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All High Courts Weekly Roundup [March 21 - March 27, 2022]
Shrutika Pandey
30 March 2022 10:00 AM GMT
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Allahabad High Court CITATIONS 2022 LiveLaw (AB) 130 TO 2022 LiveLaw (AB) 141 NOMINAL INDEX Sajid @ Kale v. State of U.P. 2022 LiveLaw (AB) 130 State of Uttar Pradesh v. Rahul Singh @ Govind Singh connected with Rahul Singh @ Govind Singh v. State of Uttar Pradesh 2022 LiveLaw (AB) 131 Jeetu @ Amit Kumar Rawat And Anr. v. Sub Divisional Magistrate Sadar Lucknow And Anr....
Allahabad High Court
CITATIONS 2022 LiveLaw (AB) 130 TO 2022 LiveLaw (AB) 141
NOMINAL INDEX
Sajid @ Kale v. State of U.P. 2022 LiveLaw (AB) 130
State of Uttar Pradesh v. Rahul Singh @ Govind Singh connected with Rahul Singh @ Govind Singh v. State of Uttar Pradesh 2022 LiveLaw (AB) 131
Jeetu @ Amit Kumar Rawat And Anr. v. Sub Divisional Magistrate Sadar Lucknow And Anr. 2022 LiveLaw (AB) 132
Sanjay Gupta Vs. State Of U.P. And Another 2022 LiveLaw (AB) 133
Dr. Sonal Sachadev Aurora v. State Of U.P.Thru.Addl.Chief Prin.Secy.Medical Educat. And Ors 2022 LiveLaw (AB) 134
Smt. Kavita Sonkar v. State Of U.P. And 2 Others 2022 LiveLaw (AB) 135
Anirudh Kamal Shukla v. Union Of India Thru. Assistant Dir. Directorate Of Enforcement Lko 2022 LiveLaw (AB) 136
Bindu v. High Court Of Judicature At Allahabad Through Its R.G And Another 2022 LiveLaw (AB) 137
Dr. Syed Kalbe Sibtain @ Noori v. State Of U.P. Thru Prin. Secy. Home. Lko And Another 2022 LiveLaw (AB) 138
The Assembly of God North India Balrampur and another v. State of U.P. through Secy. Revenue Lko. and 3 others 2022 LiveLaw (AB) 139
X (Minor) v. State of U.P. and Another 2022 LiveLaw (AB) 140
Rahul Kumar In Wria 323 Of 2022 v. State Of U.P Thru.Addl.Chief Secy.Basic Edu. Dept. U.P. Govt. Civil Secrt. Lko. And Ors 2022 LiveLaw (AB) 141
Judgments/Orders of the Week
Case title - Sajid @ Kale v. State of U.P.
Citation: 2022 LiveLaw (AB) 130
The Allahabad High Court granted bail to one Sajid @ Kale who was arrested in connection with an alleged recovery of 200 KG of prohibited flesh taking into account the fact that the co-accused, from whom the flesh was recovered, had been granted bail.
The Bench of Justice Mohd. Faiz Alam Khan noted that the criminal history of the applicant had been adequately explained and the offences charged against the applicant are triable by the Magistrate. The Court also noted that he is in jail in this case since November 29, 2021, and the charge sheet had also been filed in the case.
Case title: State of Uttar Pradesh v. Rahul Singh @ Govind Singh connected with Rahul Singh @ Govind Singh v. State of Uttar Pradesh
Case Citation: 2022 LiveLaw (All) 131
The Allahabad High Court recently rejected the reference made to it to confirm the death penalty awarded to a man accused of murdering two persons (Husband-Wife) as it found that the prosecution couldn't prove charges against the accused beyond a reasonable doubt.
The Bench of Justice Ramesh Sinha and Justice Saroj Yadav acquitted the accused as it came to the conclusion that evidence/statements of the sole eye-witness of the incident, PW-1 (daughter of the deceased husband-wife) was not credible and the same didn't inspire confidence.
Case title - Jeetu @ Amit Kumar Rawat And Anr. v. Sub Divisional Magistrate Sadar Lucknow And Anr.
Case citation: 2022 LiveLaw (AB) 132
In a significant assertion, the Allahabad High Court observed that as per the Maintenance and Welfare of Parents and Senior Citizens Act 2007 and the rules framed by the state government thereunder, it is mandatory for the District Magistrate to ensure that the life and property of the senior citizen are protected and they are able to live with security and dignity.
The Bench of Justice Pankaj Bhatia further observed that the Senior Citizen Act recognizes the vulnerable position of such citizens in the society and it intends to provide a mechanism to avoid their suffering and to ensure that the life and property of the senior citizen are secured and they are able to live in security and dignity.
Case title - Sanjay Gupta Vs. State Of U.P. And Another
Case Citation: 2022 LiveLaw (AB) 133
The Allahabad High Court quashed a summoning order issued by a Court of the Magistrate against the Editor-In-Chief of the daily newspaper Dainik Jagran, Sanjay Gupta for publishing an alleged defamatory news item.
The Bench of Justice Syed Aftab Husain Rizvi noted that in absence of specific allegations against the Chief Editor, the person holding the post can't be summoned.
Case Title - Dr. Sonal Sachadev Aurora v. State Of U.P.Thru.Addl.Chief Prin.Secy.Medical Educat. And Ors
Case Citation: 2022 LiveLaw (AB) 134
The Allahabad High Court pulled up the Uttar Pradesh for initiating a departmental inquiry and thereafter terminating the service of a woman doctor 2 years after she sent her resignation.
Quashing the termination order passed against the woman and noting that the petitioner/woman was harassed, the Bench of Justice Vivek Chaudhary opined that any working woman, more particularly, a mother is required to be accommodated as far as possible.
Case title - Smt. Kavita Sonkar v. State Of U.P. And 2 Others
Case citation: 2022 LiveLaw (AB) 135
The Allahabad High Court observed that it is not the function of the Court to adjudge or evaluate the suitability or desirability of a particular qualification that may be prescribed for a particular service.
The Bench of Justice Manju Rani Chauhan observed thus while hearing a writ plea filed by one Kavita Sonkar who appeared and cleared the pre and main examination conducted by the State Public Service Commission for the post of Assistant Review Officer.
Case title - Anirudh Kamal Shukla v. Union Of India Thru. Assistant Dir. Directorate Of Enforcement Lko
Case Citation: 2022 LiveLaw (AB) 136
While rejecting the anticipatory bail application of a person booked under the Prevention of Money Laundering Act, 2002, the Allahabad High Court observed that for money-launderers Jail is the rule and bail is an exception.
The bench of Justice Krishan Pahal observes thus as it stressed that money Laundering as an offence is an economic threat to national interest and is committed by the white-collar offenders who are deeply rooted in society and cannot be traced out easily.
Case title - Bindu v. High Court Of Judicature At Allahabad Through Its R.G And Another
Case Citation: 2022 LiveLaw (All) 137
The Allahabad High Court clarified that for seeking appointment as Judicial Officer/District Judge as per Article 233 (2) of the Constitution of India, an Advocate has to be in continuous practice for not less than 7 years [with no break in between] as on the cut-off date and at the time of appointment as District Judge.
It may be noted that Article 233 of the Constitution of India deals with the Appointment of district judges and its subclause (2) mandates that a person, not already in the service of the Union or of the State, shall only be eligible to be appointed a district judge if he has been for not less than seven years, an advocate or a pleader, and is recommended by the High Court for the appointment.
Case title - Dr. Syed Kalbe Sibtain @ Noori v. State Of U.P. Thru Prin. Secy. Home. Lko And Another
Citation: 2022 LiveLaw (AB) 138
The Allahabad High Court granted pre-arrest bail to Shia leader Dr. Syed Kalbe Sibtain @ Noori booked under various sections of the Indian Penal Code for allegedly ransacking police chowkis during the Anti-CAA protests that took place in December 2019.
The Bench of Justice Krishan Pahal granted bail to Dr. Noori in view of the law laid down by the Apex Court in the case of Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98. It may be noted that Dr. Noori is the son of a renowned scholar and cleric of the Shia Community, Kalbe Sadiq who has been awarded Padma Bhushan.
Case title - The Assembly of God North India Balrampur and another v. State of U.P. through Secy. Revenue Lko. and 3 others
Case Citation: 2022 LiveLaw (AB) 139
The Allahabad High Court observed that the market value of a property for the purpose of Section 47-A Of the Indian Stamp Act has to be determined with reference to the use to which the land is capable reasonably of being put to immediately or in the proximate future.
It may be noted that where it is found that an instrument is undervalued [which happened in the instant case], the procedure has been set forth under Section 47-A of the Act for assessing the correct stamp duty on the instrument.
Case title - X (Minor) v. State of U.P. and Another
Case Citation: 2022 LiveLaw (AB) 140
The Allahabad High Court reiterated that a Juvenile has a right to be released on bail where a similarly circumstanced adult offender has already been extended that liberty.
The Bench of Justice Shamim Ahmed was of the further view that once the adult co-accused has been admitted to bail, there would be no justification to additionally test the case of the Juvenile with reference to the requirements of the proviso to sub Section (1) of Section 12 of the Juvenile Justice Act.
Case title - Rahul Kumar In Wria 323 Of 2022 v. State Of U.P Thru.Addl.Chief Secy.Basic Edu. Dept. U.P. Govt. Civil Secrt. Lko. And Ors
Case Citation: 2022 LiveLaw (AB) 141
The Allahabad High Court (Division Bench) refused to interfere in the Single Judge order dated Jan 27, 2022, staying the decision of the Uttar Pradesh government to appoint 6800 additional candidates as primary assistant teachers in the state in addition to already appointed 69000 candidates.
With this, the bench of Justice Devendra Kumar Upadhyaya and Justice Ajai Kumar Srivastava-I endorsed the decision of the Single bench order of Jan 27, 2022, wherein it was concluded that the UP Government can't appoint more than 69000 candidates without issuing an advertisement regarding the same, since in the original advertisement issued by the state, only 69000 posts were intended to be filled.
Important Weekly Updates From the High Court/UP courts
The Central government notified the appointment of a Judicial Officer as an additional judge to the Allahabad High Court.
The appointment has been made in the exercise of the power conferred by clause (I) of Article 224 of the Constitution of India. Judicial Officer Umesh Chandra Sharma will remain as an Additional Judge of the Allahabad High Court till December 31, 2023.
Case Title - Anjuman Intazamia Masazid Varanasi v. Ist A.D.J. Varanasi And Others
The Allahabad High Court decided that it shall hold regular hearings in the matter related to the Kashi Vishwanath temple-Gyanvapi mosque dispute of Varanasi starting from March 29.
The Bench of Prakash Padia ordered thus while holding a hearing on a plea moved by Anjuman Intazamia Masazid, Varanasi last year seeking a stay on the proceedings of the Varanasi court, and also filed applications challenging the maintainability of the civil suit pending before the lower court.
Case title - Suresh Devi And Another v. State Of U.P. And 13 Others
The Allahabad High Court asked the Additional Chief Secretary in the Uttar Pradesh Government to file his personal affidavit disclosing the steps taken by the State pursuant to the submission of ajudicial inquiry report in the Bulandshahr Custodial Death case.
The Bench of Justice Ashwani Kumar Mishra and Justice Rajnish Kumar ordered thus as it noted that in the judicial inquiry report, it had clearly been found that the victim had died in the police custody and the police personnel were responsible for it.
Bombay High Court
Nominal Index
Dr. Sonal Pratapsingh Vahanwala v. Deputy District Collector, Dharavi
The State of Maharashtra v Shadab Tabarak Khan
Manojkumar Omprakash Dalmia vs Omprakash Dalmia and Others
Shrikrupa Stone Crusher v State of Maharashtra and ors.
Invesco Developing Markets Fund vs Zee Entertainment Enterprises Limited
Poorti Rent a Car and Logistics Pvt. Ltd. & ors. vs. Kotak Mahindra Bank Ltd. & ors
Mariyayi Machhimaar Sahkari Sansthya Maryadit Versus Department of Fisheries and others
Securities and Exchange Board of India Versus Rajkumar Nagpal & Ors.
Perizad Zorabian Irani Versus PCIT And Ors.
CA. Manisha Mehta and ors. Vs The Board of Directors of Represented by its Managing Director of ICICI Bank and ors.
RPG Enterprises Limited v Riju Ghoshal and anr
Hriday Niraj Mehta vs. Umesh Jayantilal Mehta and Others
ROUND-UP
Case Title: Dr. Sonal Pratapsingh Vahanwala v. Deputy District Collector, Dharavi
Citation: 2022 LiveLaw (Bom) 90
Observing that an adopted child becomes a family member of his adoptive parents "in all respects," the Bombay High Court directed authorities to issue a caste certificate to an 18-year-old based on his mother's scheduled caste identity.
The Bench thus held that an adopted child would be entitled to take the caste identity of his adoptive mother, despite the caste authorities' insistence on making the child's biological father's records available.
"One of the effects would be that the child would not get identity of mother and particularly caste of the mother. He would be without identity throughout his life. Similarly, very purpose of adopting child by the petitioner being a single mother would stand frustrated. In our opinion, such a situation could not be envisaged by law."
Case Title : The State of Maharashtra v Shadab Tabarak Khan
Citation : 2022 LiveLaw (Bom) 91
A single judge of the HC, held that under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 the Juvenile Justice Board has to assess a heinous offence to determine whether CCL is to be tried as an adult or juvenile.
If the child above 16 years of age, the Board has to conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, before deciding if the CCL can be tried as an adult.
Case Title: Manojkumar Omprakash Dalmia vs Omprakash Dalmia and Others
Citation: 2022 LiveLaw (Bom) 92
Observing that "greed, acrimony and deceit" are clear from the son's conduct, the Bombay High Court dismissed the contempt petition he filed against his parents in connection with a property dispute and directed him pay them cost of Rs. 50,000.
The petitioner son -Manoj Kumar Dalmia- alleged non-compliance of consent terms he allegedly signed with his parents, giving him more than his share in the couple's Santacruz flat, while also permitting his family to reside there. He would also get their second flat, which was their only source of livelihood.
There was no reason whatsoever for Respondent Nos. 2 and 3 (parents) to ordinarily enter into the Consent Terms which basically seek to undo what they had been able to preserve thus far, by securing orders from this Court and the Supreme Court," a division bench noted about the "lopsided" terms.
Case Title : Shrikrupa Stone Crusher v State of Maharashtra and ors.
Citation : 2022 LiveLaw (Bom) 93
The Bombay High Court considered whether grant of short term permit for extraction of minor minerals under Rule 59 of the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013 (the Rules of 2013) ought to be preceded by holding public auction or whether such short term permit can be granted on the basis of an application made to the Competent Authority.
"it was not the intention of the State that short term permit for minor minerals should be granted by way of public auction. The mode of granting such permit on an application made has been retained."
5. "Shareholder cannot be restrained from calling a meeting" - Bombay High Court Sets Aside Interim Order In Favour Zee Entertainment In Battle With Invesco
Case Title: Invesco Developing Markets Fund vs Zee Entertainment Enterprises Limited
Citation: 2022 LiveLaw (Bom) 94
A division bench of the Bombay High Court allowed an application filed by US investment firm Invesco Developing Markets Fund, the largest shareholder of Zee Entertainment Enterprises Limited (Zee), against a single judge's order granting interim injunction to Zee and restraining the investor from holding an Extraordinary General Body Meeting.
1.The bench relied heavily on the Supreme Court's decision in LIC vs. Escorts wherein the SC held that a shareholder cannot be restrained from calling a meeting, such shareholder need not disclose reasons for the resolutions proposed and that the reasons for the resolution are not subject to judicial review.
2.That civil court's jurisdiction to entertain the Suit is in the teeth of Section 430 of the Act matters that fall within the domain of the NCLT.
3.Bench dealt with the consequences of ruling that a Civil Court can, in certain cases, grant an injunction restraining shareholders of a company from exercising their statutory right to call for and hold an EGM. "If we were to open this flood gate, Corporate democracy, as we understand it, would be rendered nugatory. Shareholders will be repeatedly restrained and injuncted from exercising their statutory rights…We cannot lay down a precedent resulting in such drastic consequences derailing the democratic functioning of Companies across India owing to the non-cooperative and obstructive conduct of the Board of Directors."
Case Title : Poorti Rent a Car and Logistics Pvt. Ltd. & ors. vs. Kotak Mahindra Bank Ltd. & ors.
Citation : 2022 LiveLaw (Bom) 95
The Bombay High Court held that a Bank, being a "secured creditor" within the meaning of section 2(zd) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), is entitled to initiate proceedings against a debtor under Section 13 thereof, notwithstanding the fact that the assignor of debt portfolio was not a "financial institution" at the material time.
A bench of Chief Justice Dipankar Datta and Justice MS Karnik concluded that,
"initiation of action under Chapter III of the SARFAESI Act by the respondent no.1, being a "secured creditor" within the meaning of section 2(zd) thereof for the purpose of enforcing the security interest that was created earlier, is legally permissible. That the respondent no. 1 is the successor-in-interest of the respondent no.2, which was not a "financial institution" at the material time would make no difference insofar as consequence in law is concerned."
Case Title: Mariyayi Machhimaar Sahkari Sansthya Maryadit Versus Department of Fisheries and others
Citation: 2022 LiveLaw (Bom) 96
A bench led by Justice Shahrukh Kathawalla directed disbursal of ad-hoc compensation of Rs. 1 lakh to each of the 953 fisherfolk families being affected by an infrastructure project in Thane.
"As the fisherfolk and their families cannot be expected to starve till the authorities decide the quantum of compensation…" the bench observed in their order.
The court noted that the State's Draft Compensation Policy dated November 29, 2021, adopts the approach of the National Green Tribunal. According to the NGT's calculation in the matter of Ramdas Janardan Kohli on February 27, 2015, compensation for one family was pegged at Rs. 6 lakh for three years.
8. Shareholders Of RCFL Permitted To Carry Out A Voting Process Based On Debenture Trust Deeds In Compliance With RBI Circular: Bombay High Court Dismisses SEBI's Appeal
Case Title: Securities and Exchange Board of India Versus Rajkumar Nagpal & Ors.
Citation: 2022 LiveLaw (Bom) 97
The Bombay High Court dismissed an appeal filed by the Securities and Exchange Board of India (SEBI) and permitted the shareholders of Reliance Commercial Finance Ltd. (RCFL) to carry out a voting process based on debenture trust deeds (DTDs) in compliance with the circular issued by the Reserve Bank of India (RBI).
The court noted that the SEBI Circular stated that it would take effect immediately on October 13, 2020.In the present case, RCFL committed defaults prior to October 13, 2020, and the ICA was executed on July 6, 2019, which are dates prior to the coming into force of the SEBI Circular and prior to the Supplementary DTD incorporating reference to the SEBI Circular.
Case Title: Perizad Zorabian Irani Versus PCIT And Ors.
Citation: 2022 LiveLaw (Bom) 98
The Bombay High Court ruled that remuneration received from partnership firm cannot be treated as gross receipt in profession for the purpose of compulsory audit under Section 44AB of the Income Tax Act, 1961.
The Bench held that that none of the clauses under Section 44AB envisage the situation where an assessee is carrying on both profession as well as business.
Case Title: CA. Manisha Mehta and ors. Vs The Board of Directors of Represented by its Managing Director of ICICI Bank and ors.
Citation: 2022 LiveLaw (Bom) 99
The Bombay High Court has refused to read principles of natural justice into Section 14 of the SARFESI Act and direct magistrates to put a borrower to notice before taking possession of the asset for the bank or financial institution.
"Only a post-possession right to approach the tribunal is conferred on a borrower in terms of section 17, nothing more and nothing less," the bench observed.
