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All High Courts Weekly Round-Up [June 13 - June 19, 2022]
Shrutika Pandey
23 Jun 2022 1:00 PM IST
![All High Courts Weekly Round-Up [June 13 - June 19, 2022]](https://www.livelaw.in/h-upload/2021/05/09/750x450_393154-high-courts-weekly-roundup-1.jpg "All High Courts Weekly Round-Up [June 13 - June 19, 2022]")
Allahabad High Court NOMINAL INDEX Mohammed Zubair v. State Of U.P. Thru. Prin. Secy./Addl Chief Secy. (Home), Lko. And Others Mokhtar Ansari v. State of U.P Prabhakar Pandey Vs. State Of U.P. And Others Anoop Kumar Singh And Another Vs. State Of U P And 2 Others Tanishk Srivastava, Lucknow Thru. Father Ranjeet Km. Srivastava v. State Of U.P. Thru. Prin. Secy. Prim. Edu....
NOMINAL INDEX
Mohammed Zubair v. State Of U.P. Thru. Prin. Secy./Addl Chief Secy. (Home), Lko. And Others
Mokhtar Ansari v. State of U.P
Prabhakar Pandey Vs. State Of U.P. And Others
Anoop Kumar Singh And Another Vs. State Of U P And 2 Others
Tanishk Srivastava, Lucknow Thru. Father Ranjeet Km. Srivastava v. State Of U.P. Thru. Prin. Secy. Prim. Edu. Civil Secrtt. Bapu Bhawan Lko And Others
Vivek Yadav Alias Surya Prakash Yadav v. State of U.P.
Harit Kisan Kalyan Samiti Vs. New Okhla Industrial Development Authority And 2 Others
ORDERS/JUDGMENTS OF THE WEEK
Case title - Mohammed Zubair v. State Of U.P. Thru. Prin. Secy./Addl Chief Secy. (Home), Lko. And Others
Citation: 2022 LiveLaw (AB) 291
The High Court dismissed a petition moved by the Co-Founder of Alt News, Mohammed Zubair challenging an FIR registered against him earlier this month for a tweet in which he allegedly called 3 Hindu seers- Yati Narasinghanand Saraswati, Bajrang Muni and Anand Swaroop as 'Hate mongers'
It may be noted that Zubair was booked by the Uttar Pradesh Police earlier this month under sections 295-A of the Indian Penal Code and section 67 of the Information Technology Act, 2000.
Case title - Mokhtar Ansari v. State of U.P [CRIMINAL MISC. BAIL APPLICATION No. - 46494 of 2021]
Citation: 2022 LiveLaw (AB) 292
While denying bail to former MLA Mukhtar Ansari (presently in jail) in connection with a case over misappropriation of MLA Funds fund in the year 2012-13, the High Court called him a dreaded and 'White Collored' criminal, an interstate mafia and canker in society
The Bench of Justice Rahul Chaturvedi also observed that Ansari is a hardened and habitual offender, who is in the sphere of crime since 1986 but surprisingly, he has managed not a single conviction against him.
Case title - Prabhakar Pandey Vs. State Of U.P. And Others [CRIMINAL REVISION No. - 2341 of 2001]
Citation: 2022 LiveLaw (AB) 293
In a significant observation, the High Court said that while exercising the revisional power, the Sessions Court cannot quash the cognizance and summoning order passed by the Magistrate as its revisional jurisdiction is very limited.
The Bench of Justice Shamim Ahmed further added that in case the Sessions Court finds any illegality, irregularity, or jurisdictional error while acting as a revisional court, then instead of quashing the proceedings, it had power only to issue direction by pointing out the error in the magistrate order.
Case title - Mukesh Bansal v State of UP
Citation: 2022 LiveLaw (AB) 294
Allahabad High Court on Monday issued certain guidelines/safeguards to prevent the misuse of Section 498A of the Indian Penal Code (IPC).
One of the guidelines issued by the Court states that after the registration of a First Information Report (FIR) under 498A IPC, no arrest or coercive action should be taken against the accused during the cooling-off period of two months.
During this period, the Court has ordered that the issue should be referred to a Family Welfare Committee (FWC). It may be noted Section 498-A punishes a woman's husband or his relatives if they subject her to cruelty.
Case title - Anoop Kumar Singh And Another Vs. State Of U P And 2 Others
Citation: 2022 LiveLaw (AB) 295
The High Court has observed that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheets.
The Bench of Justice Manju Rani Chauhan further observed that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of answer sheet.
Case title - Tanishk Srivastava, Lucknow Thru. Father Ranjeet Km. Srivastava v. State Of U.P. Thru. Prin. Secy. Prim. Edu. Civil Secrtt. Bapu Bhawan Lko And Others
Citation: 2022 LiveLaw (AB) 296
The High Court recently observed that receiving proper education is a Fundamental Right enshrined under Article 21-A of the Constitution of India.
The Bench of Justice Rajesh Singh Chauhan and Justice Subhash Vidyarthi further observed that educational authorities must ensure that the grievance relating to the admission to an institution is redressed with promptness and does not remain unattended.
Case title - Vivek Yadav Alias Surya Prakash Yadav v. State of U.P. [CRIMINAL MISC. BAIL APPLICATION No. - 23466 of 2022]
Citation: 2022 LiveLaw (AB) 297
The High Court has directed the State Government to consider the framing of a code laying down the protocol for receiving and bearing the carriage of mortal remains of soldiers martyred in the line of duty, for the funeral rites and any other allied matters.
The Bench of Justice Ajay Bhanot also stressed that the solemn obligation of the State is to accord full honours to military heroes who make the ultimate sacrifice in defence of the country.
"Duty is cast on a grateful nation to ensure that the patriots do not go unwept, unhonoured and unsung," the Court added.
Case title - Harit Kisan Kalyan Samiti Vs. New Okhla Industrial Development Authority And 2 Others [WRIT - C No. - 17175 of 2022]
Citation: 2022 LiveLaw (AB) 298
The High Court ordered a conditional stay on the demolition drive being carried out by the Noida Authority along the Yamuna floodplains.
The bench of Justice Manoj Kumar Gupta and Justice Sameer Jain issued this order on a plea challenging a public notice issued by the NOIDA Authority on June 8 declaring that no construction is permissible in the Yamuna/Hindon flood plains area and all the constructions therein shall be liable to be demolished.
Other updates from High Court
Four advocates of the Allahabad High Court have written to the Chief Justice to take cognizance of the 'illegal' demolition of the House in Prayagraj. Last evening, the Local authorities had demolished the home of Javed Mohammad, a leader of the Welfare Party of India and the father of activist Afreen Fatima.
The four advocates namely: K.K. Roy, M Saeed Siddiqui, Rajvendra Singh and Prabal Pratap have prayed that the house in question be reconstructed and compensation be provided to the wife of the activist, in whose name, the letter claims, the house was registered.
