of parties constituting multiple arbitral tribunals, the Single Bench of Justice Prathiba M Singh has passed a series of directions after relying upon the judgment of the Supreme Court in Dolphin Drilling Ltd. v. ONGC. One of the directions stipulate that the parties approaching the Court ought to disclose whether there are any other proceedings pending or adjudicated in respect of the same contract or series of contracts and if so, what is the stage of the said proceedings and the forum where the said proceedings are pending or have been adjudicated. Read further for full directions.
[Case: Gammon India Ltd. & Anr. v. NHAI]
30. Arbitration: 2019 Amendment To Section 29A Timeline Has Retrospective Effect From 23 October 2015, Holds Delhi HC
Infusing clarity on the applicability of the amended Section 29A of the Arbitration and Conciliation Act, 1996, the Single Judge bench of Justice V Kameswar Rao has found that the amendments to Section 29A (1) in 2019, fixing the 12 month time frame from the completion of pleadings and excluding international commercial arbitrations in India from its scope are "retrospectively applicable to arbitration proceedings commenced after 23 October 2015."
The Court predicated this conclusion on the following reasons:
- BCCI (supra) has found Section 29A to be procedural in nature and there is no stipulation akin to Section 26 of 2015 Amendment in the 2019 Amendment;
- In light of settled judicial precedents, Section 29A prescribing time limit is a procedural law is it does not confer any rights or liabilities on a party. Rather, it establishes a mechanism for the Arbitral Tribunal to render the award, which determines rights and liabilities in 12 months
[Case: ONGC Petro Additions Ltd v. Ferns Construction Co. Inc]
31. Appeals To Commercial Appellate Division Lie From Orders Passed Under HC Rules
A bench of Chief Justice DN Patel and Justice C Hari Shankar examined the scope of Appellate Jurisdiction of the Commercial Courts and held that under Section 13 of the Commercial Courts Act, 2015, any person aggrieved by the judgment/ order of a Commercial Division of a High Court may prefer an appeal to the Commercial Appellate Division of that High Court (within a period of 60 days) against such Judgments/ Orders that are specifically enumerated under Order 43 of CPC or are passed under Section 37 of the Arbitration and Conciliation Act, etc.
[Case: D&H India Ltd. v. Superon Schweisstechnik India Ltd.]
Orders where Court issued Guidelines
32. Delhi High Court Orders Execution Of Guidelines Framed For Inter-State Arrests By Police
The Delhi High Court has issued guidelines that must be followed by the police of one State, when they go to some other State or Union Territory, to effect an arrest while investigating a complaint or a First Information Report (FIR) disclosing a cognisable offence. A Division Bench of Justice Muralidhar and Justice Talwant Singh has asked Delhi Police to implement the recommendations given by a Committee headed by Justice SP Garg which was constituted by the court to look into the issues involved in the present matter.
The present case involved a habeas corpus petition filed under Article 226 of the Constitution, where the Petitioner Sandeep Kumar had asked the court to issue directions to the police to produce his wife, Nisha, before the court.
33. Delhi HC Issues Directions To Ensure That Victim Is Issued Notice In All Bail Proceedings Concerning POCSO Cases
The Single Bench of Justice Prathiba M Singh issued a series of directions to ensure that the Sessions Court comply with the court's various orders which mandates that notice must be issued to the complainant in all bail proceedings concerning POCSO cases. The Court has ordered that the District Judges shall inform and sensitise all the presiding officers of the importance of compliance of the mandatory condition of issuing notice to the complainant/victim/informant, and the legal position in this regard.
The court ,in its judgement, said, "Suffice to say, that the lockdown period has thrown up several challenges to the Court system which Courts are bracing for on an everyday basis. However, the non-issuance of notice to the complainant/victim/informant is such a fundamental pre-condition, that such a requirement of law cannot be bypassed, ignored or neglected." The court also made it clear that any non-compliance of the mandatory condition of issuance of notice and service of notice to the complainant/victim/informant could entail consequential action, in accordance with law.
Access full report for the directions
[Case: Miss G v. GNCT of Delhi & Anr.]
Orders pertaining to Court Filings
34. Filing Of Status Reports In Criminal Cases: Delhi High Court Asks Prosecuting Agencies To Follow The Model Form Issued By Gujarat HC
A Bench of Justice Suresh Kumar Kait directed the prosecuting agencies to file proper status reports in criminal cases, containing all the details relevant for deciding the bail applications filed therein, and etc. It directed the agencies to follow the guidelines issue by the Gujarat High Court in Thakore Laxmanji v. State of Gujarat: MANU/G/J/0267/1992, so as to ensure that orders are passed by the Courts after being fully aware of the matter.
Read full report to view the mandatory requirements.
[Case: Mohd. Danish v. GNCTD]
35. Delhi High Court (FB) Mandates Filing Of Convict's Income Affidavit & Victim Impact Report To Determine Compensation U/S. 357 CrPC
Holding that Section 357(3) of CrPC for payment of compensation to victims is a mandatory provision, a Full Bench comprising of Justices JR Midha, Rajnish Bhatnagar and Brijesh Sethi issued directions to the Trial Courts to take steps to implement the same. Section 357(3) empowers the Court to award compensation to victims who have suffered by the action of the accused.
It observed that the provision was enacted to reassure the victims that they are not "forgotten" in the criminal justice system. The Bench remarked, "Victims are unfortunately the forgotten people in the criminal justice delivery system. Victims are the worst sufferers. Victims‟ family is ruined particularly in cases of death and grievous bodily injuries. This is apart from the factors like loss of reputation, humiliation, etc. The Court has to take into consideration the effect of the offence on the victim's family even though human life cannot be restored but then monetary compensation will at least provide some solace."
Access full report to read directions.