The court observed that principles of natural justice under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFESI Act), are available to a borrower only to a limited extent and not till the secured creditor takes possession of the asset after serving a notice to the borrower and responding to it.
Case Title: RPG Enterprises Limited v Riju Ghoshal and anr
Citation: 2022 LiveLaw (Bom) 100
The Bombay High Court granted interim relief to RPG Enterprises Ltd, named after its founder, Mr. Rama Prasad Goenka, a known industrialist. Considering the factors such as (i) the extent of knowledge of the RPG mark, and its recognition by the relevant public; (ii) the duration of the use of the RPG marks; (iii) the extent of the products in relation to which the RPG mark is being used; (iv) the extent and duration of advertising and promotion of the RPG mark; (v) the geographical extent of the trading area in which the RPG mark is used…I am of the opinion that prima facie, the Plaintiff's RPG mark deserves protection as a well-known trade mark as the same has come to acquire a secondary meaning to connote to the public the goods and / or services emanating from the Plaintiff."
Case Title: Hriday Niraj Mehta vs. Umesh Jayantilal Mehta and Others
Citation: 2022 LiveLaw (Bom) 101
The Bombay High Court is set to decide a complex position in law – will mere filing of a Partition Suit by a minor family member amount to severing of ties from a Hindu Undivided Family even if the Suit is eventually dismissed for non-prosecution while the plaintiff was still a minor, or should that minor be considered a part of HUF.
The question has come up in a case where the concerned minor, after attaining majority in March 2020, has now challenged a gift deed executed by his parents as a part of HUF while he was a minor, but, had sought partition of the property under the HUF. The property was eventually sold by another close relative who purportedly received it as a gift and a third party is in possession of the house in an eastern suburb of Mumbai.
Calcutta High Court
Citations: 2022 LiveLaw (Cal) 84 To 2022 LiveLaw (Cal) 93Nominal Index
1. Precious Trade Link Private Limited Versus Assistant Commissioner of State Tax 2022 LiveLaw (Cal) 84
2. Alpine Distilleries Pvt. Ltd v. The State of West Bengal and others 2022 LiveLaw (Cal) 85
3. Ajoy Kumar Singhania v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 86
4. Naimuddin Laskar @ Naim v. The State of West Bengal 2022 LiveLaw (Cal) 87
5. Kabita Mondal (Gayen) v. West Bengal State Electricity Distribution Co. Ltd. and others 2022 LiveLaw (Cal) 88
6. Kamal Nath v. The Principal Commissioner of Income Tax, Kolkata 2022 LiveLaw (Cal) 89
7. The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum 2022 LiveLaw (Cal) 90
8. Malancha Mohinta v. Dipak Mohinta 2022 LiveLaw (Cal) 91
9. Ram Sevak Lohar v. State 2022 LiveLaw (Cal) 92
10. Dr. Kausik Paul v. Seacom Skills University and Others 2022 LiveLaw (Cal) 93
Orders/Judgments
Case Title: Precious Trade Link Private Limited Versus Assistant Commissioner of State Tax
Case Citation: 2022 LiveLaw (Cal) 84
The Calcutta High Court bench of Justice Md. Nizamuddin, has quashed the detention order passed by the Goods and Service Tax Department (GST) on the grounds that the opportunity of hearing was not accorded to the assessee. The petitioner/assessee has challenged the order passed by the Deputy Commissioner of State Tax on the ground that the order was bad in law for the reason that the goods of the petitioners were detained without giving any opportunity of hearing to the petitioners under the relevant provision of Section 129 of the West Bengal Goods and Service Tax Act,2017 (WBGST Act). The court ordered that the detained goods shall be released on making payment as per the amended provision of Section 129(1) of the WBGST Act and directed the petitioner to make payment within seven days from the date. On receipt of such payment, the department shall release the detained goods in question within 72 hours from receipt of payment. The court quashed the detention order passed by the Deputy Commissioner of State Tax and remanded it to the authority concerned to consider afresh and pass a reasoned and speaking order in accordance with the law after giving an opportunity of hearing to the petitioners or their authorised representative.
Case Title: Alpine Distilleries Pvt. Ltd v. The State of West Bengal and others
Case Citation: 2022 LiveLaw (Cal) 85
The Calcutta High Court has recently restrained the concerned Block Land and Land Reforms Officer from interfering with the possession of the land under Section 14T(3) of the West Bengal Land Reforms Act, 1955 (Act) after noting that a person is entitled to land in excess of the ceiling area defined under Section 14M of the Act if the same is intended to be used for commercial purposes. A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta observed, "Accordingly, the respondents shall remain restraint from interfering with the possession of the land, which has/have been passed by an order of the relevant Block Land and Land Reforms Officer." However, the petitioner was restrained from creating any third party interest in respect of the land or change the nature and character thereof without obtaining prior leave of the West Bengal Land Reforms and Tenancy Tribunal. "Since it is alleged that the petitioner is holding the excess land beyond the ceiling limit provided under Section 14M of the said Act, the petitioner is restrained from creating any third party interest in respect of the same nor shall change the nature and character thereof without obtaining prior leave of the tribunal", the Court directed. It was further ordered that the correction of the record of rights shall not be made without obtaining the prior leave of the Tribunal.
Case Title: Ajoy Kumar Singhania v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 86
The Calcutta High Court has recently directed the District Registrar to ensure that legible copies are always provided when certified copies of a registered document is applied for otherwise the intervention of the Court will always be required for the supply of such legible copies. In the instant case, the petitioner had applied for obtaining the certified copy of a sale deed however the copy of the sale deed which had been provided to the petitioner was illegible. Subsequently, the petitioner had applied to the District Registrar to furnish a legible copy of the concerned document, however such no action had been taken on such a request. Thereafter, the instant plea had been filed. Justice Amrita Sinha observed it is evident from the photocopy of the deed supplied to the petitioner that it is absolutely illegible and accordingly remarked, "The copy of the deed which was supplied to the petitioner is absolutely illegible. Not a word from the said deed can be read." Taking into consideration the grievance raised, the Court directed, "The District Registrar is directed to ensure that when certified copy of a registered document is applied for, then legible copy should always be provided to the applicants; otherwise, the applicants will be required to approach Court for obtaining order for supplying legible copy of the document(s) they require." The order was also directed to be communicated to the District Registrar and the other Sub-Registrars within the jurisdiction to ensure compliance.
Case Title: Naimuddin Laskar @ Naim v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 87
The Calcutta High Court has recently granted default bail after noting that no notice of the application seeking extension of time in filing of chargesheet under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) had been served upon the accused thereby violating principles of natural justice. A Bench comprising Justice Debangsu Basak and Justice Bibhas Ranjan De observed, "In an adversarial proceeding, the requirement to adhere to the principles of natural justice is imbedded in a statute governing the adjudicating process unless the same is expressly excluded by statute. The right to a fair trial is fundamental to the rule of law. Right to fair trial is recognized as a part right to life enshrined in Article 21 of the Constitution of India. Compliance with the principles of natural justice ensures a fair trial. Audi alteram partem or hear the other side is one of the fundamental pillars of the principles of natural justice. The principle audi alteram partem needs to applied at every stage of an adversarial proceeding to ensure fair trial, unless its applicability is expressly ousted by statue." The Court further underscored that Section 36A(4) of the NDPS Act does not expressly exclude the application of principles of natural justice and thus an accused is entitled to notice of an application seeking extension of time to submit a chargesheet under Section 36A(4) of the NDPA Act so that he is in a position to oppose the same if need be.
Case Title: Kabita Mondal (Gayen) v. West Bengal State Electricity Distribution Co. Ltd. and others
Case Citation: 2022 LiveLaw (Cal) 88
The Calcutta High Court called upon the legislature to immediately introduce specific provisions in the Electricity Act, 2003 (2003 Act) regarding payment of compensation to victims of injury, death or damage to property caused by electrocution or to their next of kin. The Court also observed that the legislature should also consider providing for a dedicated hierarchy of forums to decide such cases and that Rules may also be formulated by the Central or State Electricity Regulatory Commissions for effective implementation of such provisions. Justice Sabyasachi Bhattacharyya observed, "It is desirable that the legislature considers the immediate introduction of specific provisions in the Electricity Act, 2003 itself, regarding payment of compensation to victims of injury, death of damage to property caused by electrocution or their next of kin and, if deemed fit, to also consider providing for a dedicated hierarchy of forums to decide such cases. Rules in that regard may also be formulated by the Central and/or State Electricity Regulatory Commissions for effective implementation of such provisions." The Court further noted that relegating such matters of compensation to a Civil Court would aggravate the misery of the victim's kin and accordingly remarked, "The option of relegating such matters of compensation to a civil court, considering the usually sorry plight of the victim's dependants, would involve much time and resources which the applicants in such matters mostly cannot afford to spend. Civil suits, by their implicit nature and statutory structure, require oral and documentary evidence to be led and considered in detail before final disposal."
Case Title: Kamal Nath v. The Principal Commissioner of Income Tax, Kolkata
Case Citation: 2022 LiveLaw (Cal) 89
Justice Md Nizamuddin of the Calcutta High Court on Tuesday recused himself from hearing a petition by former Madhya Pradesh Chief Minister Kamal Nath against the Income Tax authorities in connection with the IT department's decision to transfer his case from Kolkata to Delhi. The matter arose from income tax raids in multiple states, including West Bengal, in the premises of people allegedly linked to Nath in April 2019, when he was the chief minister of Madhya Pradesh. The raids were conducted in connection with a notice issued to the senior Congress leader by the IT authorities. On Tuesday, Justice Nizamuddin recused from hearing the matter and further ordered for the case to be placed before Chief Justice Prakash Shrivastava. "On my personal ground, this matter is released from my list. Let it be placed before the Hon'ble the Chief Justice", the order read. In the instant case, Kamal Nath had moved the Principal Commissioner of Income Tax, Kolkata-9, challenging the IT summons against him asking him to appear in New Delhi, and not in Kolkata, under which he is a tax assessee.
7. Birbhum Massacre| Calcutta HC Orders CBI Probe, SIT Asked To Stop Investigation
Case Title: The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum
Case Citation: 2022 LiveLaw (Cal) 90
The Calcutta High Court on Friday transferred to the Central Bureau of Investigation (CBI) the investigation into the violence in Birbhum district of West Bengal, in which 8 persons were killed allegedly in retaliation to the murder of local All India Trinamool Congress (TMC) leader Bhadu Sheikh. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on Friday observed that in the interest of justice and considering the circumstances of the instant case, the ongoing probe should be transferred to the CBI. "Having regard to the aforesaid we are of the opinion that facts and circumstances of the case demand that in the interest of justice and to instill confidence in the society and to have fair investigation to dig out the truth it is necessary to hand over the investigation to the CBI. Accordingly, we direct the State Government to forthwith hand over the investigation of the case to CBI. We also direct the State authorities to extend full cooperation to CBI in carrying out the further investigation", the Bench ordered. The State constituted Special Investigating Team (SIT) which had been carrying on its investigation till now was further ordered to not carry out any further investigation in the matter from the time the same is handed over to CBI. "In view of this order the State police authorities or SIT formed by the State will not carry out any further investigation in the matter from the time the same is handed over to CBI. CBI will not only be handed over the case papers but also the accused and suspects who were arrested in the matter and in custody", the Court ordered further. The CBI has been ordered to submit a progress report on the next date of hearing that is to take place on April 7.
Also Read: Birbhum Massacre| Calcutta HC Reserves Order, Takes On Record Case Diary
Case Title: Malancha Mohinta v. Dipak Mohinta
Case Citation: 2022 LiveLaw (Cal) 91
The Calcutta High Court on Wednesday observed that writing a letter to the husband's superior at work in good faith intimating him about a criminal case lodged against the husband for inflicting torture would not amount to criminal defamation under Section 499 of the IPC. In the instant case, the wife (petitioner) had written a letter dated May 24, 1997 to the Manager, Indian Overseas Bank intimating him that her husband who was the Assistant Manager of Overseas Bank had tortured her and driven her out of the matrimonial home and that a criminal case under Section 498A CrPC (cruelty) had been initiated against him following which he had been arrested and subsequently released on bail. The petitioner had enclosed a certified copy of the order and had requested the Manager to take such action as may be deemed fit under the facts and circumstances. Justice Ananda Kumar Mukherjee noted that the petitioner in her letter had made representation of facts which were consistent with the incidents relating to filling of cases for alleged torture. He further opined that there had been no 'embellishment of facts' and that no coercive action had been sought by the petitioner against her husband vide the letter. "There remains little to be said that the letter in question was a statement of fact instead of any imputation to harm the reputation of the opposite party", the Court observed. Opining further that the the ingredients of offence of defamation are not attracted by the contents of the letter as they are covered by the Eighth Exception laid down under Section 499 IPC, the Court underscored, "..preferring an accusation against any person to any of the persons who have lawful authority over that person, would not amount to defamation. In the instant case the petitioner wife made accusation against the opposite party before his superior in office in good faith and consistent to her accusation made in the petition of complaint. Therefore, the same would not amount to any defamation as the same is excepted in the 8th exception."
Case Title: Ram Sevak Lohar v. State
Case Citation: 2022 LiveLaw (Cal) 92
While opining that the sole evidence of a victim of sexual assault is enough to secure a conviction, the Calcutta High Court on Friday observed that the evidence of a victim need not be tested with the same amount of suspicion as that of an accomplice. A Bench comprising Justice Shekhar B. Saraf and Justice Kesang Doma Bhutia observed that the Supreme Court in various decisions have held that barring serious exceptions, the evidence of victim of sexual assault is enough for conviction. Opining that the evidence of a victim of sexual assault need not be tested with the same amount of suspicion as that of an accomplice, the Court underscored, "A girl, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. Maintaining that the sole and trust worthy evidence of a woman, who is a victim of a sexual offence, is enough to find her assailant guilty. An accused guilty for committing of offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality." The Court further observed that the testimony of a minor sexual assault victim must be appreciated taking into account the facts and circumstances of the case. It was also noted that even if the mother of the victim turns hostile. the sole evidence of the victim if found reliable can be enough to secure a conviction. "..it has been held rape is not mere physical assault but instead destroys the whole personality of the victim. The rapist degrades the very soul of the helpless female and therefore, the testimony of the prosecutrix must be appreciated on the background of the entire case, even if the mother turns hostile", the Court observed further.
Case Title: Dr. Kausik Paul v. Seacom Skills University and Others
Case Citation: 2022 LiveLaw (Cal) 93
The Calcutta High Court has recently observed that the perceived unfairness of a 'hire and fire policy' or a clause of summary dismissal is substantially diluted if an employee is given sufficient opportunity to respond to the charges levelled. Opining that Courts intervene only if the principles of natural justice is found to have been violated, Justice Moushumi Bhattacharya observed, "The perceived unfairness of a "hire and fire" policy or a clause of summary dismissal is substantially diluted where sufficient notice is given to the employee to respond to the charges made against the employee. Courts usually intervene and rectify a situation where a clear breach of the rules of natural justice is established on fact or where the notice of termination is opaque and indecipherable in failing to disclose reasons for the sudden dismissal." The Court further opined that in several sectors, such conditions of summary dismissal may be necessary for maintaining disciplinary standards and also for ensuring the competence levels of employees. "The words "hire and fire" carry a sense of an inherent and abrupt injustice. The underlying imputation is one of summary dismissal without an opportunity of a meaningful say in the decision of dismissal. There are also several sectors where the persons are employed under the condition of a summary dismissal on the happening of certain events. In other spheres, these conditions may be seen as necessary for maintaining disciplinary standards and the competence levels of employees", the Court opined further.
Important Developments
Case Title: Biplab Kumar Chowdhury v. Union of India and Ors
The Calcutta High Court sought response from the Union of India as well as the State government in a Public Interest Litigation (PIL) petition seeking a probe into the incident of mid-air turbulence experienced by Chief Minister Mamata Banerjee's chartered flight on March 4. On March 4, Banerjee was returning to Kolkata from Varanasi after an election campaign. She boarded a chartered flight but faced air turbulence just before landing at the Netaji Subhas Chandra Bose International airport. The Chief Minister reportedly suffered injuries in her back after the incident subsequent to which the doctors had advised her to take rest. The counsel appearing for the petitioner apprised a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj that whenever the Chief Minister flies out of the State, there is some or the other problem faced by her aircraft thereby jeopardising her health and security. The Bench was further informed that on March 4, the aircraft in which the Chief Minister was travelling had dipped close to 8,000 ft. in a matter of seconds causing serious injuries to the Chief Minister. Taking cognizance of the grievance raised, the Court directed the Union of India as well as the State government to obtain instructions in the matter and accordingly listed the matter for further hearing on April 25. The petitioner was also directed to serve a copy of the petitioner to the Advocate General.
Case Title: Suvendu Adhikari v. Hon'ble Speaker, WB Legislative Assembly and Ors and other connected matters
The Calcutta High Court took on record the affidavits-in-opposition filed by West Bengal Legislative Assembly Speaker Biman Banerjee, TMC MLA Mukul Roy and the Secretary, West Bengal Legislative Assembly in a writ petition filed by West Bengal Leader of Opposition Suvendu Adhikari challenging the West Bengal Speaker's decision to reject the petition seeking disqualification of Mukul Roy for defection from BJP to TMC. The counsel appearing for the petitioner prayed before a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj to grant 2 days extension of time to file the reply to the affidavits-in-opposition. Furthermore, the Bench recorded in the order that the Supreme Court vide order dated February 25, 2022 had directed the High Court to decide the matter within a month after refusing to entrain a Special Leave Petition (SLP) filed by Adhikari against the Speaker's decision. In the affidavit-in-opposition filed by the Speaker, WB Legislative Assembly it has been averred that the instant petition is not maintainable due to the bar imposed under Article 212 of the Constitution which immunises proceedings inside the Legislature from being challenged in a Court of law on the ground of irregularity of procedure. Furthermore, it has been stipulated that pursuant to Article 212(2) of the Constitution, even an erroneous decision or interpretation of the Rules of procedure by Officers including the Speaker and members cannot be made the subject-matter of scrutiny in a Court of law. "The High Court cannot be a court of revision against the Legislature or the Speaker's ruling with respect to proceedings within the House", it was averred further.
Case Title: Soumen Halder v. The State Of West Bengal & ors
A Public Interest Litigation (PIL) has been filed before the Calcutta High Court against the decision of the West Bengal government to introduce blue-and-white coloured uniforms for students in all State-run schools which will also feature the 'Biswa Bangla' logo. According to a notification dated March 16 issued by the Paschim Banga Samagra Siksha Mission, students of all government, semi-government and government-aided schools in Bengal will have a common uniform in a blue and white colour scheme which will also feature the Bengal government's 'Biswa Bangla' logo. The 'Biswa Bangla' campaign was launched to promote the sale of traditional Bengali handicrafts and textiles and it was adopted as the State logo in January 2018. The PIL filed by advocate Rajneel Mukherjee seeks an interim stay of such a notification and furthers avers that encryption of logos in the uniforms of students is a 'political stunt' by the TMC-led government. The PIL also questions the basis for introduction of such a uniform by contending that Biswa Bangla is a MSME initiative to promote the handicrafts, textile and clothing work of Bengal and hence the imposition of the Biswa Bangla logo on uniforms of students in government run institutions is unjustified.