Bombay High Court
Nominal Index [2022 LiveLaw (Bom) 211 - 2022 LiveLaw (Bom) 220]
Latabai vs State of Maharashtra & Ors. 2022 LiveLaw (Bom) 211
Anand Singh vs The State of Maharashtra, with connected matters 2022 LiveLaw (Bom) 212
Choice Developers vs Pantnagar Pearl CHS Ltd. & Ors 2022 LiveLaw (Bom) 213
Narayan vs Mrs. Sangita and anr 2022 LiveLaw (Bom) 214
State of Maharashtra vs Adarsh Waterparks Pvt Ltd 2022 LiveLaw (Bom) 215
Jar Productions Private Limited vs The Union of India & Ors. 2022 LiveLaw (Bom) 216
Ravi Goenka vs The Bombay Presidency Radio Club Ltd. & Ors. 2022 LiveLaw (Bom) 217
Harmesh Singh Chadha @ Jimmy vs Municipal Corporation of Greater Mumbai 2022 LiveLaw (Bom) 218
Esrar Nazrul Ahemad Versus State of Maharashtra 2022 LiveLaw (Bom) 219
Mohammad Nawab Mohammad Islam Malik @ Nawab Malik vs The Directorate of Enforcement 2022 LiveLaw (Bom) 220
Judgments/Orders
Case Title – Latabai v. State of Maharashtra & Ors.
Citation – 2022 LiveLaw (Bom) 211
The Bombay High Court dismissed Shiv Sena MLA Latabai Sonawane's plea challenging a decision of the Scheduled Tribe (ST) Certificate Committee that had dismissed her claim of belonging to the Tokre Koli, an ST community.
A division bench observed that "the petitioner's father's caste in his birth register is shown as "Koli". It was a pre-Independence entry. The revenue record in the name of her grandfather shows his caste as "Hindu". "Hindu" is not a caste. Her sisters' caste in the school leaving certificates is also not shown as "Tokre Koli". The petitioner has no case that she, her sisters, father or grandfather has ever attempted to correct in their school record."
2. Victim May Seek Enhancement Of Accused' Sentence By Filing Revision Application: Bombay High Court
Case Title - Anand Singh Versus The State of Maharashtra, with connected matters
Citation –2022 LiveLaw (Bom) 212
A victim can seek enhancement of her/ his offender's jail time (sentence) only through a revision application and not by filing an appeal against the trial court's judgement, the Bombay High Court held.
While a victim's appeal against sentence may not be maintainable under section 372 of the CrPC, a revision application under section 401 of the CrPC for the same relief would survive. Such an application is also recognised under Rule 2(II)(a) of the Bombay High Court Appellate Side Rules 1960, the court said. The revision would go before a division bench.
Case Title: Choice Developers versus Pantnagar Pearl CHS Ltd. & Ors
Citation – 2022 LiveLaw (Bom) 213
The Bombay High Court reiterated that the Court is free to pass an order under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act) to grant interim measures of protection against a third party who is impleaded in the petition filed under Section 9.
4. [No Fault Principle] Employee Can Claim Compensation Both U/S 140 Motor Vehicle Act & U/S 3 Of Workmen's Compensation Act: Bombay High Court
Case Title : Narayan v Mrs. Sangita and anr
Citation - 2022 LiveLaw (Bom) 214
The Bombay HC recently dealt with a case wherein a truck driver, who was the employee of the owner of the truck met with a vehicular accident. As he had initiated compensation proceedings under section 140 of the Motor Vehicles Act 1988 ("M.V. Act"), his claim for compensation under the Workmen's Compensation Act 1923 (now Employees Compensation Act 1923) ("W.C. Act") was not entertained by the commissioner.
The court held that the compensation granted under chapter X of the M.V. Act does not forfeit the right of the employee to claim the compensation under section 3 of the 1923 Act as provided under Section 167 of the M.V. Act.
Case Title - State of Maharashtra vs Adarsh Waterparks Pvt Ltd
Citation - 2022 LiveLaw (Bom) 215
The Bombay High Court granted relief to the Maharashtra government and set aside a consent decree by which a private firm obtained development rights, in October 2020, for over 6,000 acre of land in Kanjurmarg village, including the 102-acre land designated for a Metro car shed.
"There was a larger responsibility cast on the advocates to disclosed all the facts...Suppression of all these facts has led the court pass the order. Thus, undeniably fraud of a huge proportion has been played by suppressing the claims of various other parties. The consent decree is a product of the fraud."
6. Services Rendered Abroad Amounts to Export Of Services, No GST Applicable: Bombay High Court
Case Title: Jar Productions Private Limited Versus The Union of India & Ors.
Citation - 2022 LiveLaw (Bom) 216
The Bombay High Court held that GST does not apply to the services rendered abroad as they amount to the export of services.
The division bench of Justice S.V. Gangapurwala and Justice M.G. Sewlikar has allowed the GST refund to the petitioner/assessee as the department has failed to establish that the incidence of tax was passed on to the client amounted to unjust enrichment.
Case Title : Ravi Goenka Versus The Bombay Presidency Radio Club Ltd. & Ors.
Citation - 2022 LiveLaw (Bom) 217
In a setback for the Bombay Presidency Radio Club Ltd., one of the oldest clubs in the city, the Bombay High Court refused to appoint a new inquiry officer to investigate allegations of assault against club-member and advocate - Ravi Goenka.
Refusing relief for the club, Justice Riyaz Chagla cited the delay on their part in approaching the High Court to substitute Justice (Retd.) S.J. Vazifdar. Justice Chagla rejected the club's justification, that since only very urgent matters were being taken up during the Covid-19 pandemic, they approached the court only in 2022.
Case Title: Harmesh Singh Chadha @ Jimmy v. Municipal Corporation of Greater Mumbai
Citation - 2022 LiveLaw (Bom) 218
Bombay HC held that bed & breakfast lodging permitted by the Maharashtra Tourism Development Corporation (MTDC) in residential premises to promote tourism requires licence from BrihanMumbai Municipal Corporation (BMC) as it is a commercial use of premises.
Justice Bharati Dangre observed that section 394 of the Mumbai Municipal Corporation Act, Act, 1988 (MMC Act) restricts certain activities including 'lodging' sans Civic chief's nod. Section 394 of the MMC Act imposes a restriction upon certain activities to be carried out within limits of the Corporation except on the licence granted by the Commissioner and this includes carrying of any trade upon any premises which is specified in part IV of Schedule M or any process or operation connected with any such trade and Part IV of Schedule 'M' cover an activity of 'lodging', the court noted.
Case Title: Esrar Nazrul Ahemad Versus State of Maharashtra
Citation - 2022 LiveLaw (Bom) 219
Refusing anticipatory bail to a man accused of forwarding a married woman's nude video to several people, the Bombay High Court observed that prima facie his alleged misdeed would be an offence under Section 67A of the Information Technology Act.
Section 67A prescribes the punishment for publishing or transmitting of material containing sexually explicit act.