[Case: Karan v. State NCT of Delhi]
36. Delhi HC Frames Formats Of Assets And Income For Disclosure Of Judgment Debtor's Financial Capacity, Asks Centre To Consider Incorporating In Statute
Bench of Justice JR Midha laid down guidelines for expeditious hearing and disposal of execution cases stating that the delays and difficulties in execution of decree/awards erode public confidence and trust in the justice delivery system and also frustrate the decree holder(s) who are unable to reap the benefits of the decree/award awarded in their favour after a successful litigation.
The Court also formulated detailed formats of affidavit of assets, income, expenditure and liabilities to be filed by the judgment-debtor in execution cases on direction of the Executing Court. The same may be accessed in the original report.
Moreover, the Court suggested the Central Government to mandate the filing of such affidavit(s) by the judgment debtor at the very threshold of the execution litigation, as is the practice in developed countries.
[Case: M/S Bhandari Engineers & Builders Pvt Ltd v. M/S Maharia Raj Joint Venture & Ors]
37. Delhi HC Modifies Format Of Assets, Income And Expenditure To Be Filed By Parties To A Matrimonial Litigation
Single bench of Justice JR Midha modified the format of assets, income and expenditure that has to be filed by both the parties, at the very threshold of matrimonial litigation. Filing of comprehensive format of assets, income and expenditure in matrimonial cases is essential to determine the maintenance, the Court observed. The detailed format may be accessed in the original report.
Moreover, the Court suggested the Central Government to mandate the filing of such affidavit(s), as is done in the developed countries.
[Case: Kusum Sharma v. Mahinder Kumar Sharma]
38. Writ Petition Relation To Industrial Dispute To Not Be Listed Unless 'Exceptional Circumstances' Disclosed In Synopsis, Opening Paragraphs: Delhi HC
The Bench of Justice JR Midha held that a writ petition relating to an industrial dispute shall not be listed unless it discloses 'exceptional circumstances' in the synopsis and in its opening paragraphs.
The Court was hearing the writ petitioners' challenge to the retrenchment of 297 employees by the Press Trust of India on 29th September, 2018. The petitioners sought the quashing of the retrenchment notices, their reinstatement with back wages and consequential benefits. The preliminary issue was whether the writ petitions should be entertained in view of the statutory remedy available to the retrenched employees under the Industrial Disputes Act.
[Case: PTI Employees Union v. Press Trust of India]
Service/ Pension
39. Administrative Tribunal Not An 'Alternative', But The 'Only' Forum For Service Matters: Delhi HC
The bench of Justice Jyothi Singh held that in service matters the High Court lacks original jurisdiction under Article 226 of the Constitution.
Placing reliance on the landmark apex court decision in L.Chandra Kumar v. Union of India (1997) 3 SCC 261, the Court observed that , "It is clear that after the authoritative pronouncement of the Constitution Bench of the Supreme Court, this Court cannot entertain the present petition and remedy of the Petitioner lies only before the Central Administrative Tribunal.
The Court further asserted that, "There cannot be a doubt on the proposition canvassed by Learned Senior Counsel that jurisdiction conferred on High Courts under Article 226 of the Constitution of India is an inviolable basic framework of our Constitution, however, with respect to service matters of the employees covered under the Act, High Courts cannot exercise jurisdiction in the first instance. As enunciated by the Supreme Court, all decisions of the Tribunal are subject to scrutiny by a Division Bench of the concerned High Court and it is at this stage that High Court exercises its power of Judicial Review "
[Case: Prabhat Ranjan Deo v. Union Public Service Commission & Ors.]
40. Spouses of Deceased Casual Labourers Are Also Entitled To Pension Given To Regular Employees: Delhi HC
Delhi High Court has held that the spouses of deceased casual workers would be entitled to the same pensionable and retiral benefits as those given to regular employees. While relying on the catena of judgments of the same court and other High Courts, the Division Bench of Justice Muralidhar and Justice Talwant Singh observed that benefits shall be allowed in the present case, as the casual workers were not regularised for years despite the availability of vacancies.
The present appeal was filed by the Union of India against an order passed by the Central Administrative Tribunal, granting relief to the spouses of deceased casual labourers.
[Case: Union of India v. Munni Devi]
Orders pertaining to Army
41. No Interference With Govt Conclusion That Use Of Social Media By Army Personnel Enables Enemies To Gain Edge: Delhi HC
While dismissing a petition challenging the ban on army officers using social media, the bench comprising Justices Rajiv Sahai Endlaw and Asha Menon observed that scope of judicial review over matters concerning defence and security is limited.
The Court noted that modern-day warfare is not just limited to accession of territory, but also extend to influencing economy and political stability of the enemy country by inciting civil unrest and influencing the political will of citizens.
[Case: Lt. Col. P.K. Choudhary v. Union of India & Ors.]
42. Indian Army's Rule Of Spousal Postings Not Mandatory, Subject To Availability Of Vacancies: Delhi High Court
The Court held that the Indian Army's Rule on "Spousal Postings" is not mandatory and is subject to availability of vacancies for both spouses at the same station.
"The Rule requiring endeavor to be made to post both spouses, especially with young children, at the same station, is not mandatory and is subject to availability of vacancies for both spouses at the same station," a Division bench comprising of Justices Rajiv Sahai Endlaw and Asha Menon observed.
The order has come in a writ petition filed by Col. Amit Kumar, seeking directions for posting at the same station as his wife till their child is of young age. Whereas presently both of them were posted at Jodhpur, their new posting orders propose to post the Petitioner at Andaman and Nicobar and his wife at Bathinda.
[Case: Col. Amit Kumar v. Union of India & Ors.]
43. Opinion Of Doctors Of Armed Forces To Prevail On Question Of Physical Fitness Of Candidates: Delhi High Court
The High Court made it clear that the opinion of doctors of the Armed Forces shall prevail over that of private or other government doctors on the question of an applicant's physical fitness. It therefore rejected a plea by an aspirant of the Central Armed Police Forces, alleging that there was no specialist in the Review Medical Board constituted by the Armed Forces and that she had been wrongly declared unfit.