4. Calcutta High Court Takes Suo Moto Cognisance Of Birbhum Massacre, Hearing At 2pm Today
The Calcutta High Court on Wednesday took suo moto cognisance of the incident of Rampurhat violence that erupted in the Birbhum district in the State of West Bengal. Shortly after the alleged murder of a Trinamool Congress deputy panchayat chief at Bogtui village in Birbhum district, violence broke out in Rampurhat A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on Wednesday agreed to take suo moto cognisance of the matter and further averred that the Bench would hear the matter at 2pm today i.e. on March 23. Meanwhile, a Public Interest Litigation (PIL) petition was also filed on Tuesday seeking an investigation by either the Central Bureau of Investigation (CBI) or the National Investigation Agency (NIA) into the incident of Rampurhat violence. The PIL filed by advocate Anindya Kumar Das seeks a probe by either the CBI or the NIA by averring that a 'serious law and order problem' has been created at Rampurhat and that public at large is lying at the mercy of local goons as the State police authorities have failed to abate the ongoing violence.
Case Title: Soumendu Adhikari v. State of West Bengal
The Election Commission of India (ECI) on Wednesday declined to conduct the forensic audit of CCTV cameras used during the recently concluded Contai Municipality elections through some independent agency. The Court was adjudicating upon a Public Interest Litigation (PIL) petition moved by BJP leader Soumendu Adhikari alleging that large scale violence and rigging of votes had taken place in the recently concluded Contai Municipality elections. Elections to 108 municipalities in the State including the Contai municipality took place on February 27. The counsel for the ECI submitted before the Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj a communication sent by the Under Secretary of the ECI stipulating that the ECI has no prior experience in conducting such forensic audit of CCTV camera which is stated to be a specialised function. Furthermore, the ECI placed reliance on the Supreme Court judgment in State of Goa v. Fouziya Imtiaz Shaikh to contend that it is the sole responsibility of the State Election Commission (SEC) to supervise and conduct elections by carrying out its Constitutional mandate. It was further averred that the SEC has also been given the responsibility to fill in the gaps when there is no existing law or Rules governing a matter pertaining to the conduct of elections. Thus, the ECI declined the request to conduct a forensic audit of the CCTV footage through an independent agency.
Case Title: The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum
The Calcutta High Court on Wednesday, while adjudicating upon the suo moto petition related to the the incident of Rampurhat violence in Birbhum district directed the State government to immediately install CCTV cameras with adequate storage facilities covering all angles of the scene of the crime in the presence of the District Judge, Purba Bhurdawan. The Court further directed the Central Forensic Science Laboratory (CFSL) to visit the the scene of the crime and collect necessary evidence for forensic examination without any delay. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on Wednesday observed that the suo moto petition has been registered to ensure that fair investigation takes place and those who are responsible for the incident are traced out and adequately punished by following due process of law. Declining the prayer for a probe by the Central Bureau of Investigation (CBI), the Court observed that an opportunity should first be granted to the State investigating authorities to produce the case diary and other relevant documents before the Court by 2pm tomorrow i.e. on March 24. "We at the first instance give an opportunity to the State to produce the case diary/ report about the investigation by tomorrow 2 PM. Report relating to investigation done until now to be produced by 2 PM on 24 March," the Court directed. Extending police protection to the vulnerable witnesses, the Court further directed, "Director General of Police and Inspector General of Police in consultation with District Judge, Purba Bardhaman district should ensure that witnesses are adequately protected and not threatened or influenced by anyone".
Case Title: Anindya Sundar Das v. Union of India and other connected matters
The Calcutta High Court on Thursday allowed the impleadment of the National Human Rights Commission (NHRC) and the State Human Rights Commission in order to constitute a two-member Committee to address the grievances of alleged victims of violence that had taken place post the declaration of the West Bengal assembly elections in May 2021. The Court vide order dated August 19, 2021 had handed over to the Central Bureau of Investigation (CBI) the investigation of cases related to murder, rape and crime against women whereas a Special Investigation Team (SIT) had been constituted to investigate other criminal cases related to post-poll violence. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj on the last date of hearing had taken on record a detailed affidavit filed by advocate Priyanka Tibrewal, petitioner appearing in person, wherein the names and contact details of 303 alleged victims of post-poll violence had been enumerated. She had further prayed before the Bench to constitute a committee of two Members, one from the NHRC and the State Human Rights Commission so that further affidavits and complaints can be placed before them and the real position can be ascertained by the constituted Committee. On Thursday, the Court allowed the petitioner to implead both the NHRC and the State Human Rights Commission in the instant proceedings. Accordingly, the petitioner was directed to implead the NHRC and the State Human Rights Commission within 2 days.
Chhattisgarh High Court
Case Title: Dr. Surijit Behl v. Jaspal Singh Bhatia
Citation: 2022 LiveLaw (Chh) 21
The Chhattisgarh High Court has recently held that the alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. The Court noted that a document that is voidable has to be actually set aside before taking its legal effect. A Division Bench of Justice Goutam Bhandari and Sanjay S. Agarwal remarked that distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect.
Delhi High Court
CITATIONS 2022 LiveLaw (Del) 215 TO 2022 LiveLaw (Del) 241
NOMINAL INDEX
ANKUR MUTREJA v. AVIATION EMPLOYEES BUILDING SOCIETY LTD 2022 LiveLaw (Del) 215
Om Sehgal v. Union of India 2022 LiveLaw (Del) 216
M/S GARRISON ENGINEER (CENTRAL), DELHI CANTT v. M.J. PRASAD & ORS. 2022 LiveLaw (Del) 217
POONAM v. STATE NCT OF DELHI 2022 LiveLaw (Del) 218
KHADI & VILLAGE INDUSTRIES COMMISSION 2022 LiveLaw (Del) 219
SETTU v. STATE NCT OF DELHI 2022 LiveLaw (Del) 220
Radha Bisht v. Union of India & Ors. 2022 LiveLaw (Del) 221
Ericsson India Private Limited Versus Assistant Commissioner Of Income Tax 2022 LiveLaw (Del) 222
ANIL KUMAR @ NILLU v. STATE 2022 LiveLaw (Del) 223
OM PRAKASH GUPTA & ANR v. ANJANI GUPTA & ANR 2022 LiveLaw (Del) 224
Mayur Batra Versus ACIT And Anr. 2022 LiveLaw (Del) 225
ANHEUSER-BUSCH LLC v. MR. SURJEET LAL & ANR. 2022 LiveLaw (Del) 226
x v. Y 2022 LiveLaw (Del) 227
ALOK KUMAR TIWARI v. MAMTA 2022 LiveLaw (Del) 228
x v. Y 2022 LiveLaw (Del) 229
Sushil Kumar Dhar v. Union of India 2022 LiveLaw (Del) 230
M/s Pashupati Properties Estate Private Limited Versus Commissioner of Central Taxes 2022 LiveLaw (Del) 231
NEETA BHARDWAJ & ORS. v. KAMLESH SHARMA 2022 LiveLaw (Del) 232
KARAMJIT SINGH v. STATE (N.C.T. OF DELHI) 2022 LiveLaw (Del) 233
KENT RO SYSTEM LTD. & ANR. v. GATTUBHAI & ORS. 2022 LiveLaw (Del) 234
IMAGINE MARKETING PRIVATE LIMITED v. M/S GREEN ACCESSORIES THROUGH: ITS PROPRIETOR AND ANR 2022 LiveLaw (Del) 235
KINRI DHIR v. VEER SINGH 2022 LiveLaw (Del) 236
UNION OF INDIA v. CENTRAL INFORMATION COMMMISSION & ANR 2022 LiveLaw (Del) 237
GURJIT SINGH SANDHU v. STATE OF NCT OF DELHI 2022 LiveLaw (Del) 238
FOOMILL PVT. LTD. v. AFFLE (INDIA) LTD. 2022 LiveLaw (Del) 239
SANJAY GUPTA v. THE STATE & ANR. 2022 LiveLaw (Del) 240
UNION BANK OF INDIA & ANR. v. SH D.C. CHATURVEDI & ANR. and other connected matter 2022 LiveLaw (Del) 241
JUDGMENTS/ ORDERS THIS WEEK
1. 'Apprehension Must Be Real': Delhi High Court Imposes 25K Cost On Litigant Alleging Judicial Bias Without Any Material
Case Title: ANKUR MUTREJA v. AVIATION EMPLOYEES BUILDING SOCIETY LTD
Citation: 2022 LiveLaw (Del) 215
Calling it an extreme example of abuse of process, the Delhi High Court has imposed cost of Rs. 25,000 on a litigant who had accused a Trial Court judge of being biased against him. The High Court opined that the allegations were levelled without any material.
Justice C Hari Shankar was of the view that though the standard of bias is one of apprehension rather than of proof, the apprehension has to be real and not merely chimerical or fanciful or a method to somehow try one's luck before another Court.
Furthermore, the Court said that every judicial officer is expected to act without fear or favour, affection or ill will and that it is the solemn oath which every judicial officer subscribes to, at the time of entering into his office.
2. Delhi High Court Refuses To Hear Plea For Recovery Of ₹1 Trillion Debt Allegedly Owed By Pakistan To India
Case Title: Om Sehgal v. Union of India
Citation: 2022 LiveLaw (Del) 216
The Delhi High Court has refused to entertain a PIL seeking recovery of ₹1 trillion debt allegedly owed by Pakistan to India. Stating that the plea involves issues pertaining to government policy, the Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla refused to interfere in the matter.
Om Sehgal, party in person, produced several documents to argue that India has loaned approximately ₹300 crore to Pakistan, popularly known as 'Pre-partition Debt'. He claimed that the sum to be repaid with interest now amounts to over 1 trillion rupees. However, it is averred that Pakistan has not paid even a single installment of debt or interest for any single year during past 75 years. Nevertheless, India has still not declared the debt as NPA.
He therefore sought directions to the Ministry of Home Affairs and the Ministry of Finance to take immediate steps for recovery of the sum, allegedly being used to "attack India".
3. Regional Labour Commissioner Cannot Exercise Adjudicatory Powers In Proceedings Under Sec. 33(1) Of Industrial Disputes Act: Delhi High Court
Title: M/S GARRISON ENGINEER (CENTRAL), DELHI CANTT v. M.J. PRASAD & ORS.
Citation: 2022 LiveLaw (Del) 217
The Delhi High Court has observed that the Regional Labour Commissioner has limited powers in proceedings under sec. 33C(1) of the Industrial Disputes Act, 1947 and cannot exercise adjudicatory powers to ascertain whether the benefits claimed were due in the first place or not.
Justice Pratibha M Singh was dealing with a petition challenging the orders dated 30th October, 2019, 27th July, 2020, and 20th August, 2020 by which notice for recovery for a sum of Rs.1,95,980 and for attachment of property under Sections 136 and 139 of the Delhi Land Reforms Act, 1954, were issued to the Petitioner Management by the SDM, Delhi Cantt. and by the Regional Labour Commissioner (Central), Delhi.
It was the case of the Workman that the recovery of the said sum constitutes the amounts payable to him, towards Modified Assured Career Progression/ Assured Career Progression (MACP/ACP) on the ground that his reinstatement had been ordered and therefore, he ought to be deemed to have been in service as the termination was held void ab initio.
The claim of MACP/ACP benefits was allowed by the Regional Labour Commissioner under Section 33C(1) of the Industrial Disputes Act, 1947. Consequential orders were then passed for attachment and for recovery of the said amounts vide the impugned orders.
4. "Heinous Crime": Delhi High Court Denies Bail To Woman Accused Of Trafficking Minor
Case Title: POONAM v. STATE NCT OF DELHI
Citation: 2022 LiveLaw (Del) 218
The Delhi High Court has denied bail to a woman accused of trafficking a minor tribal girl aged 14 years, noting that it was unfortunate that an innocent girl of tender age was subjected to heinous crimes and was severely abused, exploited and tortured by several people.
"The offences under Sections 370 and 376 of the I.P.C are grave and serious in nature and have adverse social implications. The petitioner has been charged for trafficking a minor girl which is in itself a heinous offence," Justice Chandra Dhari Singh observed.
The FIR was registered under Section 370 (Buying or disposing of any person as a slave), 376D (Intercourse by any member of the management or staff of a hospital with any woman in that hospital), 376(2)(n) (Rape), 323 (Voluntarily causing hurt), 506 (Criminal intimidation), 120B (Criminal conspiracy) and 34 of the Indian Penal Code, 1860.
5. Trademark Infringement: Delhi High Court Grants Interim Injunction In Favour Of Khadi & Village Industries Commission
Case Title: KHADI & VILLAGE INDUSTRIES COMMISSION
Citation: 2022 LiveLaw (Del) 219
The Delhi High Court has granted interim injunction in favour of Khadi & Village Industries Commission in a trademark infringement suit observing that the use of the word 'KHADI' as mark, trading style and corporate name by the defendants was illegal and unlawful.
Justice Pratibha M Singh was dealing with a suit filed by the Plaintiff-Commission, registered proprietor of various word marks and device marks bearing word 'KHADI' in Hindi and English, both in artistic form as also in logo form along with the 'Charkha Logos'.
The Defendants were a partnership firm namely 'KHADI BY HERITAGE'. It was the case of the plaintiff that the Defendants were using the trading style 'KHADI BY HERITAGE', the corporate name KHADI BY HERITAGE as also the mark 'KHADI BY HERITAGE' and the 'Charkha Logo' in various forms.
6. Framing Of Charge- Probative Value Of Materials Cannot Be Gone Into, Material Brought On Record By Prosecution To Be Accepted As True: Delhi HC
Title: SETTU v. STATE NCT OF DELHI
Citation:2022 LiveLaw (Del) 220
The Delhi High Court has observed that at the stage of framing of a charge, the probative value of materials on record cannot be gone into and that such material brought on record by the prosecution has to be accepted as true at that stage.
Justice Rajnish Bhatnagar added that it is not obligatory for the judge at the stage of framing of charges to consider in detail and weigh in a sensitive balance as to whether the facts, if proved, would be incompatible with the innocence of the accused or not.
"The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under Section 227 or under Section 228 of the Code. But at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused," the Court said.
7. Examine Feasibility Of Enacting A Law For Regulating Activities Of 'Private Detectives': Delhi High Court To Centre
Case Title: Radha Bisht v. Union of India & Ors.
Citation: 2022 LiveLaw (Del) 221
The Delhi High Court has disposed of a PIL seeking regulation of activities of private detectives and their agencies.
While refusing to issue guidelines in the subject matter, the Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla observed, "It is not for the court to direct framing of law. No mandamus in this regard can be issued."
It however directed the Central Government to consider the plea as a representation and examine the aspect whether it is considered feasible to frame a law for regulation of activity of private detection.
Filed through Advocate Preeti Singh, the plea highlighted that the work of the private detectives, investigators, and their agencies remains outside the purview of any existing statutory framework.
8. Transaction, Being Revenue Neutral, Does Not Affect The Interest Of Revenue, Delhi High Court Directs Refund
Case Title: Ericsson India Private Limited Versus Assistant Commissioner Of Income Tax
Citation: 2022 LiveLaw (Del) 222
The Delhi High Court Bench of Justice Rajiv Shakdher and Justice Jasmeet Singh has directed the department to release the refund as the transaction was revenue neutral, and did not affect the interest of revenue.
The petitioner/assessee filed three writ petitions in which the court granted six weeks to the respondents/department to pass a fresh order. The court directed the department to bear in mind probable additions that may have to be made in the scrutiny assessment proceeding, based on a prima facie estimation along with the reasons. The court has further directed the department to be mindful of the quantum of additions and disallowances, if any, on the basis of estimations and their likely tax impact; and the financial wherewithal of the assessee and its ability to meet and service any demand for tax that may be raised against it.
After the judgement was rendered by the court, the department refunded Rs. 561.72 crores (including interest) to the petitioner-assessee in respect of Assessment Year 2017-2018.
9. "Inordinate Delay In Trial, Prolonged Judicial Custody": Delhi High Court Grants Bail To Man Incarcerated For Almost 8 Yrs In NDPS Case
Case Title: ANIL KUMAR @ NILLU v. STATE
Citation: 2022 LiveLaw (Del) 223
The Delhi High Court has granted bail to a man incarcerated for almost 8 years in connection with a case registered under Narcotic Drugs and Psychotropic Substances Act, 1985, on account of inordinate delay in his trial and prolonged judicial custody.
Justice Subramonium Prasad observed that there was an "egregious violation of an accused's right to personal liberty and right to speedy trial" as, in the off-chance that the Petitioner is acquitted, it would entail an irretrievable loss of eight years of his life that cannot be compensated.
Emphasizing that fair, just and reasonable procedure is implicit in Article 21 and it creates a right in the accused to be tried speedily, the Court observed:
"This Court has consistently observed that while Courts must remain cognizant of the deleterious impact of drugs on society, it is also important to keep in mind that deprivation of personal liberty without the assurance of speedy trial contravenes the principles enshrined in our Constitution. In the instant case, the Petitioner has been incarcerated for almost eight years now, i.e. since 27.03.2014, for an offence that is punishable with a minimum imprisonment of ten years."
"This is an egregious violation of an accused's right to personal liberty and right to speedy trial as, in the off-chance that the Petitioner is acquitted, it would entail an irretrievable loss of eight years of his life that cannot be compensated."
10. Wife Opposing Husband's Plea For Restitution Of Conjugal Rights Does Not Affect Her Right Of Residence Under Domestic Violence Act: Delhi High Court
Case Title: OM PRAKASH GUPTA & ANR v. ANJANI GUPTA & ANR
Citation: 2022 LiveLaw (Del) 224
The Delhi High Court has observed that the right of residence under the Domestic Violence Act, 2008 is exclusive to and isolated from any right that may arise under Section 9 of the Hindu Marriage Act, 1955, which pertains to restitution of conjugal rights.
Justice Chandra Dhari Singh was dealing with a plea filed by a couple, challenging the order of the Additional Sessions Judge confirming the residence Orders in favour of their son's wife, Respondent No.1.
The relationship between the Respondent wife and her in-laws was cordial in the beginning, however, it started to deteriorate with time. The Respondent left her matrimonial home on 16th September, 2011. Consequently, more than 60 cases, both civil and criminal, were filed by the parties against each other. One of these cases were initiated by the Respondent-wife under the Protection of Women from Domestic Violence Act, 2005 and during the proceedings the Respondent claimed right to residence in the property in question.
11. Income Tax Authority Did Not Consider The Reply Filed By Assessee; Delhi High Court Sets Aside Penalty Imposed And Directs Fresh Consideration
Case Title: Mayur Batra Versus ACIT And Anr.
Citation: 2022 LiveLaw (Del) 225
The Delhi High Court has ruled that a penalty order passed by the income tax authority under Section 271(1)(c) of the Income Tax Act, 1961 without granting a hearing to the assessee is violative of the principles of natural justice.
The Bench, consisting of Justices Manmohan and Dinesh Kumar Sharma, quashed the penalty order and remanded the matter back to the income tax authority for fresh adjudication.
The Petitioner/Assessee Mayur Batra filed a writ petition before the Delhi High Court challenging the penalty levied on him under Section 271(1)(c) of the Income Tax Act, 1961.
The Assessee contended before the High Court that the income tax authority had not considered the replies filed by the Assessee nor was a personal hearing granted to the Assessee before passing the penalty order under Section 271(1)(c) of the Act.
Section 271(1)(c) of the Income Tax Act, 1961 empowers the income tax authority to impose penalty on any person if it is satisfied that the person has concealed the particulars of his income or furnished inaccurate particulars of such income.
12. Using Recycled Bottles Of Another Manufacturer Results In Infringement & Passing Off: Delhi High Court Rules In Favour Of 'BUDWEISER'
Case Title: ANHEUSER-BUSCH LLC v. MR. SURJEET LAL & ANR.
Citation: 2022 LiveLaw (Del) 226
The Delhi High Court has restrained the owner of trademark 'BLACK FORT' and 'POWER COOL' from manufacturing or selling under the trademark 'BUDWEISER' in recycled bottles, or in any other manner, in respect of beer manufactured and sold by it.