Justice Bharati Dangre observed that the term 'sexually explicit' under section 67A of the IT Act wouldn't only mean the act of intercourse and may also include a nude video. Therefore, the court rejected the defence's submission that mere forwarding a nude video would not fall within the purview of 'sexually explicit' content and cited the Oxford dictionary meaning of "explicit," in support.
Case Title - Mohammad Nawab Mohammad Islam Malik @ Nawab Malik vs The Directorate of Enforcement
Citation - 2022 LiveLaw (Bom) 220
In the order refusing relief to NCP leaders Nawab Malik and Anil Deshmukh, the Bombay High Court held that the bar under Section 62(5) of the Representation of the People Act 1951 against allowing a prisoner to vote is applicable to an undertrial as well and not just to a convict.
"If a full play is given to the provisions contained in section 2(d) and Section 62(5) of the RP Act 1951, an inference becomes inescapable that a person in custody, either post conviction or during the course of investigation or trial, is prohibited from casting vote in any election", the court observed.
Further, the Court observed that permitting a person in prison to vote, who is otherwise barred from voting wouldn't strengthen democracy.
Calcutta High Court
Nominal Index [Citations 235- 247]
Shri Adhir Ranjan Chowdhury v. State of West Bengal 2022 LiveLaw (Cal) 235
Niladri Saha v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 236
Ramesh Malik & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 237
M/S. Dunlop India Limited and Ors v. Mathai and Sons 2022 LiveLaw (Cal) 238
Abhisek Panda & Ors v. West Bengal National University of Juridical Sciences & Ors 2022 LiveLaw (Cal) 239
Electrosteel Castings Limited Versus The Assistant Commissioner 2022 LiveLaw (Cal) 240
Niladri Saha v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 241
Ramesh Malik & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 242
Mahendra Kumar Jain v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 243
Suresh Babu @ Arakkal Arjunan Suresh Babu v. State of West Bengal 2022 LiveLaw (Cal) 244
Pranati Aguan v. State of West Bengal and Ors 2022 LiveLaw (Cal) 245
Suvendu Adhikari and Ors v. Hon'ble Speaker, West Bengal Legislative Assembly 2022 LiveLaw (Cal) 246
Raj Kumar Singh & Anr. versus Assistant Commissioner 2022 LiveLaw (Cal) 247
Orders/Judgments
Case Title: Shri Adhir Ranjan Chowdhury v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 235
The Calcutta High Court refused to initiate a probe by the Central Bureau of Investigation (CBI) into the alleged Metro Dairy scam, by opining that no case has been made out for interference as the State has not adopted any non-transparent or opaque sale of shares. The Court was adjudicating upon a Public Interest Litigation (PIL) petition moved by West Bengal Congress President Adhir Chowdhury alleging a lack of transparency in West Bengal government's sale of its 47 percent stake in Metro Dairy to private dairy organisation Keventer Agro Ltd in 2017. In the same year, one Singapore-based company had reportedly bought Metro Dairy's 15 per cent share at a much higher price. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed that the policy decision of the West Bengal government to sell its 47 per cent stake in Mother Dairy (respondent no. 5) to Keventer Agro Ltd in an auction for Rs 85 crore was neither illegal nor arbitrary. "Having regard to the above, we find that policy decision of the State to sell 47 % shares of respondent no. 5 MDL was neither illegal nor arbitrary and State had also not adopted non-transparent or opaque procedure for sale of shares, hence no case for interference in the present writ petition is made out which is accordingly, dismissed", the Court ruled.
Case Title: Niladri Saha v. State of West Bengal and other connected matters
Case Citation: 2022 LiveLaw (Cal) 236
The Calcutta High Court on Monday sought the State government's response in a batch of Public Interest Litigation (PIL) petitions seeking deployment of central paramilitary forces in West Bengal amid the ongoing protests against offensive remarks made against Prophet Mohammed by now suspended BJP leaders. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj underscored that the State authorities must ensure that no untoward incident takes place and further directed that the State should seek help from central forces in case they fail to control the situation. "In the meanwhile we express hope that the State authorities will take all possible steps to ensure that no untoward incident takes place and peace is maintained. In case, the State Police is unable to control the situation at any place then State authorities will take immediate steps to call the central forces", the Court observed. The Bench further directed the State government to consider looking into appropriate video footage to identify the miscreants responsible for the violence. The Advocate General was also instructed to consider the issue of grant of compensation to those who have suffered loss of property in the alleged incidents of violence and accordingly apprise the Court about the steps taken on the next date of hearing.
Case Title: Ramesh Malik & Ors v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 237
The Calcutta High Court ordered the Central Bureau of Investigation (CBI) to probe into recruitment of teachers in government-aided primary schools by the State's primary education board. Justice Abhijit Gangopadhyay directed the CBI to file an FIR to initiate an investigation into alleged illegal recruitment of teachers by the board based on the teachers' eligibility test in 2014.
Furthermore, the primary education board secretary Ratna Chakraborti Bagchi and president Manik Bhattacharya were also ordered to appear before the CBI at its office later by 5pm on Monday.
Case Title: M/S. Dunlop India Limited and Ors v. Mathai and Sons
Case Citation: 2022 LiveLaw (Cal) 238
The Calcutta High Court came down heavily on an unsecured creditor seeking a stay of the e-auction process to liquidate plant and machinery of Dunlop India Ltd, opining that it is a desperate attempt to keep the claims of the creditors and workers uncertain and in a limbo for all times to come. Justice Moushumi Bhattacharya was adjudicating upon an application moved by one Miller Traders Private Limited, an unsecured creditor of Dunlop India Ltd seeking a stay of an e-auction sale notice dated February 21, 2022.
Case Title: Abhisek Panda & Ors v. West Bengal National University of Juridical Sciences & Ors
Case Citation: 2022 LiveLaw (Cal) 239
The Calcutta High Court restrained the West Bengal National University of Juridical Sciences (NUJS) from discontinuing online courses started by it in 2012 for already enrolled students and further opined that degrees and diplomas awarded on successful completion of the courses will be deemed to have been issued with the approval of the University Grants Commission. In or about in 2012, NUJS had decided to start online courses in various subjects and for proper administration of these courses it took the assistance of a facilitator- an organisation called Ipleaders. Thereafter, IPleaders and NUJS made an arrangement between themselves with regard to allocation of work and responsibilities and the sharing of revenue earned from the students. A Bench comprising Justice Subhendu Samanta and Justice I. P. Mukerji opined that it would be inequitable to discontinue the courses.