The vacation bench of Justices Rajiv Sahai Endlaw and Asha Menon said that, as the standard of physical fitness for the forces is more stringent than for civilian employment, "Once no mala fides are attributed and the doctors of the Forces who are well aware of the demands of duties of the Forces in the terrain in which the recruited personnel are required to work, have formed an opinion that a candidate is not medically fit for recruitment, opinion of private or other government doctors to the contrary cannot be accepted inasmuch as the recruited personnel are required to work for the Forces and not for the private doctors or the government hospitals and which medical professionals are unaware of the demands of the duties in the Forces."
[Case: KM Priyanka v. Union of India & Ors.]
44. Delhi HC Directs Extension Of Pro Rata Pension To Non-Commissioned Officers of Defence Services As Well
A Single Bench of Justice Rajiv Sahai Endlaw ruled that the non-commissioned officers of the defence forces are also entitled to the pro rata pension, which is currently only given to commissioned officers. While holding that such exclusion is discriminatory, the Court directed the Union Ministry of Defence to ensure that pro rata pension is now given to non-commissioned officers as well
[Case: Brijlal Kumar & Ors. v. Union of India & Ors.]
Orders relating to Criminal Matters
45. "High Court Cannot Exercise Power Under Section 482 CrPC When There Exists A Remedy Of Statutory Appeal Under Section 29 Of Domestic Violence Act": Delhi HC
A single judge Bench of Justice Jyoti Singh held that High Court cannot entertain the petition in its extraordinary power under Section 482 Cr.PC when there is a clear remedy of Appeal under Section 29 of the Protection of Women against Domestic Violence Act. "It is not open to the aggrieved party to bypass the remedy of Appeal under the Act, which is a complete Code in itself," Justice Singh emphasized.
Justice Singh noted that "a profound reading of several judgments (of the Supreme Court) shows that the Court has time and again spelt out clear restraints on use of extraordinary powers and observed that High Courts should not go beyond those wholesome inhibitions, unless the extraordinary circumstances cry for immediate and timely judicial interdiction or mandate. As the quote goes in one of the judgments 'Mentor of law is justice and a potent drug should be judicially administered.'"
[Case: Sirisha Dinavahi Bansal v. Rajiv Bansal]
46. An Accused Cannot Be Arrested In Any Case Till A Request For Extradition Is Merited: Delhi HC
The bench of Justice Vibhu Bakhru observed that an accused cannot be arrested in any case till a request for extradition is merited. The observation was made by the high court while disposing of a writ filed by Mr. Vinay Mittal who had been charge-sheeted in seven separate cases for siphoning of funds from the Punjab National Bank, by the CBI, and had fled from India.
The Petitioner was extradited from Indonesia in connection to one case while extradition requests for remaining six cases were pending. He had thus contended that his arrest in India for the other 6 cases wherein the Extradition requests are pending, are illegal and in violation of Section 21 of the Extradition Act, 1962.
[Case: Vinay Mittal v. Union of India & Ors.]
47. Police Officials Interested In Result Of Case Projected By Them: Delhi High Court Recommends Corroboration Of Their Testimonies With Public Witness
A Bench comprising of Justices Rajnish Bhatnagar and Vipin Sanghi said that Police officials are "interested" in the conclusion of criminal case, so projected by them, and therefore, there testimonies should be corroborated by some independent evidence.
"We are aware that there is no rule of law or evidence, which lays down that unless and until the testimony of the police official is corroborated by some independent evidence, the same cannot be believed. But it is a Rule of Prudence, that a more careful scrutiny of the evidence of the police officials is required, since they can be said to be interested in the result of the case projected by them," the Court said.
[Case: Mustakeem v. GNCTD]
48. An HIV Positive Patient Can't Be Punished For 'Attempt To Murder' For Sex Without Woman's Consent: Delhi High Court
A Bench of Justice Vibhu Bakhru ruled that an HIV positive patient can't be convicted for an offence punishable under Section 307 of the IPC (attempt to murder), if he had sexual intercourse without woman's consent. It clarified that unprotected sexual engagement by an HIV positive person, when such a person is aware of the nature of his disease; he is liable to be punished under Section 270 of the IPC.
"The Trial Court has proceeded on the basis that the act of a penetrative sexual intercourse by a person who is HIV positive is likely to cause death to the receptive partner. This is based on two assumptions. First, that such sexual intercourse is most likely to transmit the disease to the healthy partner; and second, that on transmission of the disease, the partner so infected is likely to die. However, both the said assumptions, are without basis and without any scientific evidence, to support the same," the Bench observed.
An FIR was registered in the year 2011 against the Accused/Appellant, pursuant to the statement made by a girl (aged about fifteen years at the material time). She had alleged that the appellant/accused – who is her step father (an HIV Positive Patient) – had forcibly raped her multiple times. The appellant was charged with committing offences punishable under Section 307/313/376 of the IPC. He was tried and convicted by the Trial Court. The Trial Court reasoned that since the appellant was aware that his acts could result in transmitting the potentially lethal disease, he had knowingly committed an act, which if resulted in transmitting of HIV and consequently, the death of the victim from that disease, it would amount to murder.
[Case: Sabhajeet Maurya v. State NCT of Delhi]
49. Rape-Marriage Promise Can't Be Called Inducement When Sexual Activity Continues Over Indefinite Period Of Time: Delhi High Court
"A promise of marriage cannot be held out as an inducement for engaging in sex over a protracted and indefinite period of time", remarked single bench of Justice Vibhu Bhakru while dismissing the appeal filed by a woman against Trial Court's Judgment after an inordinate delay of six hundred and forty days.