Ruling in favour of Anheuser-Busch LLC, owner of trademark 'BUDWEISER', Justice Pratibha M Singh was of the view that the use of recycled 'BUDWEISER' beer bottles for the products being sold under the mark 'BLACK FORT' and 'POWER COOL' by the Defendant Company would clearly constitute `use in the course of trade'.
It added that the fact that the same were recycled bottles would not make a difference insofar as the question of infringement or passing off was concerned.
13. Accusations Of Extra Marital Relationship "Grave Assault" On Health & Character Of Spouse: Delhi High Court Upholds Divorce Decree
Case Title: x v. Y
Citation: 2022 LiveLaw (Del) 227
Upholding a Family Court order granting decree of divorce in favour of the husband, the Delhi High Court has dismissed wife's appeal noting that accusations of unchastity or extra marital relationship is a grave assault on the character as well as health of the spouse against whom such allegations are made.
A division bench comprising of Acting Chief Justice Vipin Sanghi and Justice Dinesh Kumar Sharma also added that while such allegations of extra marital affairs causes mental pain, agony suffering and tantamount to cruelty, the tendency of making false allegations must be deprecated by the Courts.
The Court was of the view that the Family Court had correctly appreciated the evidence and had rightly found that the appellant wife, by making unfounded allegations amounting to character assassination against the respondent husband and his father, had inflicted mental cruelty upon the the husband.
14. Subordinate Court Cannot Initiate Contempt Proceedings Itself, Can Only Make Reference To 
High Court: Delhi High Court Reiterates
Title: ALOK KUMAR TIWARI v. MAMTA
Citation: 2022 LiveLaw (Del) 228
The Delhi High Court has reiterated that the subordinate court can only make a reference to the High Court and that it cannot initiate contempt proceedings by itself.
Justice Anu Malhotra placed reliance on the judgments delivered by the Delhi High Court in Nusrat Ali v. State & Anr., Rajeev Mittal v. Sanjay Goel and Neville A Mehta v. Sanjay Goel as well as the provisions of sec. 10, 11 and 15(2) of Contempt of Courts Act, 1971.
The petitioner had sought the quashing of a complaint filed by the respondent under Section 10 read with Section 12 of the Contempt of Courts Act, 1971 and a notice dated April 6, 2021 issued by the Metropolitan Magistrate to the effect that the Trial Court could not have proceeded in view of the sec. 10, 11, 12, 13, 14 and 15 of the Act.
The Court noted that the reply filed by the respondent to the plea made it apparent that the respondent did not challenge the aspect of contempt proceedings being required to be initiated by the High Court court or the superior court and not by the subordinate courts.
15. 'Keeping Legal Bond Alive Would Snatch Away Opportunity To Lead Fulfilling Life': Delhi HC Waives Cooling Off Period For Divorce By Mutual Consent
Case Title: x v. Y
Citation: 2022 LiveLaw (Del) 229
Passing a decree of divorce by mutual consent, the Delhi High Court has waived off the six months cooling off period as stipulated under Hindu Marriage Act after observing that keeping the couple tied to a legal bond would only mean snatching away from them the opportunity to lead a fulfilling life.
A division bench comprising of Acting Chief Justice Vipin Sanghi and Justice Dinesh Kumar Sharma set aside an order passed by the Family Court wherein the second motion petition moved by the parties jointly under sec. 13B (2) of the Act was rejected on the ground that the statutory period of six months from the date when the first motion was moved, and period of 18 months from the date of separation, had not expired.
The High Court took note of the fact that both the parties were well educated and independent individuals who had mutually decided the fate of their marriage.
16. Kashmiri Migrants Retiring From Govt Service Not Entitled To Retain Govt Accommodation: Delhi High Court Affirms
Case Title: Sushil Kumar Dhar v. Union of India
Citation: 2022 LiveLaw (Del) 230
The Delhi High Court has upheld an order passed by the Single Judge, denying relief to a Kashmiri migrant who had retired from government service and sought permission to retain the government accommodation allotted to him for a period three years.
The Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla observed,
" We are not inclined. It is not that they (government authorities) are discriminating against you (appellant). If we permit this, what happens to other people waiting in queue for govt accommodation? Govt doesn't have unlimited accommodation."
The Bench was hearing an intra-court appeal, preferred against order dated February 16, passed by Justice V Kameswar Rao, dismissing a batch of petitions filed by government servants who are retired Kashmiri Migrants, challenging their eviction from the government quarters in Delhi.
17. GST Provisional Attachment Order Not Valid After Expiry Of 1 Year: Delhi High Court
Case Title: M/s Pashupati Properties Estate Private Limited Versus Commissioner of Central Taxes
Citation: 2022 LiveLaw (Del) 231
The Delhi High Court bench of Justice Manmohan and Justice Sudhir Kumar Jain has held that every provisional attachment order ceases to have effect after the expiry of a period of one year from the date the order was passed under Section 83(1) of the CGST Act.
The petitioner/assessee challenged the letter issued under Section 83 of the CGST Act, 2017 by which the respondent/department had directed the bankers of the petitioner to provisionally attach immovable property in the name of the petitioner.
The petitioner had prayed for the directions to release/de-freeze the immovable property of the petitioner that was provisionally attached.
Counsel for the respondent submitted that after December 1, 2020, no fresh attachment order was issued. He further clarified that no show cause notice under Section 74 of the CGST Act has been issued to the petitioner till date.
18. Kalkaji Temple Redevelopment: High Court Orders Delhi Police To Proceed With Eviction Of Unauthorised Occupants
Case Title: NEETA BHARDWAJ & ORS. v. KAMLESH SHARMA
Citation: 2022 LiveLaw (Del) 232
In a matter concerning the redevelopment of city's Kalkaji temple, the Delhi High Court has directed the Delhi Police to proceed with the eviction of unauthorized occupants of jhuggis and dharamshalas present in the temple premises.
Justice Pratibha M Singh took into consideration the stand taken by such unauthorised occupants that they will neither vacate nor opt for the flats on rent or rain basera.
The Court said that the eviction of the said occupants had a sense of urgency in view of the upcoming Navratra festival commencing from 2nd April, 2022 and the fact that proper arrangements will have to be made for the entry and exit of the lakhs of devotees who visit the temple during the said period.
However, on March 25, the Supreme Court refused to interfere the plea challenging the eviction order.
The bench of Justices DY Chandrachud and Surya Kant, while refusing to interfere with the order, granted petitioner the liberty to approach the Administrator appointed by the High Court for redressal of grievances.
19. 'No Conscious Possession': Delhi High Court Quashes FIR U/S 25 Arms Act For Carrying Live Ammunitions In Flight Check-In Baggage
Case Title: KARAMJIT SINGH v. STATE (N.C.T. OF DELHI)
Citation: 2022 LiveLaw (Del) 233
The Delhi High Court recently quashed a FIR registered under the Arms Act against a NRI, who was travelling from Delhi to Dubai in February this year, when two live ammunitions were detected in his flight check-in baggage.
While allowing the plea filed by the petitioner-accused under Articles 226 and 227 of the Constitution of India read with Section 482 of CrPC, Justice Asha Menon observed,
" There is no prima facie evidence that he had any mala fide intent in keeping the ammunition. The safety of passengers was not threatened. The possession was not conscious. "
As per the prosecution, the petitioner was unable to prove that he was not in the conscious possession of the cartridges.
20. "Gross Suppression Of Material Facts": Delhi High Court Vacates Ex-Parte Ad-Interim Injunction Granted In Favour Of Kent RO
Case Title: KENT RO SYSTEM LTD. & ANR. v. GATTUBHAI & ORS.
Citation: 2022 LiveLaw (Del) 234
The Delhi High Court has vacated an ex-parte ad-interim injunction granted in favour of Kent RO System Limited on the grounds of gross suppression and concealment of material facts.
Justice Amit Bansal was dealing with a suit filed by Kent RO System Limited claiming that the trademark KENT was adopted by it in the year 1988 in respect of products relating to petroleum conservation. In 1999, the plaintiffs started using the mark KENT in respect of its water purifier systems.
The defendant no 1 claimed to own and control an enterprise, Kent Appliances. The defendants no.2 and 3 carried on business under the name and style of Shilpa Electricals in respect of sale of electrical and home appliances.
It was the plaintiff's case that besides holding the trade mark registration for the mark KENT, it also held the copyright registration in respect of its logo. In and around March, 2019, the plaintiffs came to know of the defendants selling products such as thermo flasks and other home appliances under the identical mark of KENT.
21. Delhi High Court Grants ₹15 Lakhs Monetary Damages To Owner Of Trademark 'BOAT' Over Seizure Of Counterfeit Products
Case Title: IMAGINE MARKETING PRIVATE LIMITED v. M/S GREEN ACCESSORIES THROUGH: ITS PROPRIETOR AND ANR
Citation: 2022 LiveLaw (Del) 235
The Delhi High Court has ordered a total of Rs. 15 lakhs monetary damages to be paid the owner of trademark 'BOAT' over seizure of various counterfeit products based on inspection made by Court appointed Local Commissioners.
Justice Pratibha M Singh was of the view that the Defendants had blatantly infringed the trademark and logos as also the packaging of the Plaintiff's products.
Therefore, considering the quantum of counterfeit products which were seized, the Court decreed the suit against the two defendants no. 1 and 6. While the suit was decreed against the Defendant No.1 for a sum of Rs. 5 lakhs, the same was done against the Defendant No. 6 for a sum of Rs.10 lakhs.
The Court directed the said defendants to make payment of the said amount to the Plaintiff within a period of two weeks. It however said that since no products were found in the premises of Defendant No.3, no monetary damages were being imposed on it.
22. Delhi High Court Upholds Right Of Putative Father To Visit Minor Child
Case Title: KINRI DHIR v. VEER SINGH
Citation: 2022 LiveLaw (Del) 236
The Delhi High Court has observed that a putative father is entitled to visitation rights and that a minor child must not be insulated from parental touch and influence of other parent for his personal growth and development.
"It cannot be disputed that the respondent, being a putative father shall be entitled to visitation rights. While determining and granting such rights, more so when the child is of less than three years of age, surely his well-being / welfare is of paramount importance. At the same time, the minor must not be insulated from parental touch [Ref: Ruchi Majoo (supra)] and influence of the other parent for healthy growth of child and development of his personality," the Court said.
Noting that the tender age of the minor child, who was less than three years old, Justice V Kameswar Rao modified the impugned order dated October 28, 2021 passed by the Family Court which had granted visitation rights of the minor child to the putative father for two hours every day.
The Court modified the order and directed that instead of daily, the respondent putative father shall have visitation rights on alternate weekdays being three days in a week.
23. Enforcement Directorate Exempted From RTI Act Except When Information Relates To Allegations Of Corruption Or Human Rights Violation: Delhi HC
Case Title: UNION OF INDIA v. CENTRAL INFORMATION COMMMISSION & ANR
Citation: 2022 LiveLaw (Del) 237
The Delhi High Court has observed that the Enforcement Directorate being an intelligence and security organization as specified in Second Schedule of Right to Information Act is exempted from the purview of the Act except when the information pertains to allegation of corruption and human rights violation.
Justice Manmohan and Justice Sudhir Kumar Jain was dealing with a plea concerning an RTI application filed by a Superintendent (respondent in the matter) working in the Administration with of Enforcement Directorate.
The said application sought copies of all the seniority list in respect of Lower Division Clerks (LDCs) for the period of 1991 till date as also the copies of proposal for promotion of LDCs placed before the DPC together with copies of the Minutes of the Meetings and copies of the promotion orders issued on the recommendations of the DPC from time to time.
The CIC had directed the said information to be provided to the respondent. However, the said order was challenged by the Union of India before a Single Judge which had dismissed the said plea vide order dated 7th December 2018.
24. "Prima Facie Offence Under Arms Act": Delhi High Court Refuses To Quash FIR Against Canadian Citizen With 50 Live Cartridges In Flight Baggage
Case Title: GURJIT SINGH SANDHU v. STATE OF NCT OF DELHI
Citation: 2022 LiveLaw (Del) 238
The Delhi High Court has refused to quash an FIR registered against a Canadian citizen whose flight check-in baggage was found with 50 live cartridges. The Court observed that prima facie, there was commission of offence under the Arms Act, 1959.
Justice Subramonium Prasad dismissed a petition filed seeking quashing of an FIR registered under sec. 25 of the Arms Act. The petitioner being a Canadian citizen, held an Overseas Citizen of India card.
According to the facts of the case, the petitioner had arrived in Delhi from Canada in February last year and was supposed to catch a connecting flight from New Delhi to Amritsar on February 10, 2021.
25. Mere Use Of Word 'Arbitration' In Agreement Clause Heading Would Not Infer Existence Of Agreement Between Parties To Resolve Disputes Through Arbitration: Delhi HC
Title: FOOMILL PVT. LTD. v. AFFLE (INDIA) LTD.
Citation: 2022 LiveLaw (Del) 239
The Delhi High Court has observed that the mere use of word 'Arbitration' in the heading in the Clause of Agreement would not lead to the inference that there exists an agreement between such parties seeking resolution of disputes through arbitration.
Justice Mukta Gupta referred to a 2014 decision of the Delhi High Court in Avant Garde Clean Room & Engg. Solutions Pvt. Ltd. v. Ind Swift Limited wherein the Court had dealt with the issue as to whether the use of word 'Arbitration' in the heading of an Agreement would entail existence of an arbitration agreement.
The Court was dealing with a plea seeking appointment of an Arbitrator for resolving the disputes in relation to the software development arising out of the agreement dated 29th July 2021 between the parties and costs.
26. Negotiable Instruments Act| Person Bound To Face Criminal Trial If Cheque Amount Not Paid Despite Notice & Opportunity To Pay: Delhi High Court
Title: SANJAY GUPTA v. THE STATE & ANR.
Citation: 2022 LiveLaw (Del) 240
Emphasising that once a person issues a cheque it must be honoured, the Delhi High Court has observed that such a person is bound to face criminal trial and consequences in case the cheque amount is not paid despite issuance of notice and opportunity to pay the said amount.
Noting that the Negotiable Instruments Act provides sufficient opportunity to a person who issues the cheque, Justice Rajnish Bhatnagar said thus:
"Once a cheque is issued by a person, it must be honored and if it is not honored, the person is given an opportunity to pay the cheque amount by issuance of a notice and if he still does not pay, he is bound to face the criminal trial and consequences."
The Court was of the view that once issuance of a cheque and signature are admitted, the presumption of a legally enforceable debt in favour of the holder of the cheque arises.
27. Gratuity Can Be Forfeited If Employee Terminated For Causing Damage To Employer's Property, Forfeiture Not To Exceed Extent Of Loss: Delhi HC
Case Title: UNION BANK OF INDIA & ANR. v. SH D.C. CHATURVEDI & ANR. and other connected matter
Citation: 2022 LiveLaw (Del) 241
The Delhi High Court has observed that any employer can forfeit the gratuity of an employee if the employee is terminated for any act or omission or negligence causing any damage or loss to the property belonging to the employer.
Justice Pratibha M Singh however added that such forfeiture can only be to the extent of the damage or loss caused, and not beyond that.
The Court was dealing with two petitions pertaining to disputes between employee and Union Bank of India. In one of the petitions, a chargesheet was issued against the employee alleging that loans were issued by him accommodating certain parties which caused losses to the Bank.
In another matter, chargesheet was issued against the employee alleging that he was involved in lending loans in blatant violation of lending norms without completing the requisite formalities, sanctioning higher amounts of loans to borrowers whose earlier loans were either NPA or overdue, which allegedly caused losses to the Bank.
Thus, the two aspects to be considered in the cases by Court was, First, whether forfeiture of gratuity is permissible and, if so, in what manner is it to be effected and Secondly, whether long delay in approaching to Controlling Authority can result in rejection of the claim for gratuity.
IMPORTANT WEEKLY UPDATES
1. "Where Is Communal Intent In Speech?" Delhi High Court Reserves Judgment On Brinda Karat's Appeal Seeking FIR Against Anurag Thakur & Parvesh Verma
The Delhi High Court has reserved its judgment on a plea filed by CPM leader Brinda Karat and politician KM Tiwari against a trial court order rejecting her plea for registration of FIRs against BJP leaders Anurag Thakur and Parvesh Verma for allegedly delivering hate speeches in the year 2020.
The plea refers to various speeches made by the two politicians including the speech dated January 27, 2020 given by Anurag Thakur at a rally shouting the slogan "desh ke gaddaron ko, goli maaron saalon ko".
Reference was also made to another speech made by Parvesh Verma dated January 27-28, 2020, while campaigning for Bhartiya Janata Party and subsequently in an interview given to ANI.
The plea alleges that the speech threatened use of force to remove protestors who were protesting at Shaheen Bagh in the wake of Citizenship Amendment Act (CAA) and to promote hatred and enmity against Muslim persons by portraying them as invaders who will enter houses and rape and kill people.
Questioning the petitioners' counsel over the criminality attached to the alleged hate speeches, Justice Chandra Dhari Singh orally remarked thus:
"Was the speech made in front of agitation point? That is why I am saying, Ye log, indicate to whom? Not for any particular community. Ye log can be anybody. How you can translate or think about this? There is no direct instigation. I am not on the point what it was meant for because we are in this writ petition is dealing only with legal issue."
He added "Where is the communal intent in that speech?"
2. Your Steps Not Yielding Results, How Can Same Problem Recur Year After Year? Delhi HC To Municipal Corporations Over Mosquito Infestation
The Delhi High Court has reiterated its directions for incorporating a 'common protocol' to be followed by all the local authorities for dealing with the menace of mosquito infestation and spreading of vector borne diseases in the national capital.
The Division Bench of Acting Chief Justice Vipin Sanghi and Justice Jasmeet Singh expressed its dissatisfaction over the status report filed by the municipal corporations in terms of its orders dated January 14, 2022 and February 5, 2022.
The bench had taken suo moto cognizance of the issue of large scale mosquito breeding in the city, resulting in vector borne diseases such as Malaria, Chikungunya and Dengue every year.
3. Gravity Of Offence Can't Be Overlooked While Applying Triple Test For Bail: Prosecution Opposes Sharjeel Imam's Plea In Anti-CAA Speeches Case
The State has opposed Sharjeel Imam's bail plea before the Delhi High Court in a case relating to the alleged inflammatory speeches made by him in Aligarh Muslim University and Jamia area in Delhi against the Citizenship Amendment Act.
The prosecution has argued that the severity and gravity of the offence which Imam has been charged with cannot be overlooked in any manner before applying the Triple test for bail.
Imam was booked vide FIR 22/2020 by the Delhi Police. The alleged offence under UAPA was added later.
The Trial Court had framed charges against Imam in the matter under Sections 124A (sedition), 153A (Promoting enmity between different groups on grounds of religion, etc.), 153B (Imputations, assertions prejudicial to national integration), 505 (Statements conducing to public mischief) of the IPC along with Section 13 (Punishment for unlawful activities) of the UAPA.
Gauhati High Court
Case title - Md. Taher Ahmed Barbhuiya v. The State of Assam and another
Case Citation: 2022 LiveLaw (Gau) 19
The Gauhati High Court recently refused to quash an FIR registered against a man booked under the Unlawful Activities(Prevention) Act 1967 and Indian Penal Code for allegedly praising and glorifying 'Tehreek-e-Taliban' through his Facebook Post.
"At this initial stage it cannot be said that the action incorporated in Clause (a), (b), and (c) of Sub-Section (1) of Section 39 of the Unlawful Activities (Prevention) Act is not done with the intention to further the activities of a terrorist organization," remarked the Bench of Justice Robin Phukan as it refused to quash the FIR.
Case Title: Sri Kulendra Nath Kakati & Anr. v. Sri Bhabesh Baruah & Ors.