Case Title: Electrosteel Castings Limited Versus The Assistant Commissioner
Citation: 2022 LiveLaw (Cal) 240
The Calcutta High Court has ruled that cess is not applicable on the coal used as an input for manufacturing finished goods for the domestic supply. The single bench of Justice Md. Nizamuddin has observed that goods which are subject to a nil rate of cess would be construed as exempt supplies for purposes of the formula prescribed in Rule 89 (4) of the CGST Rules. Therefore, it deserves to be excluded from the calculation of adjusted total turnover. he court noted that cess is akin to the components of GST, which is a constitutionally approved amalgam of State taxes, which existed prior to the commencement of the GST regime. The Goods and Services Tax Compensation Cess Rules, 2017 were also framed and made effective from 1st July, 2017, wherein the Central Goods and Services Tax Rules, 2017 were adapted. Having regard to the conscious use of the expression "mutatis mutandis" in Section 11 of the Cess Act, all the provisions of the CGST and IGST Acts would be squarely applicable to the levy, collection, and refund of the Cess Act. The words "tax" and "cess" for the purpose of the Act would have to be used interchangeably.
Case Title: Niladri Saha v. State of West Bengal and other connected matters
Case Citation: 2022 LiveLaw (Cal) 241
The Calcutta High Court vide order dated June 15 has reiterated that the State authorities must assess the ground situation and take steps to deploy central paramilitary forces if the need arises before any loss of life or property takes place. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a batch of Public Interest Litigation (PIL) petitions seeking deployment of central paramilitary forces in West Bengal amid the ongoing protests against offensive remarks made against Prophet Mohammed by former BJP spokespersons Nupur Sharma and Naveen Kumar Jindal.
The Court further stated that the State authorities must take all possible preventive steps to ensure that no such incident takes place. The State authorities were also directed to expeditiously collect video footages and take action against the miscreants in terms of Sections 15A, 15B and 15C of the West Bengal Maintenance of Public Order Act, 1972
Case Title: Ramesh Malik & Ors v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 242
The Calcutta High Court ordered the Central Bureau of Investigation (CBI) to set up a special investigation team (SIT) under the supervision of a Joint Director of its anti-corruption branch to probe alleged irregularities in the recruitment of teachers in state government-sponsored and aided primary schools. The Court also directed that the SIT members cannot be transferred from Kolkata until the conclusion of the probe.
Justice Abhijit Gangopadhyay on the last date of hearing had directed the CBI to file an FIR to initiate an investigation into alleged illegal recruitment of teachers by the board based on the teachers' eligibility test in 2014. Furthermore, the primary education board secretary Ratna Chakraborti Bagchi and president Manik Bhattacharya were also ordered to appear before the CBI at its office later by 5pm on Monday.
Case Title: Mahendra Kumar Jain v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 243
The Calcutta High Court ordered the setting up of a special investigating team (SIT) to investigate the death of a 25-year-old woman Rasika Jain, who had fallen from the third-floor terrace of her in-law's house in February 2021, following which her family members complained of foul play. They moved the High Court claiming that the police were not properly pursuing the case and prayed for the court's intervention. Justice Shampa Sarkar opined that the investigation into the case by the State police authorities has been 'slow and directionless'.
Case Title: Suresh Babu @ Arakkal Arjunan Suresh Babu v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 244
The Calcutta High Court held that a customer merely visiting a brothel for sexual pleasure cannot be held liable for offences under the Immoral Traffic (Prevention) Act 1956 (Act). Justice Ajoy Kumar Mukherjee underscored that what is punishable under the Act is sexual exploitation or abuse of a person for commercial purpose and to earn the bread thereby, keeping or allowing a premises as brothel.
"Mere visiting the house of sex worker as customer cannot be presumed to be living on earnings of sex workers. To invoke the presumption it must be shown that he was found in the company of the sex worker on some other occasion," the Court observed.
Case Title: Pranati Aguan v. State of West Bengal and Ors
Case Citation: 2022 LiveLaw (Cal) 245
The Calcutta High Court has recently observed that the right to equality enshrined under Article 14 of the Constitution does not mean giving equal treatment or equal protection of the law to persons who are unequals and that its violation would entail giving iniquitous treatment to persons falling within the same bracket despite their homogeneous characteristics.
Justice Moushumi Bhattacharya was adjudicating upon a plea seeking cancellation of amendments made to the West Bengal School Service Commission (Selection for appointment to the Posts of Headmaster/Headmistress in Secondary or Higher Secondary and Junior High Schools) Rules, 2016 as notified on March 24, 2017 and all subsequent Notifications issued thereafter to the extent of imposing enhanced qualifications for selection of Headmasters/Headmistresses in Secondary, Higher Secondary and Junior High Schools.
12. Calcutta High Court Disposes BJP MLA Suvendu Adhikari's Plea After Speaker Revokes Suspension
Case Title: Suvendu Adhikari and Ors v. Hon'ble Speaker, West Bengal Legislative Assembly
Case Citation: 2022 LiveLaw (Cal) 246
The Calcutta High Court disposed of a writ petition challenging the decision of West Bengal Assembly Speaker Biman Bandyopadhyay to suspend Leader of the Opposition Suvendu Adhikari and four other BJP MLAs from the West Bengal Legislative Assembly. The Court was apprised that the Speaker on Thursday had revoked the suspension of the BJP MLAs including that of Leader of Opposition Suvendu Adhikari after consultation with the State's Parliamentary Affairs Minister Partha Chatterjee.
Justice Rajasekhar Mantha had earlier sought response from Speaker Biman Bandyopadhyay in the plea filed by the saffron party legislators challenging his decision. Thereafter, the Court had underscored that the pendency of the plea would not stand in the way of the parties resolving the issue in accordance with rules. "This Court is relieved to note that the motion suspending the petitioners from the House has come for consideration on another motion moved to withdraw the same. Suspension has been terminated", the Court observed.
Case Title: Raj Kumar Singh & Anr. versus Assistant Commissioner
Case Citation: 2022 LiveLaw (Cal) 247
The Calcutta High Court bench of Justice Md. Nizamuddin has held that the GST order passed without giving an opportunity of personal hearing is against the principles of natural justice. The petitioner has challenged the adjudication order passed by the Adjudicating Authority. The primary ground of challenge was that the order was passed in violation of the principle of natural justice by not affording an opportunity of personal hearing to the petitioners in spite of a specific request. The court set aside the GST order and remanded the matter back to the Adjudicating Officer to pass a fresh order after giving an opportunity of hearing to the petitioners or their authorised representative within eight weeks.
Important Developments
Case Title: Masum Ali Sardar v. State of West Bengal & Ors and other connected matters
The Calcutta High Court sought the State government's response in a Public Interest Litigation (PIL) petition seeking initiation of criminal proceedings against suspended BJP leaders Nupur Sharma and Naveen Kumar Jindal over their derogatory remarks against Prophet Mohammad that led to an outrage in India and in Gulf countries. The plea also sought the recall of orders suspending internet services and imposition of Section 144 of CrPC in areas wherein protests broke out in Howrah district of West Bengal. Furthermore, the constitution of a Committee under the supervision of a retired Judge of the High Court was also sought to inquire into the excesses of law enforcement personnel in the affected areas.