In this case, an FIR was registered under Sections 417 and 376 of IPC against a man by the appellant (woman). After listening to the testimony of the complainant, the Trial Court concluded by saying that the physical relationship that had been established between the prosecutrix and the accused had been consensual in the first instance her consent for physical relations had not been obtained by the accused by making any promise of marriage to her. After appealing her case, the High Court noted, "Her allegation that her consent has been vitiated on account of having been obtained by misrepresentation, is clearly, unsustainable." Accordingly, the appeal was dismissed on the basis that it was unmerited as well as on grounds of delay.
[Case: X v. State (Govt. Of NCT Of Delhi)]
50. Delhi HC Refuses To Stay FIRs Registered Under Triple Talaq Law, Says Prima Facie, Criminalisation Acts As A Deterrent Against Triple Talaq
The Division Bench of Justice Vipin Sanghi and Justice Rajneesh Bhatnagar noted that as per its prima facie view, merely because triple talaq has been declared to be void and illegal, it does not mean that the legislature could not have made the continuation of such practice, an offence.
The Court further observed that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019, is to discourage the age old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat i.e. triple talaq.
[Case: Nadeem Khan v. Union of India & Ors.]
51. Common Order For Summoning In Different Cases Cannot Be Passed When Parties Are Unrelated: Delhi High Court
A Single Bench of Justice Anu Malhotra made it clear that a common order for summoning Respondents, in different cases filed by a common Petitioner, cannot be passed when the Respondent parties are unrelated. It thus quashed a common summoning order passed by the Metropolitan Magistrate in three cases, cases wherein the Complainant i.e., Kanika Investments Ltd. was same but the accused were different.
[Case: Vikas Bajaj & Anr. v. M/s Kanika Investments Ltd.]
Orders Relating to Education & Examinations
52. Doctrine of Promissory Estoppel Doesn't Apply To Education: Delhi HC Refuses to Quash National Board of Examination's Decision to Extend the Training Period of Medical Students
Noting that the doctrines of promissory estoppel and legitimate expectation do not apply to matters of education, Justice Asha Menon refused to set aside National Board of Examination's (NBE) decision to extend the completion of the training period of the final year students of Diplomate of National Board (DNB). While holding that NBE is an independent body which is not bound by the Advisories of MCI, the Court observed that just because the MCI has exempted their D.M. and M.Ch. trainees from detention for extended training, the NBE is not bound to follow suit to similarly exempt the DNB trainees who are in super-speciality. Therefore, the court observed, NBE is vested with supervening powers which include the extension of training period in extraordinary or special circumstances.
The contention raised in this case was that the NBE had no powers vested in it to vary the training period, which has been in a discriminatory manner as it pertains only to the final year students and not to the first and second year students. While citing that the disputed notice suffers from uncertainty as it uses the phrase 'till further orders', the Petitioners submitted that the said extension of training period seriously affected their careers as they could not take up job offers from various hospitals.
[Case: Dr. Devyesh J. Pathak & Ors. v. National Board of Examination & Ors.]
53. CSE Rule Declaring Persons Who Had Undergone Organ Transplant Unfit For Selection Is Archaic
Delhi High Court has held that the candidature of a Delhi Judicial Services aspirant cannot be rejected on the ground that he had undergone a renal transplant. While directing against the rejection of the candidature, the Division Bench of Justice Vipin Sanghi and Justice Sanjeev Narula opined that the provision in Civil Services Examination Rules which declare persons having transplanted organs as unfit for candidature, as an archaic provision.
In the present case, the Petitioner had cleared the Delhi Judicial Services Exam and was subsequently called for medical examination. Upon conducting the said medical examination, the candidature of the Petitioner was rejected on the ground that he had undergone a renal transplant, which disqualifies him under Clause 17 of Appendix III of the Civil Services Examination, (CSE) Rules. The aforesaid Clause 17 states that all candidates having transplanted organs should be declared "unfit", except corneal transplant. It is on the basis of the said clause, that the RML Hospital declared the Petitioner as 'unfit' as he had undergone a renal transplant in 2015.
[Case: Udbhav Kumar v. High Court of Delhi & Anr.]
54. Delhi HC Issues Guidelines To Streamline Medical Post Graduate Entrance/ Admission Process
Single Bench of Justice Prathiba M. Singh issued directions/ guidelines to the Medical Counselling Committee to streamline the Post Graduate Entrance/Admission Process. Few of the guidelines are:
1.At the time of registration for counselling there shall be a specific field which candidates would be required to fill up with details of the college and the University from where they have completed their M.B.B.S. course
2. Upon the said field being incorporated, the system should be designed in such a manner that only those quotas for which the candidates are eligible would be made available to the candidates.
3. After registration, prior to allotment of seats, the data submitted by candidates shall be cross-verified with the data available with MCC so that wrong allotments are not made.
Access the full report for detailed guidelines.
[Case: Dr. Machat Balakrishnan Menon v. Medical Council Committee & Ors.]
55. 'Bridge The Digital Divide, End Digital Apartheid', Delhi HC Directs Schools In Delhi To Provide Adequate Gadgets and Internet Package To EWS Students For Attending Online Classes
Division Bench of Justice Manmohan and Justice Sanjeev Narula has directed the private unaided schools and government schools to provide adequate gadgets and internet packages to students under Economically Weaker Section (EWS) and other Disadvantaged Groups (DG) in order to enable them to have an equal access to virtual classes which are being organised by schools in light of COVID19 lockdown.
The Court observed, "the private schools which are providing Synchronous Face-to-Face Real Time Online Education are the very same neighborhood schools which satisfy all the requirements of RTE Act, 2009. Hence, the teaching through online means is in accordance with RTE Act, 2009 requirements. Therefore, both the requirements of Article 21A and Section 3 of RTE Act, 2009 are clearly fulfilled even in respect of education being imparted through online means."