Citation: 2022 LiveLaw (Gau) 20
The Gauhati High Court has held that the term 'any person' appearing under Order XXI Rule 97(1) denotes 'all persons', even including 'strangers' to the original suit. Notably, the said provision deals with "resistance or obstruction to possession of immovable property".
While interpreting the sub-rule, a Single Judge Bench of Justice Robin Phukan held,
"However, a person, including a stranger, could maintain a petition under Rule 97 of Order XXI and object and get adjudication when he sought to be dispossessed by the decree holder. The expression 'any person' under sub-clause (1) Rule 97 includes 'all person'."
Case Title: Mr. Limhathung v. The State of Nagaland
Citation: 2022 LiveLaw (Gau) 21
The Kohima Bench of the Gauhati High Court has recently held that criminal proceedings in heinous offences like 'attempt to rape of a minor' cannot be quashed on the sole basis of a compromise/settlement entered into by her parents with the accused.
A Single Judge Bench of Justice Arun Dev Choudhury observed, "It is also settled that offences which involve moral turpitude and grave offences like rape, murder etc. even if compromised cannot be quashed in exercise of High Court's power under Section 482 Cr.P.C. inasmuch as such offences are against the State and cannot be restricted to two individuals or groups."
Gujarat High Court
NOMINAL INDEX
Janakbhai @ Alpeshbhai Mafatbhai Rabari & 1 Other(S) Versus State Of Gujarat 2022 LiveLaw (Guj) 82
Mansukhbhai Valjibhai Kumarkhaniya (Devipujak) & 3 Other(S) Versus State Of Gujarat & 5 Other(S) 2022 LiveLaw (Guj) 83
Bharatbhai Jayantilal Patel (Deleted) v. State Of Gujarat 2022 LiveLaw (Guj) 84
Dilip Bhavanishankar Yadav v. State Of Gujarat 2022 LiveLaw (Guj) 85
Mayank Jayantbhai Shah S/O Jayant Manharlal Shah Versus State Of Gujarat 2022 LiveLaw (Guj) 86
A B C (Victim) vs State Of Gujarat 2022 LiveLaw (Guj) 87
Shantaben Ambalal Patel & 1 Other(S) Versus Sunitaben Vijaykumar Joshi 2022 LiveLaw (Guj) 88
Chauhan Mahmadrafik Abdul Latif Versus Oil And Natural Gas Corporation Limited Through Authorized Person 2022 LiveLaw (Guj) 89
M/s New Nalbandh Traders Versus State of Gujarat 2022 LiveLaw (Guj) 90
Manoj @ Munnabhai Ashwinbhai Somabhai Parmar Versus Director General Of Police 2022 LiveLaw (Guj) 91
Ramsingbhai Saburbhai Patel vs State Of Gujarat 2022 LiveLaw (Guj) 92
Union Of India Thro Amitkumar, Intelligence Officer Or His Successor In Office Versus State Of Gujarat 2022 LiveLaw (Guj) 93
Judgments/Orders of the Week
Case Title: Janakbhai @ Alpeshbhai Mafatbhai Rabari & 1 Other(S) Versus State Of Gujarat
Citation: 2022 LiveLaw (Guj) 82
The Gujarat High Court permitted compounding of offence under Section 323 of IPC, notwithstanding that the accused was also originally charged under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The Bench comprising Justice Ashokkumar Joshi noted that the Court below had acquitted the Petitioners-accused for alleged commission of offences under Sections 504, 506(2), 427 read with 114 of the IPC and Sections 3(1)(x) of the SC/ST Act and no appeal against such acquittal was preferred by the complainant/ State.
Case Title: Mansukhbhai Valjibhai Kumarkhaniya (Devipujak) & 3 Other(S) Versus State Of Gujarat & 5 Other(S)
Citation: 2022 LiveLaw (Guj) 83
The Gujarat High Court has come down heavily on the police for being "swayed by the fact that the Petitioners belong to a particular community" while investigating activities of theft and other wrongs under Sections 328 and 394 of IPC has expressed dismay at the "apathy of the police officials, more particularly senior officers…"
Justice Nikhil Kariel was hearing a special criminal application filed by the Petitioners involving "extreme excess" by the police authorities including senior officers of the level of DySP and SP who were responsible for conducting an impartial inquiry. The Bench noted that the victims, members of a certain community, were earning their living through honest occupation when an FIR was filed against two unknown males and unknown females. According to the inquiry conducted by Respondent No. 6, the Petitioners 1 and 2 (brothers) were passing on a motorbike and were intercepted by the police. When they did not stop, they slipped and were caught by the police. It was observed that the only evidence against the Petitioners was their own confession which was used for submitting the chargesheet. Subsequently, the charges against the Petitioners did not stand during trial.
Case Title: Bharatbhai Jayantilal Patel (Deleted) v. State Of Gujarat
Case Citation - 2022 LiveLaw (Guj) 84
The Gujarat High Court recently granted anticipatory bail to the Applicants-accused in connection with an alleged case of cheating to the tune of Rs. 1,000 crore.
It was alleged that the applicants had misused terms and conditions of agreement and disbursed only Rs. 9 crore, with object to take over the company and its properties worth approximately Rs.1000 crores.
While allowing the plea for pre-arrest bail filed by the accused charged for alleged commission of offences under Section 120B, 420, 406 and 114 of IPC, Justice Ilesh Vora said,
"prima-facie, it appears that the dispute is purely a civil in nature. The principal accused Bharat Patel is passed away. The applicants have cooperated in the investigation. Whole case is based on documentary evidence and same has been collected by the IO during the course of investigation."
Case Title: Dilip Bhavanishankar Yadav v. State Of Gujarat
Case Citation: 2022 LiveLaw (Guj) 85
"Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 2(b) of the Gujarat Prevention of Anti Social Activities Act, 1985", the Gujarat High Court has opined.
The Bench comprising Justice Rajendra Sareen was hearing a special civil application against the order of detention dated December 2021 against the Petitioner herein under Section 3(2) of the Act.
Case Title: Mayank Jayantbhai Shah S/O Jayant Manharlal Shah Versus State Of Gujarat
Citation: 2022 LiveLaw (Guj) 86
The Gujarat High Court recently granted bail to the Director of a chemical company, in connection with disposal of the hazardous waste material produced by it in a creek, causing injury to two persons.
The Bench comprising Justice Gita Gopi noted that the company had entered into an agreement with M/S Sangam for transporting the waste material to the treatment plant in accordance to CPCB Co-processing guidelines 2016 and 201. Thus, it held,
"Sangam was authorised to provide the work of collection, transportation of hazardous waste material to Dalmia Cement Bharat Limited plants at Odhisa, Karnataka and Bihar, and the authorisation for transportation of hazardous waste materials was in accordance to CPCB Co-processing guidelines 2016 and 2017, and therefore, it would be the responsibility of the transporter to take waste by-products to its destination. The petitioner company or the petitioner himself would have no knowledge of any misdeed of the transporter. The liability would lie on the company who engages the transporter and it is the duty of the transporter to see that the said waste product reaches plant or to its destination."
Case Title: A B C (Victim) vs State Of Gujarat
Citation: 2022 LiveLaw (Guj) 87
The Gujarat High Court recently allowed the plea of a minor rape victim to terminate her 6 weeks old pregnancy, on the ground that if pregnancy continues, it would cause lifelong mental agony to the her coupled with socio-economic problems.
"Petitioner is pregnant because of forcible rape by the accused...because of continuation of pregnancy, it would cause or constitute a grave injury to the mental health of the minor – victim coupled with the fact that bearing and rearing of child in the womb would create a great mental agony to her for her entire life and invite many other socio-economical problems. This can be said to be a grave injury to the mental health of the pregnant woman."
Case Title: Shantaben Ambalal Patel & 1 Other(S) Versus Sunitaben Vijaykumar Joshi
Case Citation: 2022 LiveLaw (Guj) 88
Affirming the settled law that Appellate Courts must not disturb the discretionary order of the Trial Court at interim stage even if second view of the matter is possible, the Gujarat High Court has allowed an appeal challenging lower court's order declining to grant interim injunction in respect of a construction, allegedly interfering with Appellant's easementary rights.
The Bench of Justice AP Thaker ordered status quo with respect to the construction towards the eastern wall of the Plaintiff's residence till both the parties lead their evidence in support of their claim and counter-claim. It said,
"Prima facie, it appears that the plaintiffs have put up this construction in his own land keeping certain portion of land open for common wall. Now, on perusal of the Photograph produced in the matter, it clearly appears that the constructions of the defendant is completely adjacent with the wall of the plaintiffs. At this juncture, it is also pertaining to note that defendant has also filed counter claim for closure of the window and balcony of the plaintiffs which is on the eastern side wall of the property of the plaintiff. Thus, prima-facie it appears that when suit was filed there was no construction, obstructing the window and balcony of the plaintiff's property on the eastern side. Now, there is allegation and counter allegation, regarding the easementary right as well as regarding illegal construction and there is also counter claim for removal of window and balcony. Under these facts and circumstances, it is necessary that status-quo be maintained till both the parties lead their evidence in support of their claim and counter-claim."
Case Title: Chauhan Mahmadrafik Abdul Latif Versus Oil And Natural Gas Corporation Limited Through Authorized Person
Citation: 2022 LiveLaw (Guj) 89
The Gujarat High Court has imposed a fine of INR 50,000 on Oil and Natural Gas Corporation Limited while holding as follows;
"since it prima facie appears that the exclusion of the petitioner was not by an accident and further, in any case, the respondent organization, more particularly, being a Public Sector Undertaking under the Government of India was required to act fairly, more particularly, while considering the candidature of an Ex-Servicemen candidate, which the respondents have not done, hence this is a fit case for imposition of costs. Thus, costs quantified at Rs. 50,000/- (fifty thousand) is also directed to be paid by the respondents to the present petitioner."
9. Department Cannot Block GST ITC Without Assigning Any Reason: Gujarat High Court
Case Title: M/s New Nalbandh Traders Versus State of Gujarat
Citation: 2022 LiveLaw (Guj) 90
The Gujarat High Court bench of Justice J.B. Pardiwala and Justice Nisha M. Thakore has held that the department cannot block the Input Tax Credit (ITC) without assigning any reason to the assessee.
The writ petitioner/assessee, a proprietary concern, is in the business of trading in M.S. scrap for the past 13 years. The proprietary firm purchases the scraps from different suppliers and sells them to different entities.
Case Title: Manoj @ Munnabhai Ashwinbhai Somabhai Parmar Versus Director General Of Police
Citation: 2022 LiveLaw (Guj) 91
"Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 3(1) of the Act," the Gujarat High Court has upheld today.
Justice AP Thaker was hearing a petition against the detention of the Petitioner by the Respondent authorities under Section 3(2) of the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act 1988.
Case Title: Ramsingbhai Saburbhai Patel vs State Of Gujarat
Case No.: 2022 LiveLaw (Guj) 92
The Gujarat High Court has recently quashed and set aside the order of termination of an employee, who was convicted for corruption, on the ground that he was neither given a show cause notice before such termination nor an opportunity to explain his case.
The Bench comprising Justice Biren Vaishnav directed the employer to reinstate the employee to his original post along with consequential benefits and backwages. However, liberty is granted to pass appropriate order afresh in accordance with law after giving an opportunity of hearing to the petitioner and considering the reply which may be filed.
Case Title: Union Of India Thro Amitkumar, Intelligence Officer Or His Successor In Office Versus State Of Gujarat
Citation: 2022 LiveLaw (Guj) 93
The Gujarat High Court has affirmed the acquittal of an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985, on the ground that she was merely accompanying her husband and had no knowledge of contraband being carried in the bag.
The Bench comprising Justice SH Vora remarked that her conscious possession as understood under the law does not surface even a reasonable doubt.
The development ensued in a State-appeal, preferred against the order of Special Judge, acquitting the Accused No. 2 (wife of accused no. 1) for offences under Sections 8(c), 20(b) and 29 of the NDPS Act.
Jharkhand High Court
1. Interest On Belated Filing Of GSTR-3B Return Not Recoverable Without Adjudication: Jharkhand High Court
Case Title: R.K. Transport Private Limited Versus The Union Of India Through The Principal Commissioner, Central Goods And Services Tax And Central Excise, Ranchi And Another.
Citation: 2022 LiveLaw (Jha) 27
The Bench, consisting of Justices Aparesh Kumar Singh and Deepak Roshan, quashed the notice of recovery issued by the authorities under Section 79 of the CGST Act on the ground that the adjudication proceedings under Section 73 or 74 of the CGST Act were not followed by the revenue authorities.
The Jharkhand High Court has ruled that recovery of interest under CGST Act, 2017 for delay in filing the GSTR-3B return cannot be initiated without following any adjudication proceedings under the Act in the event the interest liability is disputed by the assessee.
Case Title: M/s Narsingh Ispat Limited Versus Union of India
Citation: 2022 LiveLaw (Jha) 28
The Jharkhand High Court bench of Justice Aparesh Kumar Singh and Justice Deepak Roshan has quashed the summary order contained in Form GST DRC-07 as the department failed to follow the procedure prescribed in law before issuing a summary of the order on Form GST DRC-07, amounting to a violation of the principle of natural justice.
The petitioner/assessee challenged the circular dated 10.02.2020 issued by the Central Board of Indirect Taxes and Customs (CBIC) which prescribed that interest payable on delayed payment of taxes can be recovered under the provisions of Section 79 read with Section 75 (12) of the CGST Act.
3. No Manufacturing Activity Within State, ITC Cannot Be Denied Under JVAT Act: Jharkhand High Court
Case Title: Exide Industries Limited Versus The State Of Jharkhand And Others.
Citation: 2022 LiveLaw (Jha) 29
The Jharkhand High Court has ruled that Input Tax Credit can be denied on Inter-State sale or transfer of stock under Section 18(8)(ix) of the Jharkhand Value Added Tax Act, 2005 only when some manufacturing activity is undertaken by the assessee in the State.
The Bench, consisting of Justices Aparesh Kumar Singh and Deepak Roshan, has held that in a taxing statue there is no room for intendment and therefore Section 18(8)(ix) cannot be stretched to cover persons who are not manufacturers so as to deny them Input Tax Credit under the Act.
Case Title: Narsingh Ispat Limited Vs Union of India
Citation: 2022 LiveLaw (Jha) 30
The Jharkhand High Court bench of Justice Aparesh Kumar Singh and Justice Deepak Roshan has ruled that if an assessee disputes the liability of interest, either disputes its calculation or the leviability of interest, then the only option left for the Assessing Officer is to initiate a proceeding either under Section 74 or 74 of the CGST Act for adjudication of the liability of interest.
The petitioner/assessee challenged the Circular dated 10.02.2020 issued by the Central Board of Indirect Taxes and Customs (CBIC) which prescribes that interest payable on delayed payment of taxes can be recovered under the provisions of Section 79 read with Section 75 (12) of the JGST Act.
Karnataka High Court
Nominal Index
Bhavith Sheth V. State Of Karnataka 2022 Livelaw (Kar) 81
Vijaya v Shekharappa 2022 Livelaw (Kar) 82
Law Students Association v. State of Karnataka 2022 LiveLaw (Kar) 83
Archana M G v. Abhilasha 2022 LiveLaw (Kar) 84
Mrs. Prachi Sen v. Ministry Of Defence 2022 LiveLaw (Kar) 85
State Of Karnataka v. Somanna 2022 LiveLaw (Kar) 86
Praveen Surendiran V. State Of Karnataka 2022 Livelaw (Kar) 87
Dasari Chakradhar V The Registrar (Evaluation) 2022 LiveLaw (Kar) 88
Hrishikesh Sahoo v. State of Karnataka & Ors. 2022 LiveLaw (Kar) 89
Prabhuraj V. The State Of Karnataka 2022 Livelaw (Kar) 90
Varavara Rao @ Pendyala V. State Of Karnataka: 2022 Livelaw (Kar) 91
Judgements/Orders/Reports
Case Title: Bhavith Sheth V. State Of Karnataka Case No: WP 19287/2021
Citation: 2022 Livelaw (Kar) 81
The Karnataka High Court recently quashed the proceedings initiated against Bhavit Sheth and Harsh Jain, the Founders and Directors of Sporta Technologies Private Limited, which promotes the 'Dream 11' gaming app. The duo had approached the court seeking to quash the FIR registered against them by the police under the Karnataka Police (Amendment) Act, 2021, which bans online gaming and gambling in the state.
Case Title: Vijaya v Shekharappa Case No: Criminal Petition No.100261/2022
Citation: 2022 Livelaw (Kar) 82
The Karnataka High Court has said that it is not mandatory for Magistrate Courts to pass orders directing interim compensation under Section 143A of the Negotiable Instruments (NI) Act, if the accused does not plead guilty.
A single judge bench of Justice M Nagaprasanna said, "The Legislature has cautiously worded sub-section (1) of Section 143A not to make it mandatory in all cases where clauses (a) and (b) of sub-section (1) would empower the learned Magistrate before whom proceedings are pending consideration to award interim compensation. It is the discretion conferred, as the word used is "may"."
Case Title: Law Students Association v. State of Karnataka Case No: WP 2125/2022
Citation: 2022 LiveLaw (Kar) 83
The Karnataka High Court has rejected a petition filed by a non-profit organisation, Law Students Association, questioning the continuation of Prof. (Dr.) P. Ishwara Bhat as the Vice Chancellor of Karnataka State Law University, allegedly beyond the prescribed age limit of 65 years.
Case Title: Archana M G v. Abhilasha Case No: WRIT PETITION NO. 3399 OF 2022
Citation: 2022 LiveLaw (Kar) 84
The Karnataka High Court has rejected a petition filed by one Archana M G, a Grama Panchayat Member, challenging the order of the Civil court which unseated her on the ground of lack of social status as a Scheduled Tribe member. A single judge bench of Justice Krishna S Dixit said, "There is no dispute as to petitioner does not belong to Scheduled Tribe, by birth, although she claims to have acquired the said social status by marriage to a member of scheduled tribe. Ordinarily, caste is determined by birth and caste of a person follows that of his/her father."
Case Title: Mrs. Prachi Sen v. Ministry Of Defence Case No: WRIT PETITION NO.22979 OF 2021
Citation: 2022 LiveLaw (Kar) 85
The Karnataka High Court has reiterated that maternity benefits such as allowing an employee to work from home, under section 5 (5) of the Maternity Benefit (Amendment) Act 2017, could be given only in case where the nature of work assigned to the women is such that it is possible for her to work from home.
6: POCSO Act | Prosecution Can Cross Examine The Victim On Her Turning Hostile : Karnataka High Court
Case Title: State Of Karnataka v. Somanna Case No:. CRIMINAL PETITION No.8167/2020
Citation: 2022 LiveLaw (Kar) 86
The Karnataka High Court has said that under the Protection of Children from Sexual Offences Act, 2012, the prosecution can cross examine the victim on her turning hostile.
A single judge bench of Justice M. Nagaprasanna said, "In terms of sub-section (2) of Section 33 of the POCSO Act, the Special Public Prosecutor or as the case would be, the counsel appearing for the accused shall, while recording examination-in-chief, cross-examination or re-examination of the child communicates the questions to be put to the child to the Special Court which shall in turn put those questions to the child. Therefore, the victim is permitted to be cross-examined under the POCSO Act itself on her turning hostile which would also cover the situation under sub-section (2) of Section 33 of the POCSO Act."