Delhi High Court
NOMINAL INDEX
Citations 2022 LiveLaw (Del) 566 TO 2022 LiveLaw (Del) 577
Case Title: Mukish v. State 2022 LiveLaw (Del) 566
Title: BRINDA KARAT AND ANR. v. STATE OF NCT OF DELHI AND ANR. 2022 LiveLaw (Del) 567
Case Title: Prem Brothers Infrastructure LLP. versus National Faceless Assessment Centre & Anr. 2022 LiveLaw (Del) 568
Case Title: SANTOSH KUMAR v. UNION OF INDIA & ANR 2022 LiveLaw (Del) 569
Case Title: SURENDER @ TANNU @ TANVA v. STATE OF NCT OF DELHI 2022 LiveLaw (Del) 570
Case Title: THE EUROPEAN UNION REPRESENTED BY THE EUROPEAN COMMISSION v. UNION OF INDIA & ORS. 2022 LiveLaw (Del) 571
Case Title: HANUMAN BENIWAL AND ORS. v. VINAY MISHRA AND ORS. 2022 LiveLaw (Del) 572
Case Title: VISHWANATH PRATAP SINGH v. ELECTION COMMISSION OF INDIA & ANR 2022 LiveLaw (Del) 573
Case Title: DEVENDER GUPTA v. CBI 2022 LiveLaw (Del) 574
Case Title: Davinder Singh Thapar versus Assistant Commissioner of Income Tax & Anr. 2022 LiveLaw (Del) 575
Case Title: Jindal Exports and Imports Private Limited Vs DCIT 2022 LiveLaw (Del) 576
Case Title: KULVINDER SINGH KOHLI v. STATE OF NCT OF DELHI & ORS 2022 LiveLaw (Del) 577
1. Non-Examination Of 4-Yr-Old Rape Victim Not Fatal To Prosecution Case: Delhi High Court Upholds Life Sentence Under POCSO Act
Case Title: Mukish v. State
Citation: 2022 LiveLaw (Del) 566
The Delhi High Court has upheld life sentence awarded to a man for committing rape on a 4 year old minor girl within his close family.
A division bench comprising of Justice Mukta Gupta and Justice Mini Pushkarna was dealing with an appeal filed by one Mukish, challenging the Judgment dated 28th November, 2019 and order on point of sentence dated 29th November, 2019 passed by POCSO Judge.
The Court had convicted the appellant for the offence punishable under Sec. 6 of the Protection of Children from Sexual Offences Act, 2012 and awarded sentence of Imprisonment for life along with fine of Rs.10,000.
2. Hate Speeches Delivered By Political & Religious Leaders Bulldoze Constitutional Ethos, Warrant Stringent Peremptory Action: Delhi High Court
Title: BRINDA KARAT AND ANR. v. STATE OF NCT OF DELHI AND ANR.
Citation: 2022 LiveLaw (Del) 567
The Delhi High Court has observed that hate speeches especially delivered by elected representatives, political and religious leaders based on religion, caste, region or ethnicity militate against the concept of fraternity, bulldoze the constitutional ethos and violates Articles 14, 15, 19, 21 read with Article 38 of the Constitution of India.
Justice Chandra Dhari Singh also observed that the same is in blatant derogation of the fundamental duties prescribed under the Constitution and therefore warrant stringent peremptory action on the part of Central and State Governments.
The judgment began by referring to a shloka from Bhagwat Gita which states that whatever action is performed by a leader, common men follow in his footsteps; and whatever standards he sets by his acts, are pursued by his subjects.
3. Underreporting Of Income Due To Re-Computation Of Disallowance By The AO, Does Not Amount To Misreporting Of Income: Delhi High Court
Case Title: Prem Brothers Infrastructure LLP. versus National Faceless Assessment Centre & Anr.
Citation: 2022 LiveLaw (Del) 568
The Delhi High Court has ruled that where the underreporting of income allegedly done by the assessee is due to the re-computation of the disallowance under Section 14A of the Income Tax Act, 1961 by the Assessing Officer, it would not amount to misreporting of income.
The Bench, consisting of Justices Manmohan and Manmeet Pritam Singh Arora, observed that the underreporting of income by the assessee was due to the increase in the disallowance made under Section 14A, which was voluntarily estimated by the assessee and later recalculated by the Assessing Officer on the basis of the same material.
The Court held that in some cases underreporting of income may result in misreporting of income, however, the underreporting allegedly done by the assessee would not amount to misreporting of income.
4. Disclosing Elaborate Reasons For Passing 'Interception Orders' May Affect Intelligence: Delhi High Court
Case Title: SANTOSH KUMAR v. UNION OF INDIA & ANR
Citation: 2022 LiveLaw (Del) 569
The Delhi High Court has observed that the disclosure of elaborate reasons for interception orders would be against the modified disclosure requirements of procedural fairness.
"The disclosure of elaborate reasons for interception orders would be against the modified disclosure requirements of procedural fairness which have been universally deemed acceptable for the protection of other facets of public including the source of information leading to the detection of crime or other wrongdoing, sensitive intelligence information and other information supplied in confidence for the purpose of government or discharge of certain public functions," Justice Chandra Dhari Singh observed.
5. Supplementary Chargesheet Must Disclose Novel Evidence, No Cognizance Where No New Material Discovered By Further Investigation: Delhi High Court
Case Title: SURENDER @ TANNU @ TANVA v. STATE OF NCT OF DELHI
Citation: 2022 LiveLaw (Del) 570
The Delhi High Court has observed that where no new material or evidence has been discovered by the further investigation, any cognizance taken by the Magistrate may be said to be in contravention to Section 173 of the Code of Criminal Procedure.
Justice Chandra Dhari Singh added that there has to be an extent of novelty in the report or Supplementary Chargesheet filed by the Investigating Agency, which leads to discovery of material or evidence in a manner which was not before the Court in the primary report or Chargesheet.
7. If Party's Intention Not To Abandon Patent Application, High Court May Exercise Writ Jurisdiction To Extend Time For Filing Response To FER: Delhi HC
Case Title: THE EUROPEAN UNION REPRESENTED BY THE EUROPEAN COMMISSION v. UNION OF INDIA & ORS.
Citation: 2022 LiveLaw (Del) 571
The Delhi High Court has observed that the High Court, in exercise of its writ jurisdiction could grant an extension in filing a response to an FER (First Examination Reports), given that the applicant did not have the intention to abandon its patent application.
Justice Pratibha M Singh held that the consequence of a patent being abandoned and the Applicant being deprived of exclusivity for his invention, was quite extreme. Such a consequence should not be imposed on the applicant for no fault of its own.
8. RS Polls | Baseless Allegations That Voting Strategy Of An Individual/ Party Is Sold Off Damages Reputation, Encroaches Right To Privacy: Delhi HC
Case Title: HANUMAN BENIWAL AND ORS. v. VINAY MISHRA AND ORS.