[Case: Justice For All v. Govt. of NCT of Delhi and Ors.]
56. People With Mental Illness Can't Be Discriminated In Matters Of Employment: Delhi HC Declares A Candidate With Bipolar Disorder Is Fit For Judicial Service
A Delhi High Court bench of Justices Vipin Sanghi and Sanjeev Narula stated that the High Court cannot discriminate against any person with disability in any matter relating to employment. Further, it has no competence to take a decision on the issue whether the post of a Judicial Officer should be exempted from the rigor of Section 20(1) (RPwD Act, 2016), having regard to the type of work carried out in the establishment of the judicial service. This decision rests with the appropriate Government.
While deciding in favour of the petitioner, the Bench observed, "The respondent, firstly, cannot discriminate against any person with disability in any matter relating to employment. Secondly, it has no competence to take a decision on the issue whether the post of a Judicial Officer should be exempted from the rigor of Section 20(1) (RPwD Act, 2016), having regard to the type of work carried out in the establishment of the judicial service. This decision rests with the appropriate Government".
[Case: Bhavya Nain v. Delhi High Court]
57. Differential Treatment Between BCA Degrees Obtained From Open Universities And From Traditional Universities Violates Article 14, Holds Delhi HC
The Delhi High Court has held that BCA qualification acquired either from an Open Distance Learning (ODL) institution or from a traditional institute/college will be treated at par. Justice Rajiv Shakder made the observations while disposing of two petitions filed by students who had been "debarred" by Guru Gobind Singh Indraprastha University from attending classes for the MCA program at their respective colleges for having pursued their BCA degrees from ODL institutions.
While relying on Abdul Motin v. Manisankar Maiti, (2018) 16 SCC 533, the Court stated, "denial of employment to a candidate on the ground that he had acquired his qualification through an ODL institution drives home the point that exclusion of persons from access to higher education only on the ground that they had acquired their qualification from a non-formal sector (i.e. ODL institutions) was unfair."
[Case: Mo. Kareem v. Guru Gobind Singh Indraprastha University & Ors.]
Orders Related to Media
58. Media Can't Run Parallel Trial: Delhi HC Directs Arnab Goswami To Exercise Restraint In Tharoor's Plea For Seeking Injunction Against Defamatory Broadcasting
The Delhi HC has directed Arnab Goswami to exercise restraint and to 'bring down the rhetoric', till the pleas moved by Tharoor seeking injunction against allegedly defamatory broadcasting on Sunanda Pushkar case is disposed of. The Single Bench of Justice Mukta Singh highlighted that the media should refrain from conducting parallel trials or from calling someone guilty or from making insubstantial claims while the case is pending in the court.
The Bench observed, "The sanctity of an investigation and evidence has to be understood and respected." The court condemned the claims of having firm evidence against Tharoor made by Arnab's counsel and emphasized on the fact that the press has to exercise caution and care while reporting criminal matters that are under investigation. Non-following of orders would call for consequences, the court iterated.
59. Delhi High Court Restrains Republic TV From Using Trademark "News Hour", Allows Using Tagline "Nation Wants To Know"
The Single Bench of Justice Jayant Nath granted interim relief to 'Times Now' channel by restraining 'Republic TV' from using the tagline 'NEWS HOUR' or any other mark that may be deceptively similar to it for its primetime debate show.
The Times Group had been using the said expression since 2006 when its programme titled "News Hour" was launched and it was argued that the mark has attained "distinct identity" to differentiate the company's programmes amongst others in the industry.
The Court was also of the opinion that "if the defendants' trade mark is deceptively similar to that of the plaintiff, mere addition of a word by the defendants to the trade mark is of no consequence and the plaintiff is entitled to succeed in its action for infringement of its trade mark."
At the same time, the Court did not allow Times Group's plea to restrain Arnab Goswami and his company, ARG Outlier Media Pvt Ltd., from using the tagline "NATION WANTS TO KNOW". Whereas the Plaintiff company had argued that the expression was used by it as a trade mark, the Court held that the same can be decided only after evidence is completed between the parties.
[Case: Bennett Coleman & Co. Ltd. v. ARG Outlier Media Pvt Ltd & Ors.]
60. 'Media Should Exercise Restraint, Follow Programme Code', Delhi HC Directs In Rakul Preet Singh's Plea Against Broadcasting Of Maligning Campaign Against Her
In a plea moved by Bollywood actor Rakul Preet Singh against the broadcasting of allegedly defamatory and maligning campaign against her in connection with the Bollywood Drug case, the High Court directed the media channels to exercise restraint in their reports and follow the Programme Code and other guidelines, both statutory and self-regulatory.
A Single Bench of Justice Navin Chawla further directed the News Broadcasters Association to consider Rakul's plea as a representation and expedite the process of redressal.
[Case: Read LiveLaw's Report]
Orders relating to Civil Matters
61. 'Mutual Will' Comes Into Effect On The Death Of Either Of The Joint Testators : Delhi HC
In a suit pertaining to a disputed Will, Justice Rajiv Sahai Endlaw has held that the rights in favour of the ultimate beneficiary under the mutual Will accrue on the demise of either of the executants and during the lifetime of the other executant of the mutual Will.
"The principle of, a mutual Will coming into effect and binding also the testator who may still be alive, on the death of one of the two testators, is well enshrined in the Indian Law", observed the Court.
[Case: Vickram Bahl & Anr. v. Siddhartha Bahl]
62. Public Institutions Should Make Their Orders Available Online As Part Of Good Governance: Delhi High Court
A single bench of Justice Pratibha M. Singh observed that all institutions, especially those providing services to the public, should make it a point to make all their orders, notices and other documents available online. The Court also stated that public departments such as the EPFO should have their orders and notices readily available online. The Court further added that the non-availability of such orders, especially during a Pandemic where all offices are operating in a virtual mode, is unjustified.