Case Title: Praveen Surendiran V. State Of Karnataka Case No: Criminal Petition No.1892 Of 2022
Citation: 2022 Livelaw (Kar) 87
The Karnataka High Court has said that a court can impound any documents under section 104 of the Criminal Procedure Code (CrPC), but not the passport of an accused, as it can be done only under the Passports Act which is a special enactment. A single judge bench of Justice M Nagaprasanna said, "The power of impounding a document under Section 104 of the Cr.P.C. is available to a Court. This cannot stretch to an extent of impounding the passport. The passport coming within the purview of the Act and it being a special law would prevail over the provisions of Section 104 of the Cr.P.C. The Court can impound any document, but not the passport as it is dealt with under a special enactment. The power of impounding is available only to the Competent Authority under the Act, in terms of Section 10 of the Act."
Case Title: Dasari Chakradhar V The Registrar (Evaluation) Case No: W.P. NO.1120/2022
Citation: 2022 LiveLaw (Kar) 88
The Karnataka High Court has suggested to the Rajiv Gandhi University Of Health Sciences to take action against delinquent examiners in-charge of conducting Clinical Examinations for MBBS and MD courses, who are routinely found violating the guidelines issued by the University. A single judge bench of Justice P Krishna Bhat said, "It is necessary to observe that examiners appointed by the respondent- University seem to be routinely violating the guidelines issued by the University for holding the Clinicals examination. As a matter of fact, the learned counsel brought to my notice the order dated 22-12-2020 in Writ Appeal No.615 of 2020 (EDN-RES) (Rajiv Gandhi University Of Health Sciences V. Mr. Ramegowda Y. And Others), wherein also this Court had an occasion to notice such malpractice and direct re-conduct of practical examinations."
Case Title: Hrishikesh Sahoo v. State of Karnataka & Ors.
Citation: 2022 LiveLaw (Kar) 89
The Karnataka High Court on Wednesday rejected a petition filed by a husband seeking to drop charges of rape pending against him under Section 376 of the Indian Penal Code after his wife filed a complaint against him. Justice M Nagaprasanna emphasised that a man who is well acquainted with a woman and performs all the ingredients as is found in pre or post amendment to Section 375 can be proceeded against for offences punishable under Section 376, thereby establishing that a man sexually assaulting or raping a woman is amenable to punishment under Section 376 of IPC.
Case Title: Hrishikesh Sahoo And State Of Karnataka Case No: Writ Petition No.48367 Of 2018
Citation: 2022 Livelaw (Kar) 89
In a significant judgement, the Karnataka High Court has rejected a petition filed by a husband seeking to drop charges of rape under Section 376 of the Indian Penal Code, levelled against him by his wife. The Court did not accept the husband's argument that the charge cannot be framed against him due to the exception to marital rape from the offence of rape as per Exception 2 to Section 375 of the Indian Penal Code. The Court observed that the exemption cannot be absolute.
Case Title: Hrishikesh Sahoo V State Of Karnataka Case No: Writ Petition No.48367 Of 2018
Citation: 2022 Livelaw (Kar) 89
The Karnataka High Court has said that the trial against the husband accused of rape and charged under section 376 of the Indian Penal Code and also of sexually assaulting his daughter and charged under sections of the Protection of Children from Sexual Offences Act can be held before the Special POCSO Court. While refusing to quash the charges under Section 376 IPC against the husband ,a single judge bench of Justice M Nagaprasanna said , "The designated Court hearing cases relating to offences under the POCSO Act can try the offences under the IPC as well, in the facts of the case."
Case Title: Prabhuraj V. The State Of Karnataka Case No: Criminal Petition No.415 Of 2022
Citation: 2022 Livelaw (Kar) 90
The Karnataka High Court has quashed the criminal proceedings initiated against a man under the Immoral Traffic (Prevention) Act, 1956, on the ground that he was not aware that the premise he had given on rent, was being used for running a brothel. A single judge bench of Justice M Nagaprasanna allowed the petition filed by one Prabhuraj, stating, "In the light of Section 3(2)(b) of the Act (Immoral Traffic (Prevention) Act, 1956) and the police themselves acknowledging that petitioner was not aware as to what was happening in the premises, permitting further proceedings to continue against the petitioner would degenerate into harassment and become an abuse of the process of law."
Case Title: Varavara Rao @ Pendyala V. State Of Karnataka Case No: Criminal Petition No.1833 Of 2022
Citation: 2022 Livelaw (Kar) 91
The Karnataka government has informed the High Court that it would be moving an application before the Bombay High Court or the National Investigation Agency Court in Mumbai, seeking to relax the bail conditions imposed on Telugu poet P Varavara Rao's to allow him to appear before a court in Karnataka's Tumkuru district, and face a trial pending against him. A single judge bench of Justice M Nagaprasanna was informed by the prosecutor that, "A necessary application before the High Court of Bombay or National Investigation Agency Court, seeking relaxation of the bail conditions with regard to the petitioner not leaving the jurisdiction of National Investigation Agency Court at Bombay would be sought, only to face the trial in S.C.No.5019/2019."
Other reports
Case Title: Dr. Trinetra Haladar Gummaraju V. State Government Of Karnataka Case No: Wp 19706/2021
The Karnataka High Court has issued notice to the state government and other respondents on a petition filed by India's one of the first transgender doctor, seeking directions to provide separate hostel facilities for transgender students in higher educational institutions.
A division bench of Chief Justice Ritu Raj Awasthi and Justice S R Krishna Kumar issued notice and posted the matter for hearing on June 6.
Kerala High Court
Nominal Index: [Citations 2022 LiveLaw (Ker) 135 - 146 ]
Mathew Z Pulikunnel v Chief Justice of India, 2022 LiveLaw (Ker) 135
K.P. Sasikala v. State of Kerala & Ors., 2022 LiveLaw (Ker) 136
Aravind TR & Ors. v Kerala University of Health Sciences, 2022 LiveLaw (Ker) 137
Muhammed Nazar & Ors. v State of Kerala & Anr., 2022 LiveLaw (Ker) 138
P.T. Philipose & Anr. v. Sunil Jacob & Ors., 2022 LiveLaw (Ker) 139
Western Ghats Protection Council v Union of India & Ors., 2022 LiveLaw (Ker) 140
Saroja v. Postmaster & Ors., 2022 LiveLaw (Ker) 141
Udaya Sounds v. Principal Commissioner of Income Tax & Ors., 2022 LiveLaw (Ker) 142
Suo Motu v. State of Kerala, 2022 LiveLaw (Ker) 143
Sabeena E.K v. District Collector, 2022 LiveLaw (Ker) 144
Shajimon V. v. State of Kerala & Anr., 2022 LiveLaw (Ker) 145
Ukkash A .v. State of Kerala & Ors., 2022 LiveLaw (Ker) 146
Judgments This Week:
Case Title: Mathew Z Pulikunnel v Chief Justice of India
Citation: 2022 LiveLaw (Ker) 135
The Court recently upheld a Single bench decision that dismissed a couple of petitions seeking the constitution of an In-House Committee to probe into the alleged judicial misconduct against two judges. While dismissing a couple of appeals, the Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P held that the In-House Inquiry was not a 'law' for a litigant to ask for its enforcement.
2. Kerala High Court Quashes Proceedings Against K.P Sasikala In Sabarimala Violence Case
Case Title: K.P. Sasikala v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 136
The Court recently dropped all charges against Hindu Aikya Vedi leader K. P. Sasikala for purportedly triggering a dawn-to-dusk hartal in the State to protest the entry of women in Sabarimala temple in 2018. The said hartal had resulted in large-scale vandalism against which a PIL was moved before this Court to fix liability for the damages caused. Justice K Haripal allowed Sasikala's plea to quash all the proceedings against her, finding no legal evidence to inculpate her in the crime of abetting the unlawful assembly.
Case Title: Aravind TR & Ors. v Kerala University of Health Sciences
Citation: 2022 LiveLaw (Ker) 137
It was reiterated that courts should steer away from replacing their views in the place of expert opinion in academic matters. Justice Raja Vijayaraghavan V observed that it is not the domain of courts to trench in the academic pasture and pick holes in it and that it is better to give preference to the opinion of experts in the field in such matters.
4. Quashing Moral Policing Cases On Settlement Sends Wrong Message To Public : Kerala High Court
Case Title: Muhammed Nazar & Ors. v State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 138
The Court recently ruled that moral policing is an offence that involves mental depravity and that such cases cannot be quashed on the ground of settlement between the accused and complainant. Justice K. Haripal was adjudicating upon a case in which a violent mob had attacked an unarmed man for taking a woman belonging to a different community in his car.
Case Title: P.T. Philipose & Anr. v. Sunil Jacob & Ors.
Citation: 2022 LiveLaw (Ker) 139
The Court has ruled that every transaction by either of the spouse or by both of them with the in-laws or relatives cannot be termed as 'in circumstances arising out of a marital relationship under the Family Courts Act, 1984. A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas found that the impugned transaction in the plea was purely a business transaction between the son-in-law and father-in-law, and hence held that it cannot be termed as circumstances arising out of a marital relationship.
Case Title: Western Ghats Protection Council v Union of India & Ors.
Citation: 2022 LiveLaw (Ker) 140
The Court dismissed a Public Interest Litigation (PIL) filed by Western Ghats Protection Council seeking a CBI enquiry into the allegedly illegal financial dealings of Kenza Holdings under the guise of a Villa Project. A Division Bench of Chief Justice S. Manikumar and Justice Shaji P Chaly refused to entertain the plea noting that the petitioner society had not approached the relevant statutory authorities prescribed by law before seeking an investigation by the CBI.
Case Title: Saroja v. Postmaster & Ors.
Citation: 2022 LiveLaw (Ker) 141
The Court directed the post-office authorities to disburse the amount deposited by a domestic help under the time deposit scheme with full interest till the date of withdrawal within a month. Finding it to be a case of injustice, Justice P.V. Kunhikrishnan also imposed a cost of Rs. 5000 on the authorities as litigation cost while adding that the constitutional court cannot be a silent spectator in such situations.
Case Title: Udaya Sounds v. Principal Commissioner of Income Tax & Ors.
Citation: 2022 LiveLaw (Ker) 142
The Court ruled that a Special Leave Petition filed by an assessee under Article 136 of the Constitution of India cannot be regarded as a proceeding under the Income Tax Act. Justice Bechu Kurian Thomas held that while an assessment, appellate, and even revisional proceeding qualify as "proceedings under this Act', one instituted under the Constitution did not.
Case Title: Suo Motu v. State of Kerala
Citation: 2022 LiveLaw (Ker) 143
The Court issued guidelines to be followed by the concerned authorities while dealing with applications filed by accident victims or their dependents seeking compensation under the Employees Compensation Act, 1923. While disposing of a suo motu petition, a Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly accepted the report submitted by the Kerala State Legal Services Authority wherein it had suggested a few mechanisms to establish a proper system for effective consideration of such applications.
Case Title: Sabeena E.K v. District Collector & connected matters
Citation: 2022 LiveLaw (Ker) 144
The High Court held that owners of a portion of a paddy field who purchased it after the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008 are not entitled to reclaim it for the purpose of residential use. As such, a Full Bench of Chief Justice S. Manikumar, Justice Shaji P Chaly and Justice Sathish Ninan overturned the Division Bench decision in Yousuf Chalil v.State of Kerala [2019 (4) KLT 33].
Case Title: Shajimon V. v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 145
The Court denied anticipatory bail to a man who was accused of injuring a father for questioning him and the other accused for passing lewd comments about his minor daughter. While hearing the matter, Justice Gopinath P. orally remarked that such incidents of father and daughter being subjected to lewd comments while walking on a public road were unfortunate.
12. Sexual Harassment At Workplaces| Kerala HC Calls For Prompt Re-Constitution Of Local Complaints Committee Under POSH Act Upon Expiry Of Its Term
Case Title: Ukkash A v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 146
While dealing with a Public Interest Litigation (PIL), the Court directed the concerned authorities to take steps to reconstitute the Local Complaints Committee established under the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013, whenever its term expires. A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly disposed of a PIL noting that the provisions of the Act were to be strictly implemented.
Other Developments:
Case Title: Jaffer Khan v. State of Kerala & Ors
The Court asked the State to explain its delay in appointing a Chief Investigating Officer at the State Police Complaints Authority despite several extensions granted to it. A Division Bench of Chief Justice S Manikumar and Justice Shaji P Chaly disagreed with the submission of the State that it had taken prompt steps to implement the previous directions of the Court in this matter.
14. Diesel Price Hike For Bulk Purchasers: Kerala High Court Denies Interim Relief To KSRTC
Case Title: Kerala State Road Transport Corporation v. Union of India & Ors.
The Court refused to grant interim relief on the plea moved by Kerala State Road Transport Corporation (KSRTC) challenging the decision of State-owned Oil Marketing Companies to increase the price of diesel sold to the Corporation, which is allegedly much higher than the market price. Justice N. Nagaresh directed the Oil Marketing Companies to file a statement explaining the present pricing mechanism by the next posting date. The matter will be taken up again on April 4.
15. Kerala High Court Reserves Order On Plea Seeking CBI Probe In RSS Worker's Murder
Case Title: Arshika S. v. State of Kerala
The Court reserved its verdict on the preliminary objections raised in the plea seeking to hand over the investigation involving Rashtriya Swayamsevak Sangh (RSS) worker Sanjith's murder, who was hacked to death in November last year, to the Central Bureau of Investigation (CBI). Justice K. Haripal noted that it had already expressed its view that this is a matter to be investigated by CBI. The observations came in a plea filed by the RSS worker's wife seeking to hand over the case to CBI.
Case Title: Mannam Sugar Mills Cooperative Ltd v. Deputy Superintendant of Police
The High Court said that it was not intimidated by any political party after the State finally took a stance on the erection of flag poles and advertisements in public places after repeated court orders. Justice Devan Ramachandran orally observed that the city of Kochi underwent a substantial transformation after its intervention while clarifying that such orders were passed in the public interest and not to favour any political party.
Case Title: Parents Association of Foreign Medical Graduates v. Union of India & Ors.
The Court will consider a plea filed on behalf of 92 foreign medical students studying in different universities in China seeking a direction to the concerned authorities to provide them with practical training and internship facilities in India till the travel restrictions to China are lifted. Justice N. Nagaresh admitted the matter today while posting it on March 30 for further consideration.
Also Read: Kerala High Court Holds Reference To Condole Demise Of Former CJI Ramesh Chandra Lahoti
Case Title: Bharat Petroleum Corporation Ltd v. Cochin Refineries Employee's Association & Ors.
The Court restrained five trade unions in the Bharat Petroleum Corporation Limited (BPCL), Kochi, from participating in the nationwide strike called by a joint forum of trade unions which has been scheduled to take place on March 28 and 29. Apart from issuing an interim order, Justice Amit Rawal also issued notice to the respondents in the matter before admitting it.
Also Read: CBI Registers FIR To Probe Kerala Advocates Welfare Fund Scam
Madhya Pradesh High Court
Case Title: SMT. ALKA SHARMA AND ANR. v. THE STATE OF MADHYA PRADESH AND ORS
Citation: 2022 LiveLaw (MP) 78
The Madhya Pradesh High Court, Indore Bench recently refused to interfere in a matter related to custody of a child, holding that an adopted child cannot be handed over to his biological parents without enquiring whether the child has any knowledge of his parentage. The Court further noted that family courts are appropriate forums for such enquires since they are well equipped for the same. Justice Vivek Rusia was dealing with a writ petition in the nature of Habeas Corpus, wherein the Petitioners being the biological parents of a 12-years-old child, were seeking custody of their child from his adoptive parents.
Case Title: Poonam Pal D/o Laxman Singh Pal Vs. Madhya Pradesh Gramin Bank
Citation: 2022 LiveLaw (MP) 79
The Madhya Pradesh High Court, Indore Bench recently directed a Government Bank to reverse its decision of cancelling the candidature of a successful candidate for the post of Office Assistant (Multi purpose) due to typographical error in date of birth, and to further issue an appointment order in her favour. Justice Pranay Verma observed,
"It is not the case of respondent itself that the petitioner has derived any advantage by entering the wrong date of birth in the application. There was no intentional misrepresentation on part of the petitioner as she had submitted her school Certificate. There is a difference between a mere inadvertent error and misrepresentation or suppression. Cancellation of candidature of petitioner on the ground of typographical error in her application form is hence arbitrary and grossly disproportionate to the gravity of her lapse."
3. Madhya Pradesh High Court Directs Police Protection For Woman Who Married Outside Her Caste
Case Title: Gadiya Sejal Ben V The State Of Madhya Pradesh
Citation: 2022 LiveLaw (MP) 80
The High Court of Madhya Pradesh recently directed police protection to a woman who married outside her caste, as she was being threatened by her parents for the same. Justice Vishal Mishra was essentially dealing with a writ petition, wherein the Petitioner was seeking police protection for herself, her husband, and her in-laws. She also sought for transit bail for her husband so that he could appear before the court of JMFC, District Surendranagar in Gujarat.
Case Title: Hiralal Dhurve Vs. The State of Madhya Pradesh and others
Citation: 2022 LiveLaw (MP) 81
The Madhya Pradesh High Court recently refused to interfere with the charge framed against an Advocate under the POCSO Act for 'ill-advising' the accused and Prosecutrix in a rape case, suggesting them 'not to disclose true facts to the police'. Justice Sanjay Dwivedi was dealing with a criminal revision preferred by the Applicant aggrieved by order of the trial court, whereby he was charged for offence punishable under Section 19 (Reporting of offences) and 21 (Obligation of media, studio and photographic facilities to report cases) POCSO Act.
Case Title: SWAKSHTAGRAHI SANGH, JANPAD PANCHAYAT NIWAS v. UNION OF INDIA AND ORS
Citation: 2022 LiveLaw (MP) 82
The Madhya Pradesh High Court recently affirmed the decision of a Single Judge, dismissing a writ petition filed by an Association on the ground that the resolution passed by its members neither specified that the Association was being authorised to file the petition on their behalf nor did it clarify whether the members would abide by the decision rendered in the petition. The division bench of Chief Justice Ravi Malimath and Justice P.K. Kaurav was dealing with a writ appeal preferred by the Appellant/Association which was aggrieved by the decision of the single bench of the Court. While dismissing the writ petition, the Writ Court had cited the decision of a division bench of the Court in Prabhat v. Barkatulla University and held that the Petitioner/Association did not fulfil the criteria as laid down in the case.
Case Title: Shivkumar Kushwaha V The State Of Madhya Pradesh
Citation: 2022 LiveLaw (MP) 83
The Madhya Pradesh High Court recently directed enquiry against a Police Officer for suppressing evidence, by not furnishing information regarding the video clip of the alleged rape in the case diary, which was sent to the Office of the Advocate General. Justice Vivek Agarwal was dealing with a bail application moved by the Applicant accused for offences punishable under Sections 376 (rape), 506 (criminal intimidation) IPC, under Sections 3,4 POCSO Act, under Sections 3(1)(W)(ii), 3(2)(v) SC ST (Prevention of Atrocities) Act and under Sections 67, 67(A) The Information Technology Act.
Case Title: Subhash Chandra Versus Commissioner Of Income Tax, Indore And Other
Citation: 2022 LiveLaw (MP) 84
The Madya Pradesh High Court has ruled that income disclosed under Voluntary Disclosure Scheme cannot be included with the regular income declared under Income Tax Act as the tax paid under the Scheme cannot be refunded at any cost. The Bench, consisting of Justices Vivek Rusia and Amar Nath Kesharwani, has held that tax paid under Voluntary Disclosure Scheme and tax paid under Income Tax Act are different and there cannot be any adjustment between them. The Bench added that an assessee cannot be permitted to disclose part of his income under Voluntary Disclosure Scheme and other part of his income in an income tax return filed belatedly under the Act.