Citation: 2022 LiveLaw (Del) 572
The Delhi High Court has observed that alleging that the voting strategy of an individual or of a political party or their nominees has been sold off without any foundational basis, deeply causes irreparable harm, loss and damage to the reputation of such an individual or party concerned and clearly encroaches upon the right of privacy.
Justice Anoop Kumar Mendiratta also added that while reputation is an integral part of the dignity of each individual, there is a need for balance between the freedom of speech and expression vis-Ã -vis the right to reputation.
9. Rajya Sabha Polls 2022: Delhi High Court Dismisses Candidate's Plea To Relax Deadline For Filing Nomination
Case Title: VISHWANATH PRATAP SINGH v. ELECTION COMMISSION OF INDIA & ANR
Citation: 2022 LiveLaw (Del) 573
The Delhi High Court has recently dismissed a plea filed by an individual candidate seeking directions on the Election Commission of India to grant him permission to file Nomination for the candidature of Rajya Sabha Election 2022.
A vacation bench comprising of Justice Poonam A. Bamba rejected the plea of one Vishwanath Pratap Singh after observing that the date for filing of Nomination Forms for the polls were already over. The last date for submission of nomination was May 31.
"It is also not in dispute that the list of candidates for the aforesaid elections has already been published and the said elections are scheduled for 10.06.2022 i.e. today," the Court noted in its order dated June 10.
10. S.19 Prevention Of Corruption Act | 'Failure Of Justice' Is A Facile Expression, Courts Must Be Circumspect While Determining It: Delhi High Court
Case Title: DEVENDER GUPTA v. CBI
Citation: 2022 LiveLaw (Del) 574
In reference to Section 19 of the Prevention of Corruption Act, which provides that a judicial order may be interfered with in case of irregularity in grant of sanction coupled with failure of justice, the Delhi High Court has cautioned,
"The criminal Court, particularly the superior Court, should make a close examination to ascertain whether there was really a failure of justice or it is only a camouflage."
Justice Chandra Dhari Singh dismissed a plea filed by a public servant named as an accused in a CBI case registered under sec. 13(2) read with sec. 13(1)(d) and 13(1)(e) of the Prevention of Corruption Act, 1988.
11. Notice Issued Under Section 148 Of The Income Tax Act Against A Deceased Assessee Is Invalid : Reiterates Delhi High Court
Case Title: Davinder Singh Thapar versus Assistant Commissioner of Income Tax & Anr.
Citation: 2022 LiveLaw (Del) 575
The Delhi High Court has reiterated that a notice issued under Section 148 of the Income Tax Act, 1961, on the ground of escapement of income from assessment, against a deceased assessee is invalid in law.
The Division Bench of Justices Jyoti Singh and Anoop Kumar Mendirattaobserved that though the notices were issued by the revenue authorities pursuant to an order of the Supreme Court, however, the said order did not deal with the issue of whether the notices could be issued against the deceased assesses. Therefore, the Court quashed the notices issued by the revenue authorities against the deceased assessee.
12. Delhi High Court Quashes Assessment Order For Not Giving Opportunity To File Objection To SCN
Case Title: Jindal Exports and Imports Private Limited Vs DCIT
Citation: 2022 LiveLaw (Del) 576
The Delhi High Court bench of Justice Manmohan and Justice Dinesh Kumar Sharma has quashed the assessment order as the assessee was not given an opportunity to file an objection to the show cause notice.
The petitioner/assessee has challenged the reassessment notices for the assessment years 2014-15 and 2015-16 as well as the assessment orders passed under Section 147 read with Section 143(3) of the Income Tax.
The petitioner contended that the notices and the orders were void as they had been issued in the name of 'Jindal Menthol & Investment Pvt. Ltd.', a non-existing entity as it had merged with the petitioner company with effect from April 1, 2013.
13. Summons U/S 160 CrPC Cannot Be Issued By Police Officer Without Registration Of FIR: Delhi High Court
Case Title: KULVINDER SINGH KOHLI v. STATE OF NCT OF DELHI & ORS
Citation: 2022 LiveLaw (Del) 577
The Delhi High Court has observed that summons or notices under Section 160 of the Code of Criminal Procedure can be issued by a Police Officer in order to set investigation into motion and that registration of FIR is must for the same.
Section 160 CrPC provides for a Police officer's power to require attendance of witnesses.
Justice Chandra Dhari Singh made the said observation while answering the question as to on what stage a notice under Section 160 of Code can be issued.
The Court observed that without registration of FIR, an investigation cannot be said to have been initiated. Furthermore, it said that even for an enquiry to be held legal and valid, the Police Officer has to act in accordance with provisions of the CrPC and he may not act beyond his powers by conducting a preliminary enquiry without making a report to a Magistrate
Gauhati High Court
A single-judge bench of the Gauhati High Court, comprising Justice Rumi Kumari Phookan held that only a Food Inspector can investigate a commission of offence related to food items as per the Food Safety Standards Act, 2006 (FSS Act).
The petitioner in this case was a company which has been granted license by the competent authority under the FSS Acr to manufacture pan-masala, which is classified as a food product under Food Safety and Standard Regulation. An FIR was registered against one Md. Imran Mohammed Hanif under Section 188/272/273/328 IPC, read with Section 26(2)(i)—(iv)(e) and Section 59 of the FSS Act, for possession of Rajanigandha pan-masala and Scented Tobacco and Baba Nabaratan pan-masala, etc. which are prohibited items of food, in view of the notification issued by the Commissioner of FSS and Drug Administration, Maharashtra.
Gujarat High Court
NOMINAL INDEX
Iqbal Hasanali Syed Versus State Of Gujarat 2022 LiveLaw (Guj) 208
Soni Anilkumar Prahladbhai V/S State Of Gujarat 2022 LiveLaw (Guj) 209
Sabirbhai Gafarbhai Multani Versus State Of Gujarat 2022 LiveLaw (Guj) 210
Hamidabanu Anawarbhai Multani & 2 Other(S) V/S Haiderbhai Bhikhabhai Bhetariya & 5 Other(S) 2022 LiveLaw (Guj) 211
M/s MBR Flexibles Ltd. Versus Deputy Commissioner Of State Tax 2022 LiveLaw (Guj) 212
Lalitkumar Bhimsen Hemrajani V/S District Collector 2022 LiveLaw (Guj) 213
Cazy Concepts and Mazes pvt. Ltd. & 1 other(s) v/s n. Venkta yayadri rao & 1 other(s) 2022 LiveLaw (Guj) 214
Ayyubkhan Kalekhan Pathan V/S State Of Gujarat 2022 LiveLaw (Guj) 215
Madhukantaben D/O Somabhai Shankarbhai Patel V/S State Of Gujarat 2022 LiveLaw (Guj) 216
K News Channel Versus State Of Gujarat 2022 LiveLaw (Guj) 217
Hemant Rameshchandra Rupala V/S Union Of India Thru The Secretary 2022 LiveLaw (Guj) 218
Kanhai Foods Ltd versus A and HP Bakes 2022 LiveLaw (Guj) 219
Pahal Engineers v. The Gujarat Water Supply and Sewerage Board 2022 LiveLaw (Guj) 220
Devshibhai Raydebhai Gadher Versus State Of Gujarat 2022 LiveLaw (Guj) 221
Amrishbhai Natubhai Patel V/S State Of Gujarat & 2 Other(S) 2022 LiveLaw (Guj) 222
Mansinh Amarsinh Devdhara V/S State Of Gujarat 2022 LiveLaw (Guj) 223
Chhayaben @ Hetalben Atulbhai Asodariya Versus The Registrar Of Birth And Death/Chief Officer 2022 LiveLaw (Guj) 224
Aasifbhai Hajiabdul Bhaya V/S State Of Gujarat & 1 Other(S) 2022 LiveLaw (Guj) 225
Bhalodiya Ravikumar Jaynatilal Versus State Of Gujarat 2022 LiveLaw (Guj) 226
ORDERS/JUDGMENTS OF THE WEEK
Case Title: Iqbal Hasanali Syed Versus State Of Gujarat
Citation: 2022 LiveLaw (Guj) 208
The former ASG at Gujarat High Court, IH Syed was granted anticipatory bail by a bench consisting of Justice Nikhil S. Kariel of the Gujarat High Court. The court found that the accused was not obliged to make out a special case for grant of anticipatory bail and even though the Court's power of granting anticipatory bail was not ordinary, its use was not confined to exceptional cases alone.