It also noted that having such orders readily available online would not result in petitions such as the present one being filed in a court, where the only goal of the Petitioner is to obtain the copy of an order from the concerned authority. "The availability of orders online would obviate the need for litigants to file petitions such as the present one wherein the only prayer is for making orders available," said the Court. They added that such an integration of technology to provide better services constitute a part of the good governance of the institutions.
[Case: M/S Civicon Engineering Contracting India Pvt. Ltd. v. Central Board Of Trustees & Ors]
63. Delhi HC Directs Centre To Publish Draft EIA Notification 2020 In 22 Official Languages Within 10 Days
Looking to the "far reaching" consequences of the public consultation process, a division bench of Chief Justice DN Patel and Justice Prateek Jalan directed the Central Government to publish the draft Environment Impact Assessment (EIA) notification, 2020 in all 22 official languages.
[Case: Vikrant Tongad v. Union of India]
64. If The Bidder is Not Technically Qualified, Tender Process Might Not Even Look Into The Financial Bid: Delhi HC
The Division Bench of Justice Vipin Sanghi and Justice Rajnish Bhatnagar held that the tender process can't be recalled just because the highest bidder was not given the tender. The court noted that if the bidder was not found to be technically qualified, his financial bid could not have been looked into at all.
The order has come in a writ petition seeking setting aside of the e-auction process undertaken by the South Delhi Municipal Corporation to allocate land for Multilevel Authorised Parking in South Delhi.
[Case: Lakhvinder Singh v. SDMC]
65. Doctrine Of Frustration Under Section 56 Of Contract Act Not Applicable To Lease Agreements: Delhi HC [Read Judgment]
Justice Prathiba M Singh held that the doctrine of frustration under Section 56 of the Indian Contract Act is not applicable to lease agreements. The ruling was based on SC precedents which held that Section 56 is applicable only to "executory contracts" and not to "executed contracts". A contract for lease whereunder the lessee obtains possession from the lessor is an executed contract, noted the HC.
The order had come up in an application which sought suspension of rent citing the COVID-19 lockdown. The application sought a suspension of the direction passed by the HC in 2017 to pay rent at the rate of Rs 3.5 lakhs per month for a property in Khan Market, New Delhi as a condition for staying the eviction order passed by the Rent Controller Court.
[Case: Ramanand v. Dr Gireesh Soni ]
66. No Legality Attached To Fatwa; Not Binding: Delhi High Court
A single judge bench of Justice Pratibha M. Singh held that there cannot be any legality or validity attached to a fatwa, especially in respect of ownership of immovable property, and such a declaration would not be binding on a third party. The Court was faced with a question whether rights in an immovable property can be legally and validly derived, on the basis of a fatwa issued by a maulvi. The Court held that fatwa does not satisfy the requirements of a legally binding document and that they do not trace their origin to validly made law.
In this case, a suit for possession and recovery of damages was filed by Petitioners in the lower court and their case was that they are the owners of the suit property and that they traced back their title to one Mst. Musharraf Begum through six registered sale deeds and a fatwa. The plea was opposed by the defendant, a tenant of the property, who claimed that the original owner, a lady, had made a declaration that after her death the tenants/occupants would become owners of the property.
[Case: Mohd. Ashraf & Ors. v. Abdul Wahid Siddique]
Orders Related to Special Acts
Narcotics
67. Search And Seizure Before Magistrate Under Section 50 Of NDPS Not Mandatory In All Cases
Delhi High Court has held that the requirement to conduct search and seizure before a Gazetted Officer/Magistrate under section 50 of NDPS is mandatory only when the accused requires such procedure to be carried out. The Single Bench of Justice Vibhu Bhakru has noted that if Section 50(1) of NDPS Act is read to mean that it is necessary in all cases that a search be conducted before a Magistrate or a Gazetted Officer, there would be no purpose in informing the suspect of his right to be searched before such officers.
[Case: Innocent Uzoma v. State]
68. Is Presence Of Magistrate During Search/ Recovery Of Contraband Articles Mandatory Under S. 50 Of NDPS Act: Delhi HC Refers Matter To Larger Bench
The Delhi High Court has referred the issue relating to procedure of recovery of contraband articles from an accused, under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to a larger bench. The issue relates to the mandatory presence of Magistrate during search/ recovery.
The matter was referred for consideration before a higher bench after Justice Suresh Kumar Kait noticed two contradictory judgments on the issue, rendered by single-benches of the High Court. In the case of Innocent Uzoma v. State, it was held that presence of Magistrate is contingent upon the desire of the accused. But, in the case of Vaibhav Gupta v. State however, the High Court had held that compliance of Section 50 of the NDPS Act is mandatory and even if the accused has denied the same, still the search has to be conducted in the presence of the magistrate or Gazetted Officer.
Noting the anomaly in the law, Justice Kait requested the Chief Justice of Delhi High Court to constitute a bench to decide the issue raised in the petition.
[Case: Nabi Alam alias Abbas v. State (Govt Of Nct Of Delhi)]
Banking
69. Advocates Can Be Appointed As Receivers U/S 14(1A) Of SARFAESI Act
The Delhi High Court held that there is no bar on appointment of an Advocate as a 'Receiver' under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act).
A Bench of Justice Rajiv Shakdher said that the District Magistrates and the CMMs were overburdened and thus, so long the discretion in appointing Advocates as receivers was exercised with due care and caution, the same could not be faulted. The court upheld the impugned order passed by the CMM, who had appointed an advocate to take possession of the secured assets.
[Case: Rahul Chaudhary v. Andhra Bank & Ors.]
70. Proceedings U/S 138 Of NI Act Not Maintainable Against Independent Non-Executive Directors Of A Company, Reiterates Delhi HC
The Delhi High Court reiterated that criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881, for dishonour of cheque are not maintainable against non-executive independent directors of a company.