Madras High Court
NOMINAL INDEX
Dr. Esther, MBBS, DGO v. State of Tamil Nadu & Ors, 2022 LiveLaw (Mad) 108
L. Ponnammal v. Union of India, 2022 LiveLaw (Mad) 109
Maxworth Orchards (India) Limited & Anr. v, T. Mohan & Ors., 2022 LiveLaw (Mad) 110
P. Subburaj v. The Principal Secretary, Housing & Urban Development Department & Anr., 2022 LiveLaw (Mad) 111
Meenava Thanthai K.R.Selvaraj Kumar Meenavar Nala Sangam v. National Green Tribunal, Principal Bench & Anr., 2022 LiveLaw (Mad) 112
R.R Saravana Balagursamy v. The Superintendent of Police and Ors, 2022 LIveLaw (Mad) 113
The Divisional Manager, TATA AIG General Insurance Company Limited v. A.C. Jagadeesann & Anr, 2022 LiveLaw (Mad) 114
SC Raja Rajeshwari v. The State of Tamil Nadu and Ors, 2022 LiveLaw (Mad) 115
S. Ganeshan v. State represented by Inspector of Police, 2022 LiveLaw (Mad) 116
Krishnamoorthy v. State Represented by Inspector of Police & Connected Matters, 2022 LiveLaw (Mad) 117
Malliga v. P. Kumaran, 2022 LiveLaw (Mad) 118
Arulmighu Palapattarai Mariamman Tirukoil v. Pappayee & Ors., 2022 LiveLaw (Mad) 119
K. Umadevi v. Government of Tamil Nadu & Ors, 2022 LiveLaw (Mad) 120
State rep by The Deputy Superintendent of Police, CB CID v. A Sivakumar & Ors., 2022 LiveLaw (Mad) 121
Case Title: Dr. Esther, MBBS, DGO v. State of Tamil Nadu & Ors
Citation: 2022 LiveLaw (Mad) 108
Madras High Court has observed that the Governor alone can execrcise the power conferred for granting premature release of a prisoner under Article Article 161 of the Constitution, upon advice rendered by the State Cabinet.
A bench of Justices P.N. Prakash and A.A. Nakkiran refused to reconsider the plea made by Dr Esther, mother of the John David, convicted prisoner in the 1996 infamous murder of Pon Navarasu, for premature release. John David was the prime accused in the murder of Pon Navarasu, a first-year MBBS Student in Annamalai University and the son of Madras University's former Vice-Chancellor. The public outcry after the heinous murder paved way for the first state legislation criminalising ragging in educational institutions, i.e, Tamil Nadu Prohibition of Ragging Act, 1997.
"The State Level Committee which is composed of the Inspector General of Prisons and the Deputy Inspector General of Prisons (Headquarters) can only recommend a case to the State Government and cannot exercise the power under Article 161 of the Constitution of India. The Governor of the State would exercise the power under Article 161, ibid., on the recommendation of the Cabinet. Thus, the Cabinet has the authority to accept or reject the recommendation of the State Level Committee and accordingly, give their advice to the Governor."
The court also observed that it cannot interfere with the Government Order under Article 226 since it does have any powers under Article 142, like the Supreme Court.
Case Title: L. Ponnammal v. Union of India
Citation: 2022 LiveLaw (Mad) 109
The Madras High Court has dismissed a lea challenging the amendments brought in by the Finance Act 2021 and the subsequent amendments made in the LIC Act 1956 which provided for the disinvestment of the Life Insurance Corporation.
The bench of Chief Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy held that the challenge was made to the amendments by way of Article 110 of the constitution without challenging the certificate issued by the Speaker of the House. Further, the procedure for certifying the Finance Bill as a money bill have been duly complied with and therefore there is no constitutional illegality.
The court also highlighted that the word "only" used in the definition of Money Bill has to be read along with Article 110(1) (g) of the constitution which provides for any matter incidental to any of the matters specified in (a) to (f) of Article 110(1) and therefore should not be given a narrow meaning.
"The intrusion or inference to the implementation of a public interest policy by way of legislation should be eschewed, as it directly impacts the economic growth of the country and interference therein may have far reaching consequences, because the receipt of money into the Consolidated Fund of India is to be used for the development of the country." the court added.
Case Title: Maxworth Orchards (India) Limited & Anr. v. T. Mohan & Ors
Citation: 2022 LiveLaw (Mad) 110
in a matter pertaining to th ewinding up of Maxworth Orchards (India) Limited, the Madras High Court has ordered an absolute interim injunction on the deletion of certain properties, for which the employees of Maxworth Orchards (India) Limited are PoA holders, from the auction sale process.
The single-judge bench of Justice Senthilkumar Ramamoorthy also placed an interim stay of the confirmation of the sale in respect of the properties for a period of eight weeks. The court also noted there is insufficient evidence to apply Sections 536 and 537 of the Companies Act and set aside the registered sale deeds in summary proceedings.
The dispute arose when two persons alleged that they had purchased the properties from the original owners in bona fide transactions. The alleged purchasers had also placed a challenge against Maxworth's claim on the title to these properties on the basis of Power of Attorneys (PoAs).
"From the PoAs, it is evident that the agent was authorised to sell the lands and receive consideration. A few receipts in respect of payment of consideration are also on record. Pursuant thereto, two sale deeds dated 17.07.1996 are on record, which indicate that the lands were sold by Maxworth through the PoAs to its customers", the court inferred.
However, the court concluded that there aren't enough relevant documents to infer that the immovable properties whose alienation is challenged by Maxworth are actually the assets of Maxworth.
Case Title: P. Subburaj v. The Principal Secretary, Housing & Urban Development Department & Anr.
Citation: 2022 LiveLaw (Mad) 111
The Madras High Court has tabled a proposition to frame a scheme for allotment of houses in public quota on rental basis.
Justice Krishnan Ramasamy has directed the Tamil Nadu Housing Board and State Government to frame a scheme in consultation with the Tamil Nadu & Puducherry Bar Council for reserving a certain percentage of residential accommodations in public quota by giving preference to practicing young lawyers until a prescribed age. the court also recommended another alternative to consider the financial status of advocate and give them residential accommodation for a limited number of years on rental basis.
The court was considering a petition filed by a former President of District Consumer Redressal Forum who was still not able to own a house and was applying for allotment of residential accommodation under public quota which was initially rejected.
Relying on the judgement of T. Sornapandian & Others v. The Principal Secretary to Government, Housing & Urban Development (HB(2) HB5(2)) Department, Chennai & Others (2019), the court remarked that there are no hard and fast rule about to whom the residential accommodation should be allotted under 'public quota'.
The court also discussed the plight of young Advocates coming from irregular income group and also highlighted the vital role played by young practicing advocates in assisting court and rendering justice.
Case Title: Meenava Thanthai K.R.Selvaraj Kumar Meenavar Nala Sangam v. National Green Tribunal, Principal Bench & Anr.
Citation: 2022 LiveLaw (Mad) 112
The Madras High court bench of Chief Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy recently dismissed for non prosecution, a plea challenging the NGT Office Order which mandated that Pan India matters should be heard by the Principal Bench at New Delhi.
The plea was filed to quash the Office Order issued by Registrar General of the Principal Bench of the National Green Tribunal (NGT) directing that suo motu matters having pan-India or inter-state implications will be henceforth listed before the Principal Bench of at least three members.
Case Title: R.R Saravana Balagursamy v. The Superintendent of Police and Ors
Citation: 2022 LiveLaw (Mad) 113
The Madras High Court has observed that instead of repeated orders of the Supreme Courts and the High Courts, the Police Department is not equipped with CCTV Cameras to store the footage for at least a period of one year. This defeats the purpose for which the cameras are installed. The court also suggested storage points for keeping the CCTV footage at least for a minimum period of one year.
Justice S.M Subramaniam also took note of the fact that a number of writ petitions are being filed seeking initiation of action against public servants including police officials and a solution should be found.
Case Title: The Divisional Manager, TATA AIG General Insurance Company Limited v. A.C. Jagadeesann & Anr
Citation: 2022 LiveLaw (Mad) 114
The Madras High Court has highlighted that the deceased/ injured in a motor accident claim must be a third party to maintain a claim under Section 163A of the Motor Vehicles Act, 1988.
Justice P.T. Asha noted that an application under Section 163A of the Act against the Insurance Company of the vehicle driven by the injured/ deceased himself/herself/themselves is liable to be disimissed.
The court also held that usually the claimant does not have to establish the negligence of the owner of the vehicle which resulted in death or permanent disablement However, when the claimant himself was driving the borrowed vehicle that was insured. In such an instance, he would step into the shoes of the owner of a vehicle.
Case Title: SC Raja Rajeshwari v. The State of Tamil Nadu and Ors.
Citation: 2022 LiveLaw (Mad) 115
Justice Krishnan Ramaswamy of Madras High Court recently allowed petitions filed by two students of Madha Dental College seeking similar reliefs against the college - to direct the college to issue course completion certificate and to permit the students to complete their internship/receive certificate without fail.
The court, satisfied that the college had manipulated the attendance registers of the students to get orders in their favour, condemned the act of college and directed it to pay a penalty of Rs. 3 crore to the university. The university was directed to utilize this fund for the purpose of providing scholarship to the poor students those who are undergoing BDS/MDS course under any existing Scheme. In the absence of such schemes, the university was directed to frame new schemes.
The court had also directed the college to pay a sum of Rs. 24 lakhs each to the students for depriving their opportunity to become dentists and to refund the excess fee collected from them with interest at 18% p.a.
Case Title: S. Ganeshan v. State Represented by Inspector of Police
Citation: 2022 LiveLaw (Mad) 116
Madras High Court has held that the bar under Section 33(5) of the POCSO Act against recalling a child (minor victim) is not applicable after such victim attains majority.
Justice A.D Jagdish Chandra, while allowing the petitioner-accused's plea held that the victim is now 21 years old and she will not fall within the definition of "child" so as to invoke Section 33(5) of the POCSO Act, 2012. Section 33(5) of the Act only mandates that the child witness cannot be called repeatedly to testify in the Court.
The court also relied on decision of Apex Court in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd. (2017) and noted that it is mandatory for a court under Section 311 CrpC to recall witnesses for further cross-examination if their evidence appears to be essential for just decision of the case. the court also highlighted that the child's right under Section 33(5) of the POCSO Act has to be balanced with the right of the accused.
Case Title: Krishnamoorthy v. State Represented by Inspector of Police & Connected Matters
Citation: 2022 LiveLaw (Mad) 117
Justice A.D Jagdish Chandira recently lamented on the current pace of environmental deterioration and opined that it is society's collective responsibility to leave the planet in a better shape for future generations.
The court was dealing with a batch of pleas made for return of seized vehicles involved in illegal sand mining cases. The court noted that these vehicles are used for similar offences once released. The court also noted that the perennial rivers that were carrying clean water have now been converted into drainage channels for carrying effluents. The court issued direction for the conclusion of confiscation proceedings already initiated within 6 months.
Case Title: Malliga v. P. Kumaran
Citation: 2022 LiveLaw (Mad) 118
Madras High Court has held that a Will cannot be admitted in evidence unless it complies with the conditions laid down in Section 68 of the Evidence Act, even if the execution of the document is expressly admitted or not specifically denied by the opposite party.
Justice N. Anand Venkatesh observed that the mandate of calling at least one attesting witness for the purpose of proving execution cannot be diluted. the court further added that Section 68 only excepts examining an attesting witness for the proof of execution of any document that requires to be attested under law, not being a will, if its execution is not specifically denied by the person who appears to have executed the document.
12. Even If 'GOD' Encroaches Upon Public Space, Will Order Its Removal: Madras High Court
Case Title: Arulmighu Palapattarai Mariamman Tirukoil v. Pappayee & Ors.
Citation: 2022 LiveLaw (Mad) 119
The Madras High Court has observed that "even if GOD encroaches upon public space, Courts will direct removal of such encroachments". The court stated that it is not concerned by 'who or in what name' the encroachment takes place and that public interest and rule of law must be safeguarded and upheld.
Justice N. Anand Venkatesh was hearing an appeal filed by temple against the order of lower court restraining it from putting up construction in Mariamman Koil Street.
The court was also critical of the stand taken by respondent Municipality who refused to interfere with the encroachments by stating that the Government was in control of the street since it was a puramboke land. The bench reiterated that such hyper technical pleas wouldn't whitewash the public wrong committed by the temple.
Case Title: K. Umadevi v. Government of Tamil Nadu & Ors.
Citation: 2022 LiveLaw (Mad) 120
Justice V Parthiban of the Madras High Court has held that there is no cap on the number of deliveries for grant of maternity benefits under the Maternity Benefits Act. The only differentiation is on the period of maternity benefit available. For a woman employee having less that two surviving children, the maximum period of benefit is 26 wees while for a woman having more than two surviving children, the benefit is restricted to 12 weeks.
Relying on Madras High Court judgment in N.Mohammed Mohideen & Anr vs. Deputy Commissioner of Labour (Inspection) Chennai, (2008), the court observed that as long as Article 42 of the Constitution read with the provisions of the M.B. Act, 1961, is available, every female worker covered by the Act is entitled to claim maternity benefit without any ceiling on the number of deliveries made by them. The court also mentioned a High Court judgment in Ruksana v. State of Haryana (2011) and noted that Maternity Benefit Act would have an overriding effect over any service rules.
Case Title: State rep by The Deputy Superintendent of Police, CB CID v. A Sivakumar & Ors
Citation: 2022 LiveLaw (Mad) 121
The Madras High Court has directed the Magistrate to issue Non-Bailable Warrant against the absconding accused police officials who were evading arrest in an extortion case.
Justice A.D Jagdish Chandra, while passing the order also added that:
"As stated above, the accused in the case are evading arrest and the only course left open to the Investigating Officer to ensure their presence, would be to seek the Magistrate to invoke his power under Section 73 of Cr.P.C. and only thereafter can proceed with the other procedures of proclamation and attachment. In such an eventuality, there is no bar for the Magistrate to legitimately exercise his power under Section 73 of Cr.P.C for the person to be apprehended during investigation since the respondents are accused of Non-Bailable offence and are evading arrest"
Other Developments
15. Centre Appoints Two New Additional Judges To Madras High Court
The Centre has appointed Advocates Nidumolu Mala and S. Sounthar as Additional Judges of the Madras High Court, for a period of two years.
The recommendation to elevate them was made by the Supreme Court Collegium in its meeting held on 16th February, 2022.
Chief Justice Munishwar Nath Bhandari shall administer the oath of office to two new judges on Monday (28.03.2022) at a function which shall be held in the Meeting Hall, Additional Library Building of the High Court.
The Centre has appointed former Madras High Court Justice Pushpa Sathyanarayana as Judicial Member of the National Green Tribunal. The appointment is for a period of four years.
Justice Sathyanarayana had retired from service last month after serving as judge in Madras High Court for nine years from 2013.
Case Title: Tamil Nadu Pondy Plastic Association, Rep. by its President, Mr. G. Sankaran v. The Government of Tamil Nadu & Anr.
The Greater Chennai Corporation (GCC) has told Madras High Court shops that repeatedly sell goods in single-use plastic carry bags will be liable for Trade licenses cancellation, besides closure and sealing.
The Madras High Court bench of Justices S. Vaidyanathan and P.T Asha were hearing a plea filed by TN & Puducherry Plastic Manufacturers Association against the 2018 Govt order banning a list of plastic items. The June 2018 order was issued by the Department of Environment and Forests by exercising the power conferred under Section 5 of the Environment (Protection) Act, 1986. The order banned manufacturing, storing, supplying, selling and distributing of 'use and throw away plastics'.
Case Title: Preethika C. v. State of Tamil Nadu & Other Connected Cases
In a plea challenging the constitutionality of the State Act providing horizontal reservation of 7.5 per cent seats in medical colleges for students passing out of government schools, the State Higher Educational Department represented by Senior Counsel P. Wilson, in their written submissions have stated that the allocation of 7.5 per cent seats for students from Government Schools cannot even be called 'reservation', but only to be construed as creating a source of admission for which the state is empowered under Entry 25, List III of the Constitution's Seventh Schedule.
The counsel also contended that such categorisation of seperate sources of entry/admission is based on intelligible differential.
Previously, the bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakaravarthy had asked the department why it was not uplifting the standard of schools so that the students didn't need tuition.
19. Pardoning Power- Article 161 Does Not Give Any Power To Council Of Ministers: Madras High Court
While considering the petition filed by Rajiv Gandhi Assassination Case Convict S Nalini for her prerelease without waiting the approval of the Governor, the Madras High Court Bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy observed that Article 161 does not provide for binding the decision of the Council of Ministers and that power is given to the Governor under this section.
The court had previously disinclined from hearing the bail application citing that there was no legal provision for a convict to seek bail. The court had asked the petitioner to first establish that a bail application was maintainable after which the court shall hear the bail application.
A congress worker has recently moved the High Court seeking to implead him as the respondent in the petition.
The bench has directed the registry to number the petitions filed by Nalini and list the same for hearing.
20. Madras High Court Grants Regular Bail To Former ABVP Chief Dr. Subbiah Shanmugam In Harassment Case
Case Title: Dr. Subbiah Shanmugham v. The State represented by the Inspector of Police
Justice G. Jayachandran of the Madras High Court recently granted regular bail to former ABVP Chied Dr. Subbiah Shanmugham, who was arrested in relation to an incident of urinating before a woman neighbour's house in 2020.
The court was unsatisfied with the statements made by the Additional Advocate General that there were no malafide intention in the arrest. Previously while granting interim bail, the court had stated that the arrest was patently erroneous, leading to violation of his fundamental right.
Case Title: S. Karthieyan & Anr v. District Collector & Ors.
The first bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy stated that officers can't be allowed to promote encroachers by allotting alternative lands elsewhere.
The Bench noted that allotment of such alternative lands would only promote the tendency to encroach Government/ Poramboke land and water bodies. The court also reiterated about the 'total failure' of officers in the removal of encroachments in water bodies and catchment areas.
The court was hearing a writ petition filed for removal of encroachments from a water tank in the centre of Karadivavi Village in Palladam Taluk, Tiruppur District. In the status report filed by the state, it was mentioned that many encroachers have been removed and the rest of them can't be removed until alternative lands are allotted to them.
22. Seal The Shops Selling Banned Plastic Items : Madras High Court Directs Nilgiris District Collector
Case Title: Solaimalai @ Sivasolaimalai v. Chairman and Ors
The Madras High Court on Friday directed the District Collector, Nilgiris to conduct surprise inspection and whenever they find any shop selling banned plastic items, the authorities shall close and seal the shop immediately. The court further opined that imposing fine will not deter the shopkeepers from selling plastic bottles.
The bench of Justice V, Bharathidasan and Justice N. Sathish Kumar were hearing a batch of pleas concerning the protection of Western Ghats area.
The court also directed the collector to ensure proper functioning of water ATMs and to install new ATMs.
In a Twenty20 (T20) fraternity cricket match between the judges of Madras High Court and Kerala High Court, the former has emerged victorious, winning the match by 7 wickets.
The entire program arrangements were made by the Non-Playing Captain Justice V. Bharathidasan and his team comprising of Justice Krishnakumar, Justice A D Jagadish Chandira, Justice M. Dhandapani, Justice M. Nirmal Kumar and Justice PT Asha. Justice V. Bhavani Subbaroyan was the Commentator at the play ground. Play ground facility was arranged by IIT Madras Registrar Dr. Jane Prasad
Orissa High Court
Case Title: Siba Bisoi & Ors. v. State of Odisha
Citation: 2022 LiveLaw (Ori) 30
The Orissa High Court has recently held that bar under Section 362 is not absolute and the same cannot be strictly applied to 'recall of orders' which are obtained through playing fraud upon the Court. While recalling an order which was obtained through misrepresentation of dates, a Single Judge Bench of Justice Sashikanta Mishra held,
"The position that emerges from a reference to the case laws noted above is that the bar under Section 362 of Cr.P.C. is not absolute and in any case, does not apply in case of recall of the order. There is no dispute that the inherent power of the High Court under Section 482 of Cr.P.C. can be exercised if any of the three conditions exist, namely, to give effect to any order under the Code, to prevent abuse of the process of Court or to secure the ends of justice."