Case Title: Soni Anilkumar Prahladbhai V/S State Of Gujarat
Citation: 2022 LiveLaw (Guj) 209
The Gujarat High Court has held that an accused person can be competent witness, provided there is a written permission or there is a written request made to the concerned court at the instance of accused under Section 315 CrPC.
It thus dismissed the petition challenging the order of the Sessions Court which rejected the Petitioner's application for being treated as a witness, in the absence of a written request.
Case Title : Sabirbhai Gafarbhai Multani Versus State Of Gujarat
Citation: 2022 LiveLaw (Guj) 210
A division bench of the Gujarat High Court comprising Justices Vipul M. Pancholi and Rajendra M. Sareen has held that custody of a minor with his maternal grandparents could not be considered illegal custody or illegal confinement, given that the husband/ the father of the minor had remarried during subsistence of his marriage with his first wife, who was the mother of the said minor.
This petition was filed under Article 226 of the Constitution of India praying to direct the police authority to produce the corpus (Samir, a minor aged 9 years) and handover his custody to the petitioner (the father). The respondent in this case are maternal grandparents of the corpus.
Case Title: Hamidabanu Anawarbhai Multani & 2 Other(S) V/S Haiderbhai Bhikhabhai Bhetariya & 5 Other(S)
Citation: 2022 LiveLaw (Guj) 211
Taking into account the income of the deceased victim of motor accident, the spousal consortium and the parental consortium, the Gujarat High Court has increased the motor accident compensation for the Appellants (family of the deceased) by a significant amount, i.e., by Rs. 4,84,000.
Whereas the Trial Court had ordered payment of Rs. 15,58,900/-, the Bench comprising Justice RM Chhaya and Justice Sandeep Bhatt enhanced the compensation to Rs. 20,42,856/-. It observed, "all the three appellant no.1 would be entitled to spousal consortium, and appellants no.2 and 3 would be entitled to parental consortium of Rs.40,000/-(Rs.1,20,000/-)."
Case Title: M/s MBR Flexibles Ltd. Versus Deputy Commissioner Of State Tax
Citation: 2022 LiveLaw (Guj) 212
The Gujarat High Court bench of Justice A.J. Desai and Justice Bhargav D. Karia has quashed the order under GST on the grounds that the notice as well as the order were passed on the same date, denying the opportunity of hearing to the assessee.
Case Title: Lalitkumar Bhimsen Hemrajani V/S District Collector
Citation: 2022 LiveLaw (Guj) 213
Observing that the concerned agricultural land was already converted under Gujarat Land Revenue Code for 'Non-Agricultural' purpose of cottage industries, the Gujarat High Court has held that it makes no difference if there is a change in the nature of industries and has thus, allowed a petition seeking the revision of plan from 'Marble Cottage Industries' to 'Commercial Purpose'.
Case Title: crazy concepts and mazes pvt. Ltd. & 1 other(s) v/s n. Venkta yayadri rao & 1 other(s)
Citation: 2022 LiveLaw (Guj) 214
The Gujarat High Court has held that as per Section 22 of the Copyright Act, 1957, copyright would subsist in the life time of the author and until 60 years from the beginning of calendar year next following the year in which the author dies.
Thus, in a suit pertaining to infringement of artwork, Justice AP Thaker observed that it cannot be said that the copyright of the Plaintiff had come to an end on a particular date and that the actions of the Respondent reproducing the work under a different trade name cannot be injuncted. It observed,
"Copyright would not come to an end on a particular date, it will subsist till the death of the author and even 60 years thereafter. Therefore, admittedly the observations of the trial Court that copyright has expired in 2011 is legally not tenable."
Case Title: Ayyubkhan Kalekhan Pathan V/S State Of Gujarat
Citation: 2022 LiveLaw (Guj) 215
The Gujarat High Court has dismissed a petition seeking to quash a case under Section 138 of the Negotiable Instruments Act holding that whether the cheque was issued by the petitioner or his brother who had the same initials was a question to be considered at the stage of trial and prima facie the intention of the petitioner was to avoid paying back the huge sum to the complainant.
Justice Nirzar Desai dismissed a petition wherein the petitioner, a proprietor of AK Construction claimed that his brother's firm, AK Road Constructor was a separate entity and that the complaint against a cheque issued by AK Road Contractor did not have any connection with him.
Case Title: Madhukantaben D/O Somabhai Shankarbhai Patel V/S State Of Gujarat
Case Citation: 2022 LiveLaw (Guj) 216
Referring to the Registration Act, 1908, the Gujarat High Court has opined that if any right concerning a property valued above Rs. 100 has been relinquished or extinguished, it requires compulsory registration before the registering authority under the Act.
In the absence of such registration, such relinquishment cannot affect any immovable property comprised therein and the said document cannot be received as evidence of any transaction affecting such property or conferring such power, it added.
Case Title : K News Channel Versus State Of Gujarat
Citation: 2022 LiveLaw (Guj) 217
Citing non-compliance with Section 8 of the Gujarat Cinemas (Regulation) Act, 2004 and violation of principles of natural justice, the Gujarat High Court has quashed and set aside an order passed by the District Magistrate, Ahmedabad cancelling the licence of 'K News Channel'.
Operation Of Roads Within Defence Area Absolute Domain Of Defence Authorities: Gujarat High Court
Case Title: Hemant Rameshchandra Rupala V/S Union Of India Thru The Secretary
Citation: 2022 LiveLaw (Guj) 218
Observing that it is the 'absolute domain' of the Ministry of Defence to decide the opening or closing of the road which falls in the defence area, the Gujarat High Court has refused to grant relief to the Petitioners complaining that blocking of a road by the defence authorities was causing them hardship in approaching their society / homes.