The order passed by Justice Manoj Kumar Ohri relied on a Supreme Court judgment in Pooja Ravinder Devidasani v. State of Maharashtra & Anr., 2014(14) SCALE to highlight that for arraigning a director as an accused in criminal proceedings for dishonour of cheque, it must be shown that the director concerned was in charge of and was responsible to the Company for the conduct of its business.
[Case: Sunita Palta & Ors. v. M/s Kit Marketing Pvt Ltd.]
Elections
71. Delhi HC Upholds Validity Of The Provision Which Prohibits Prisoners From Voting In Elections
Delhi High Court refused to declare section 62(5) of the Representation of the People Act, which prohibits prisoners from voting in elections, as unconstitutional. While upholding the validity of the said provision, the Division Bench of Chief Justice DN Patel and Justice Hari Shankar has held that the classification of the persons who are in jail and who are out of jail is a valid classification and it has a reasonable nexus with the objects sought to be achieved by the Act.
'The right to vote is subject to limitation imposed by the statute. The right to vote is the statutory right, the law gives it and the law can take it away', the court opined. Therefore, the court upheld the validity of section 62(5) of the said Act by highlighting that right to vote is subject to the limitations imposed by the statute, which can be exercised only in the manner provided by the statute.
[Case: Praveen Kumar v. Election Commission of India]
72. Curbing Political Advertisements During Model Code of Conduct Doesn't Violate Freedom of Speech
Delhi High Court has held that the restrictions on political advertisements during the Model Code of Conduct does not violate either the freedom of speech or the freedom of carrying out trade. Justice Sanjeev Sachdeva has noted that the said restriction on commercial speech passes the test of reasonability as it is imposed for the larger public interest of conducting free and fair elections.
[Case: M/S EG. Communications Pvt. Ltd and Ors v. Election Commission Of India And Ors]
Competition
73. Monsanto Bt Cotton: Delhi HC Holds That CCI 's Jurisdiction To Hear Complaints Regarding Abuse of Dominance In Respect To Patent Rights Not Excluded
While highlighting that there's no conflict between the Patents Act and the Competition Act, the Single Bench of Justice Vibhu Bakhru held that the jurisdiction of the CCI to entertain complaints regarding abuse of dominance in respect to patent rights could not be excluded. The court further noted that the exclusionary clause under section 3(5) of the Competition Act cannot allow the patentee to include onerous conditions under the guise of protecting its rights.
The order has come in a plea moved by Monsanto Pvt Ltd, challenging the order passed by the Competition Commission of India under section 26 of the Competition Act, wherein Director General was directed to investigate complaints of abuse of dominant position by Monsanto in the Bt Cotton market.
[Case: Monsanto Holdings Pvt. Ltd. v. CCI & Ors.]
Corruption
74. Prevention of Corruption (Amendment) Act 2018 Will Not Affect Offences Committed Prior To Its Enactment: Delhi HC
The bench of Justice Vibhu Bakhru held that the Prevention of Corruption (Amendment) Act, 2018, so far as it substitutes Section 13(1)(d) of the principal Act, does not operate in a retrospective manner. The court held that the purpose for introducing the amendment was to ensure that the actions of a public servant that may appear to be against public interest but do not involve mens rea, are not construed as criminal misconduct. However he clarified that there was no requirement to give retrospective application to the Amendment Act as even the unamended provision entailed an element of "abuse".
[Case: Madhu Koda v. State through CBI]
75. 2018 Amendment To Prevention Of Corruption Act Has No Retrospective Effect: Delhi High Court
While rejecting the acquitted accused persons' plea in the 2G Scam case, Justice Brijesh Sethi observed that, ""Prevention of Corruption (Amendment) Act, 2018 does not reveal any intention of destroying the earlier provisions and there is no intention to obliterate the earlier law." The court said that there is no impediment in hearing the criminal leave to appeal, since the offences in question are alleged to have been committed prior to the coming into force of Prevention of Corruption (Amendment) Act, 2018.
[Case: CBI vs. A.Raja]
UAPA
76. It is Not Necessary That Every Case Under UAPA Should Be Investigated By NIA And Be Proceeded Before a Special Court: Delhi HC
"Just because UAPA is one of the enlisted enactments in the Schedule to the NIA Act, it does not follow that every offence under the UAPA has necessarily to be investigated by the NIA, and that the trial of such case necessarily has to proceed before the Special Court," the Division Bench of Justice Vipin Sanghi and Justice Rajneesh Bhatnagar held in an appeal against order for extension of judicial remand of an accused.
The order has come in a habeas corpus petition filed by Aqil Hussain seeking production of his sister who was arrested for allegedly participating in the Delhi riots. The Petitioner had submitted that despite being granted bail by the Magistrate for offences under IPC, the accused was not released as she could not be produced before a Special NIA court for charges under UAPA. The reason for such non-production was that during the lockdown, the Special NIA courts had ceased to function. Therefore, the Petitioner argued that the continued detention of the accused is illegal as she could not be produced before a Special Court due to their non-functioning.
[Case: Aqil Hussain v. State of NCT of Delhi & Ors.]
77. [UAPA] Accused Has Right To Oppose Police Plea For Extension Of Time For Completion Of Investigation Beyond 90 Days But Cannot Be Provided A Copy Of The Application: Delhi HC
A Bench of Justice Vibhu Bhakru observed that the accused has the right to oppose an application made for the extension of time in completing the investigation under Section 167 Cr.P.C. as modified by Section 43(D) (2) of the Unlawful Activities (Prevention) Ac, 1967 for investigating under UAPA.
"At the stage of extension of time for completion of investigation or extension of the period of detention in terms of the proviso to Section 167 Cr.P.C, the appellant cannot ask to see the reports ofPP. Those reports, like the case diary maintained under Section 174 CrPC, are to satisfy the court about the progress of investigation and justification for seeking extension of time to complete the investigation," the Court said.