Case Title: The Divisional Manager, National Insurance Co. Ltd. v. Sunil Majhi & Anr.
Citation: 2022 LiveLaw (Ori) 31
The Orissa High Court has held that merely because a person driving a vehicle is involved in multiple road accidents, at different point in time, is no reason for the Insurance company to deny his claim. Single Judge Bench of Justice B.P. Routray observed,
"no logic is there in the contention of the Appellant that because the accused is involved in more than one accident at different points of time, the claim of compensation contemplated under Sec.166 of the M.V. Act would be nullified on that ground."
Case Title: The Divisional Manager, New India Assurance Co. Ltd., Bhubaneswar v. Sauri Das & Ors.
Citation: 2022 LiveLaw (Ori) 32
A Division Bench of the Orissa High Court, comprising of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik, has held that the 'multipliers' provided under the second schedule to the Motor Vehicles Act, 1988 ("the Act") can be applied even in the cases where at the time of adjudication the schedule was in force, though it was not operational at the time of accident. The Bench observed,
"The MV Act being a statute intended to benefit accident victims, the Schedule thereto ought to be applied in pending cases of accident victims even if the accident occurred at a time when the Schedule was not in force."
4. S. 194-I Income Tax Act | TDS Can't Be Deducted In Absence Of Payment Of Rent: Orissa High Court
Case Title: Commissioner of Income Tax, Bhubaneswar v. Western Electricity Supply Company of Odisha Limited (WESCO) & Other Connected Matters
Citation: 2022 LiveLaw (Ori) 33
The Orissa High Court has held that in absence of payment of rent, the obligation to deduct tax at source ('TDS') under Section 194-I of the Income Tax Act, 1961 ('the Act') does not arise at all. Notably, the said provision deals with 'TDS on rent'.
While dismissing an Income Tax Appeal, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik observed
"In absence of there being any payment of rent or even deemed rent by the Respondents to OPTCL there was no obligation under Section 194-I of the IT Act to deduct TDS from the wheeling charges paid to OPTCL."
Case Title: Gyanadutta Chouhan v. The Additional Chief Secretary to Government, Health & Family Welfare Department, Government of Odisha
Citation: 2022 LiveLaw (Ori) 34
In a significant decision, the Orissa High Court has held liable a State-run medical facility, i.e. Veer Surendra Sai Institute of Medical Sciences and Research (VIMSAR), for medical negligence which caused death of two COVID-19 patients.
While issuing directions for payment of ex-gratia and compensation to the victims and their kins, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanik observed,
"The Court in the present instance is dealing with violation of the right to health of the victims guaranteed and protected under Article 21 of the Constitution of India. After the judgment of the Supreme Court in Pt. Parmanand Katara v. Union of India, 1989 AIR 2039 and Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 SCC 37, no person can be denied adequate standard of medical care in Government health institutions. The excuse of lack of resources was never accepted by the Supreme Court of India."
6. Odisha Judicial Service: High Court Turns Down Plea To Relax 'Upper Age Limit'
Case Title: Pratap Kumar Bhuyan v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 35
The Orissa High Court has recently dismissed a writ petition which sought for relaxation in the 'upper age limit' of the Odisha Judicial Service (OJS). A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held,
"In the present case, it has not been found expedient for such relaxation to be extended. It may also be noted that under Rule 41 of the OSJS and OJS Rules while certain provisions of the Odisha Civil Services (Classification, Control & Appeal) Rules, 1962 and the provisions of the Odisha Service Code have been made applicable, the Odisha Civil Service (Fixation of Upper Age Limit) Rules, 2022 and the amendments thereto have not been made applicable to the OJS and OSJS."
Case Title: Ramesh Chandra Pani v. State of Orissa and others
Citation: 2022 LiveLaw (Ori) 36
The Orissa High Court has held that it being a Court of equity, must not let rigid technical rules of procedure to trump justice and to pave way for manifest miscarriage of justice. While denying relief to a person, who had been evading his liability for almost two decades under the garb of procedures, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,
"The Court exercising jurisdiction under Article 226 of the Constitution is also a Court of equity. It will have to be mindful of the interests of justice and ensure that in rigidly applying technical rules of procedure miscarriage of justice does not result."
Punjab & Haryana High Court
Case Title: Puran Chand Sharma v. The State of Haryana
Citation: 2022 LiveLaw (PH) 45
A single bench of the Punjab and Haryana High Court has recommended departmental action against a Chief Judicial Magistrate for violating a High Court direction in a case.
Observing that the Magistrate's action not only showed lack of understanding of fundamental principles of law but also reflected judicial indiscipline, Justice Manoj Bajaj referred the matter to the Chief Justice for initiating departmental action.
Case Title: Commissioner Of Central Excise, Panchkula Versus M/S Riba Textiles Limited
Citation: 2022 LiveLaw (PH) 46
The Punjab and Haryana High Court has held that the revenue department cannot take the plea of transfer of jurisdiction due to GST regime against assessee's claim for refund of central excise duty and interest.
The Bench, consisting of Justices Ajay Tewari and Pankaj Jain, ruled that the Income Tax Act, 1961 and Central Excise Act, 1944 are pari materia and an assessee was entitled to interest on delayed refund of central excise duty in light of the Supreme Court ruling in Sandvik Asia Ltd versus CIT, Pune (2006).
Rajasthan High Court
Nominal Index
Ramratan Bishnoi v. The State of Rajasthan 2022 LiveLaw (Raj) 104
Smt Meena v. State, Through PP 2022 LiveLaw (Raj) 105
Salman Khan v. State of Rajasthan 2022 LiveLaw (Raj) 106
Rahul Katara v. State of Rajasthan 2022 LiveLaw (Raj) 107
Rajasthan State Road Transport Corporation Through Its Managing Director & Ors. v. Udai Singh Kumawat 2022 LiveLaw (Raj) 108
Nand Kishore & Anr. v. Saleem Khan 2022 LiveLaw (Raj) 109
Ratan Devi & Anr. v. State of Rajasthan 2022 LiveLaw (Raj) 110
T.C. Gupta v. Union of India 2022 LiveLaw (Raj) 111
Judgments/ Orders of the Week
Case Title: Ramratan Bishnoi v. The State of Rajasthan
Citation: 2022 LiveLaw (Raj) 104
The division bench of Rajasthan High Court directed UIDAI officials to expedite the process of providing the Aadhar details of the suspect and a minor child to the Investigating Officer.
The court further directed that the aforesaid details shall be shared within seven days.
Justice Vinod Kumar Bharwani and Justice Sandeep Mehta, observed,
"We, therefore, direct that the UIDAI officials shall expedite the process of providing the Aadhar details of the suspect and the corpus to the Investigating Officer and same shall be shared latest within seven days from today. "
Case Title: Smt Meena v. State, Through PP
Citation: 2022 LiveLaw (Raj) 105
The Rajasthan High Court observed that Section 459 of Indian Penal Code would apply if a trespasser causes grievous hurt or attempts to cause death or grievous hurt in the course of the trespass i.e. whilst committing lurking house-trespass or house-breaking.
Dr. Justice Pushpendra Singh Bhati, while allowing the petition, modified the trial court's order (for the offence U/s 458, 323, 324, 325, 307/34) to the extent of framing of charges under Section 459 IPC in place of Section 458 IPC and thereby, observed,
"In this case, the accused-respondents illegal and forcibly entered the house of the complainant/petitioner, armed with lathis, sariyas and swords during night hours at about 10:15 p.m. on 31.09.2016, and inflicted grievous injuries upon the son and husband of the complainant/petitioner, while remaining in her house premises. The same constitutes house breaking, and the grievous hurt is not disputed, and thus, the applicability of Section 459 IPC is made out."
3. Trial Of Salman Khan's Deer Hunting Case Transferred To Rajasthan High Court
Case Title: Salman Khan v. State of Rajasthan
Citation: 2022 LiveLaw (Raj) 106
The Rajasthan High Court has allowed Salman Khan's transfer petition in the deer hunting case. The petitioner prayed for transfer of the criminal appeals and Arms Act appeal from the Sessions Court, primarily on the ground that they arose from the same judgment and set of facts and evidence, involving several common witnesses and overlapping allegations as in the Leave to appeal filed by the state in the High Court.
The transfer petition was filed under Sections 402 and 407 of The Criminal Procedure Code, and Rule 113 of The Rajasthan High Court Rules.
Dr. Justice Pushpendra Singh Bhati, observed,
"Resultantly, the present petition is allowed, and accordingly, it is directed that criminal appeal No.18/2018 filed by complainant Punamchand relating to alleged offence under Wild Life (Protection) Act, 1972 and Criminal Appeal No.22/2017 relating to alleged offence under Arms Act, 1956, both pending before the District and Sessions Judge, Jodhpur District shall be transferred to this Hon'ble High Court, to be heard alongwith the Criminal Leave to Appeal No.311/2018 (State of Raj. Vs. Saif Ali Khan & Ors.)."
Case Title: Rahul Katara v. State of Rajasthan
Citation: 2022 LiveLaw (Raj) 107
The Rajasthan High Court has granted bail to judicial officer Jitendra Singh Guliya and two judicial clerks. All the three accused are in custody for the offences punishable under section 377/34 of I.P.C. and 5/6 of P.O.C.S.O. Act.
Last year, the Rajasthan High Court suspended Jitendra Singh Guliya, with immediate effect pending preliminary enquiry and contemplated departmental enquiry. An order to this effect was issued by the High Court's Registrar General, under the direction of the Chief Justice of the High Court. He was posted as Special Judge, Special Court, Prevention of Corruption Act, Bharatpur.
Justice Farjand Ali, while granting bail to the accused persons, observed,
"All the accused persons are government servants out of which one is a Judicial officer and if the pre-conviction detention does not lead to conviction then compensation for such detention whereby tarnishing the reputation of an individual holding a Judicial post will never be compensated. Thus, the detention is not supposed to be punitive or preventive; and for the reasons as noted above this court is of the considered view that since the accused is languishing in judicial custody, his further incarceration would not serve any fruitful purpose."
Case Title: Rajasthan State Road Transport Corporation Through Its Managing Director & Ors. v. Udai Singh Kumawat
Citation: 2022 LiveLaw (Raj) 108
The Rajasthan High Court has observed that the services of a regular appointed employee, though on probation, cannot be terminated without enquiry and without providing an opportunity of hearing and explaining the charges against him.
The court pursued that the fact finding of two courts below are based on appreciation of evidence and no illegality or perversity has been pointed out in such fact findings, so as to give rise to any question of law much less substantial question of law. In this regard, the court noted that the nature of termination in the present matter was stigmatic.
Previously, the court had framed the substantial question of law as "Whether, the Civil Court has jurisdiction to entertain the suit filed by the respondent/ plaintiff?".
Justice Sudesh Bansal, observed,
"As far as nature of termination as simpliciter or stigmatic is concerned, both Courts have concurrently held on the strength of oral or documentary evidence that the termination was stigmatic. The services of regular appointed employee, though on probation, cannot be terminated without enquiry and without providing an opportunity of hearing and explain the charges against him. The fact finding of two courts below are based on appreciation of evidence and no illegality or perversity has been pointed out in such fact findings, so as to give rise any question of law much less substantial question of law."
Case Title: Nand Kishore & Anr. v. Saleem Khan
Citation: 2022 LiveLaw (Raj) 109
The Rajasthan High Court, while allowing the application under Order 41 Rule 27 CPC observed that no additional evidence is required to be recorded to prove the additional documents, when the same are certified copies of the judgments passed by Judicial Courts.
Justice Sudesh Bansal, opined,
"In the opinion of this court, copies of judgment dated 04.09.2006 and order dated 23.07.2012, have material bearing on issues involved in the present appeal. No additional evidence is required to be recorded to prove the additional documents, as the same are certified copies of the judgments passed by Judicial Courts. Thus, in the interest of justice, the application under Order 41 Rule 27 CPC is allowed."
Case Title: Ratan Devi & Anr. v. State of Rajasthan
Citation: 2022 LiveLaw (Raj) 110
The Rajasthan High Court observed that the decision of state government discontinuing water facilities through siphons is in gross violation of the principles of natural justice as no opportunity of hearing has been afforded to the petitioners, who used the supply for irrigating their fields since last 35 years.
The court opined that the impugned orders are having civil and evil consequences, and are therefore not sustainable in the eye of the law.
Justice Vinit Kumar Mathur, while allowing the writ petitions and setting aside the impugned orders, observed,
"In the considered opinion of this court, the action taken by the respondents authorities is in gross violation of the principles of natural justice as no opportunity of hearing has been afforded before passing the orders which are having civil and evil consequences, and, therefore, the orders are not sustainable in the eye of the law."
Case Title: T.C. Gupta v. Union of India
Citation: 2022 LiveLaw (Raj) 111
The division bench of Rajasthan High Court, Jodhpur upheld the Central Administrative Tribunal, Jodhpur order imposing 1 Lac cost on petitioner-advocate.
The court observed that the petitioner-advocate, who in more than one matters, has indulged in filing Original Applications in the Tribunal as well as writ petitions in the High Court and has personally signed the pleadings etc. without having been specifically authorised in this regard by the litigants.
It was opined by the court that the finding of the Tribunal that the petitioner, who has been enrolled as an Advocate post retirement from the Income Tax Department, has acted as de facto party in Judicial proceedings cannot be faulted.
Case Title: Sohan Singh Rao Versus Union Of India
Citation: 2022 LiveLaw (Raj) 112
The Rajasthan High Court bench of Justice Narendra Singh Dhaddha has refused to grant bail to the director of a company who was allegedly involved in goods and service tax (GST) evasion worth Rs. 869 crores. Counsel for Sohan Singh Rao/petitioner submitted that the petitioner was falsely implicated in the case of GST evasion. The petitioner is a director of M/s Miraj Products Private Limited. He has been behind bars since January 13, 2022. In the first complaint, there was not a single word regarding the alleged offence against the petitioner. In the supplementary complaint, only one allegation of the offence is based on the statement of the petitioner. The petitioner has retracted the statement.
Other Important Updates
1. Rajasthan Bar Protests Against State's Failure To Trace Advocate's Missing Daughters
The Rajasthan High Court Bar Association, Jaipur along with District Bar Association, Jaipur protested against state administration's failure to find two minor daughters of an Advocate, who have been missing for over 45 days.
Two minor daughters of Jaipur-based Advocate Avdesh Kumar Purohit have been missing from Lai C. M. Senior Secondary School, Kartarpura, Jaipur since Feb 3, 2022. An FIR was also lodged on the same day. The last location of the minor girls was reported in Lucknow.
The Rajasthan High Court Bar Association has decided to offer a cash reward of Rs. 51,000 to the person who gives information about the girls.
Case Title: Suo Moto v. Union of India
The Rajasthan High Court, Jaipur has recently taken suo moto cognizance considering the difficulty faced by an individual in getting only his mother's name as legal guardian on PAN and other documents.
The suo moto cognizance was taken by Justice Sameer Jain based on a report published in The Hindu on 08.03.2022 titled, "Want Mother's Name on Documents? Get ready for the runaround". The case was registered on Court's file on the International Women's Day i.e. 08.03.2022 and was thereby placed before the division bench of the High Court.
On 10.03.2022, the division bench granted three weeks' time to both Union and State government to file an affidavit indicating as to where and in what departments the names of mothers are mentioned and used as a practice.
Advocate Divyesh Maheshwari was appointed as amicus curiae by the court.
Case Title: Abhay Singla v. Union of India
The Rajasthan High Court, Jaipur has recently issued notice in a public interest litigation challenging the constitutionality of Section 194N of the Income Tax Act, 1961.
The provision was inserted by the Finance Act, 2019 and became effective from September 1, 2019. The provision mandates the deduction of tax at source at the rate of 2% on cash withdrawals from, inter alia, a banking company exceeding Rs. 1 crore in a financial year.
The Bench of Acting Chief Justice Manindra Mohan Shrivastava and Justice Sameer Jain, observed,
"Issue notice to the respondents, returnable within four weeks. PF be filed within one week."
Case Title: Avadesh Kumar Purohit v. The State Of Rajasthan & Ors.
The Rajasthan High Court was informed by the state that the case of the advocate's missing daughters has been transferred to the Special Investigation Team (SIT).
The court was hearing the habeas corpus petition filed by Jaipur-based Advocate Avdesh Kumar Purohit, whose two minor daughters have been missing from Lai C. M. Senior Secondary School, Kartarpura, Jaipur since Feb 3, 2022. An FIR was also lodged on the same day. The last location of the minor girls was reported in Lucknow.
The court pursued that positive steps are being taken to trace out the detenues and it directed the respondents to intensify the action in this regard.
Justice Prakash Gupta and Justice Birendra Kumar, observed,
"From perusal of the same, it appears that positive steps have been taken to trace out the detenues, who are yet to be traced. The respondents are directed to intensify the action to trace out the detenues."
Telangana High Court
Case title - Ch.Anjaneyulu, Medak Sangareddy v. The State Of Telangana
Citation: 2022 LiveLaw (Tel) 22
The Telangana High Court recently observed that a mere breach of contract cannot give rise to criminal prosecution for cheating or criminal breach of trust.
The Bench of Justice G. Radha Rani further clarified that every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation.
2. Plea Before Telangana High Court Against 'The Kashmir Files' Film Dismissed As Withdrawn
Case title - Mohammed Sami Ullah Qureshi v. The Government Of Telangana
Citation: 2022 LiveLaw (Tel) 23
A plea moved before the Telangana High Court to challenge the release of the movie The Kashmir Files has been dismissed as withdrawn. The film directed by Vivek Agnihotri features well-known actors like Anupam Kher and Mithun Chakraborty released on March 11.
The plea moved before the Court challenged the making, releasing, and telecasting of certain 'objectionable' scenes in the film which, as per the plea, shows mass murders of Kashmiri Pandits by Muslims and exodus of Kashmiri Pandits during the Kashmir Insurgency.
Tripura High Court
Case title - Sri Mrigankar Sekhar Dey v. Union of India and another
Case Citation- 2022 LiveLaw (Tri) 6
The Tripura High Court last week dismissed a Public Interest Litigation (PIL) plea which challenged the constitutional validity of Section 11 of the Right to Information Act, 2005 on the ground that the same is ultra-vires of Article 14 and 21 of the Constitution of India.
Essentially, the petitioner was concerned with the 'deplorable' condition of the native and smuggled wildlife species, who find their way either in a government or privately owned zoological park/rescue center/rehabilitation center and thereafter kept in private set-ups.
Case title - Bishu Kumar Tripura v. State of Tripura and Others
Case citation: 2022 LiveLaw (Tri) 7
The Tripura High Court recently observed that non-placing and non-consideration of bail orders, wherein bail had been granted to detenu in cases referred to in the detention order, vitiates the subjective decision of the detaining authority, and on this ground, the detention order can be set aside by the Court. The Bench of Chief Justice Indrajit Mahanty and Justice S. G. Chattopadhyay observed thus as it set aside a detention order passed against the detenu Bishu Kumar Tripura by the Government of Tripura under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 [PITNDPS Act].
Case Title: Sri Nishan Tripura v. The Secretary, Department of Health, Government of Tripura
Citation: 2022 LiveLaw (Tri) 8
A Division Bench of Tripura High Court, comprising of Chief Justice Indrajit Mahanty and Justice S.G. Chattopadhyay, has issued directions in a Public Interest Litigation (PIL) filed against alleged irregularities and misuse of fund allocated for the implementation of different health schemes in the State.