[Case: Khalid v. State (Govt. of NCT of Delhi)]
POCSO
78. Presumption Under Section 29 of POCSO Act Cannot Arise At Stage Before Framing of Charges: Delhi High Court [Read Judgment]
The single Bench of Justice Anup Jairam Bhambhani, while discussing the legislative intent and applicability of "reverse burden" under Section 29 of the Protection of Children from Sexual Offences Act 2012 (POCSO) held that "the presumption of guilt engrafted in section 29 gets triggered and applies only once trial begins, that is after charges are framed against the accused but not before that."
Further it observed that the impact of Section 29, even after charges are framed, would only be to "raise the threshold of satisfaction" required before a court grants bail because, an accused does not get the opportunity to rebut the presumption or to prove the contrary by leading defence evidence, until prosecution evidence is concluded.
[Case: Dharmander Singh v. GNCTD]
Taxation
79. 90 Days Period Prescribed in Rule 117 Of CGST Rules Not Mandatory, Input Credits Can Be Availed Within 3 Years: Delhi HC
The Division Bench of Justice Vipin Sanghi and Justice Sanjeev Narula held that Rule 117 of CGST Rules, which prescribes 90 days for filing for transactional credits, is not mandatory in nature, but is merely directional. The period of three years, as prescribed in the Limitation Act, will now be considered as a reasonable period for availing such transactional credits.
The Court further noted that taxpayers cannot be robbed of their valuable rights on an unreasonable and unfounded basis of them not having filed TRAN-1 Form within 90 days, when civil rights can be enforced within a period of three years from the date of commencement of limitation under the Limitation Act, 1963. It stated, "The government cannot turn a blind eye, as if there were no errors on the GSTN portal. It cannot adopt different yardsticks while evaluating the conduct of the taxpayers, and its own conduct, acts and omissions. The extremely narrow interpretation that the respondents seek to advance, of the concept of "technical difficulties", in order to avail the benefit of Rule 117 (1A), is contrary to the statutory mechanism built in the transitory provisions of the CGST Act.
[Case: Brand Equity Treaties Ltd. v. Union of India & Ors.]
80. 'This Case Shows How Tax Dept. Miserably Falls Short of Expectation': Delhi HC Makes Serious Observations on "the Procedural Fallibility and Shortcomings" Of GST System
In a case of unlawful expropriation of Input Tax Credit, the bench of Justice Manmohan and Justice Sanjeev Narula made serious observations on "the procedural fallibility and shortcomings" of the GST system, even stating that the case demonstrates "how the tax department has miserably fallen short of the expectation".
The issue raised by the Petitioner was that an attempt was made to transition the available credit under the indirect tax structure, as prevailing in India prior to 1st July, 2017 (comprising multifarious duties and taxes imposed by the Centre as well as States), by filing Form TRAN-1. But the electronic credit ledger under the GST laws does not reflect the entire credit.
"The case before us is one where there is a complete lack of understanding and fairness on the part of the Tax Department. The fact that Respondents have done nothing to solve the problem faced by the Petitioner, fuelled with the adamant stand before us, contributes to scepticism of GST technical infrastructure, which we feel should and can be easily avoided. Only if Respondents were to engage with the taxpayers with a genuine intention to solve the problems, confidence in the system can be built up and such matters would not reach courts", noted the Bench.
The Division bench continued to observe that Tax laws, as it is, are complex and hard to interpret. Therefore, if the tax filing procedures do not provide for an appropriate avenue to correct a bona fide mistake, the same would lead to the taxpayers avoiding compliances.
[Case: SKH Sheet Metals Components v. Union of India & Ors.]
81. [Income Tax] Providing Information Regarding Ongoing Investigation To Its Informer Is Inappropriate, Injurious: Delhi High Court
A Single Bench of Justice Suresh Kumar Kait cautioned that providing information regarding an ongoing investigation in an income tax case to its informer is not only inappropriate, but also injurious to the investigation. " The Income Tax Department has a specific framework of investigations dealing with the TEPs and information in respect of the investigation carried out by the office of Directorate General of Income Tax (Investigation) is not required to be intimated to the complainant as the said office is even outside the purview of the RTI Act, 2005," it observed.
The observation was made while hearing a case against Magistrate's order directing the Income Tax Department to file an action taken status report with respect to a tax evasion complaint filed by the Respondent herein.
[Case: Principal Director, Income Tax (Investigation-2) v. Rajiv Yaduvanshi & Ors.]
IBC
82. Avoidance Application Cannot Be Adjudicated By NCLT After Approval Of Resolution Plan: Delhi High Court
A Bench of Justice Prathiba M. Singh held that an application for avoidance of a preferential transaction, though filed prior to the Resolution Plan being approved, cannot be heard and adjudicated by the NCLT, at the instance of the Resolution Professional, after the approval of the Resolution Plan. The continuation of a RP or filing of an application for the purpose of prosecuting an avoidance application as a `Former RP' is beyond the contemplation of the Insolvency and Bankruptcy Code, the Court observed.
In this case, NCLT had issued notice an application filed under Section 43 for avoidance of preferential transactions of the resolution process which was filed before it approved the resolution plan. Assailing this proceedings, the petitioner's contention was that under the scheme of the IBC, once the CIRP has reached finality, the Resolution Professional (RP) becomes functus officio and can no longer file or pursue any application on behalf of the company. As per Section 43 of the code, if the RP is of the opinion that any preferential transaction has taken place, by which the Corporate Debtor has given any benefit to a related party, two years prior to the insolvency commencement date or a preference to an unrelated party one year prior to the said date, he can move an application with the NCLT for avoidance of the same. If the NCLT is of the view that the transaction was a preferential transaction, it can pass various types of orders as set out in Section 44, in effect neutralising the transaction.