"...It is for the army authorities to determine which area is sensitive or more prone to such hazard or which is not or through which a passage can be permitted or not and it is their sole discretion and in absence of any right of any party, a mandate cannot be issued."
Case Title: Kanhai Foods Ltd versus A and HP Bakes
Citation: 2022 LiveLaw (Guj) 219
The Gujarat High Court has ruled that issues involving enforcement of the conditions of a Franchise Agreement cannot be the subject matter of an application for interim measures under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act).
The Bench, consisting of Justices N.V. Anjaria and Samir J. Dave, held that conditions of a contract can be enforced only when the rights of the parties are finally adjudged and crystallised by the Arbitrator. The Court ruled that proceedings under Section 9 of the A&C Act are only for interim measures and that they cannot be converted into proceedings where a party can indirectly seek the final relief.
Case Title: Pahal Engineers v. The Gujarat Water Supply and Sewerage Board, R/SPECIAL CIVIL APPLICATION NO. 8727 of 2019.
Citation: 2022 LiveLaw (Guj) 220
The High Court of Gujarat has held that a writ petition would not be maintainable against an order of the arbitral tribunal whereby it has rejected the claim of a party on the ground that its pleadings were without verification and affidavit to that effect.
The Single Bench of Justice Vaibhavi D. Nanavati held that once the arbitrator rejects the claims of a party that essentially means a final disclosure of its claims and the order of the arbitrator can be challenged under Section 34 of the A&C Act.
Can't Refuse Arms License Unless Applicant Found Unworthy U/S 14 Arms Act: Gujarat High Court
Case Title : Devshibhai Raydebhai Gadher Versus State Of Gujarat
Citation: 2022 LiveLaw (Guj) 221
The Gujarat High Court recently allowed a writ petition challenging the order of District Magistrate rejecting the Petitioner's application for obtaining an arms license, stating that he was not found ineligible under Section 14 of the Arms Act, 1959.
Case Title: Amrishbhai Natubhai Patel V/S State Of Gujarat & 2 Other(S)
Citation: 2022 LiveLaw (Guj) 222
The Gujarat High Court has made it clear that when the service of an employee is dismissed in culmination of disciplinary inquiry on account of misconduct, the plea moved by him for regularization of the period of suspension cannot be considered in isolation.
It added that since the Petitioner had challenged the dismissal before the High Court, the two proceedings will go hand in hand.
"The Court is not inclined to entertain this petition as the claim of the petitioner with regards to the regularization of the period of suspension as prayed for now before this Court, cannot be examined in isolation, pending the challenge to the order of dismissal which the petitioner has already made in a separate petition," Justice AY Kogje said.
Case Title: Mansinh Amarsinh Devdhara V/S State Of Gujarat
Citation: 2022 LiveLaw (Guj) 223
The Gujarat High Court has recently explained it is a human tendency to wait for the returning of a missing family member for many years and therefore, in a suit for declaration for the death of such person, it cannot be said that the suit is barred by limitation.
The Appellant-Original Plaintiff had filed a suit for a declaration that his son was missing since 31.01.1984 and could not be found till the filing of the suit. Therefore, he sought that the Nagarpalika, Surat declare his son dead and make an entry to this effect. No written statement was filed by the Defendant-State. However, the suit was dismissed by the Trial Court and a first appeal against the same was also unsuccessful on ground of limitation.
Case Title : Chhayaben @ Hetalben Atulbhai Asodariya Versus The Registrar Of Birth And Death/Chief Officer
Citation: 2022 LiveLaw (Guj) 224
The Gujarat High Court recently allowed a writ seeking direction upon the Registrar of Birth and Death/Chief Officer, to delete the name of a minor's biological father's name from his birth certificate and replace it with his adoptive father's name.
For this, Justice A.S. Supehia opined that neither is the consent of the biological father required to be obtained by the registrar nor is he required to be arraigned as a party to the writ petition, as the adoption deed was not in question.
Case Title: Aasifbhai Hajiabdul Bhaya V/S State Of Gujarat & 1 Other(S)
Case No.: R/CR.MA/14875/2017
Citation: 2022 LiveLaw (Guj) 225
Observing the difference between the rejection of bail in a non-bailable case and the cancellation of bail, the Gujarat High Court has quashed the bail order of an Accused person on the ground that 'misused the liberty and grossly violated the conditions of the bail.'
The Applicant (Original Complainant) indicated that goods worth INR 42,35,000 were stolen from his house and as a result a complaint was registered for offences punishable under Sec 457, 454, 380 and 114 of the IPC. However, it was submitted that Respondent No. 2 (Accused person) committed the crime of a similar nature during the pendency of the instant proceedings and therefore, bail should not be allowed to continue. There were also additional averments that the Accused person was served notice in 2017 for the instant application and yet he chose not to cooperate with it. The APP submitted that the Accused person had committed several offences of similar nature, including during the pendency of the petition. Two more offences were committed in 2021 and therefore, bail ought to be cancelled.
Case Title : Bhalodiya Ravikumar Jaynatilal Versus State Of Gujarat
Citation: 2022 LiveLaw (Guj) 226
A single judge bench of the Gujarat High Court consisting of Justice Biren Vaishnav held that delay in appointment, when entirely attributable to the employer and caused due to no fault of the candidate could not be allowed to result in a delayed promotion for the said candidate.
Briefly, the facts of this case are that the Gujarat Panchayat Services Selection Board issued an advertisement for recruitment to the post of Multi-Purpose Health Worker (Male). The petitioner applied for the same online. He was placed at Serial No. 677, as his written test marks were 55.80 and he got additional 2.79 marks for sports, making his total 58.59.
Himachal Pradesh High Court
The Himachal Pradesh High Court bench of Justice Sabina and Justice Satyen Vaidya has deleted the addition on the grounds that the Assessing Officer (AO) has failed to consider genuine purchases and sales entered in the books of account.
The respondent/assessee company followed a direct marketing business model and derived income from retail trading of various consumer goods. The assessee had declared gross turnover to the tune of Rs.91,90,10,669 and the net profit was declared to the tune of Rs.1,06,69,510. Thus, the net profit rate was 1.16%.
Jammu and Kashmir and Ladakh High Court
Case Title: Farooq Ahmad Wani v. Abdul Khaliq
Case Citation: 2022 LiveLaw (JKL) 44
The Jammu and Kashmir and Ladakh High Court has recently observed that provision of Section 395 CrPC for making a reference to the High Court cannot be invoked merely because the accused is not getting any proper legal assistance or that his counsel has been threatened.
Justice Pankaj Mithal observed:
"Reference can be made to the High Court by the Session Judge only in the following two contingencies: (a) Where in a pending case before the Session Court a question as to the validity of any provision of any Act, Ordinance or Regulation is involved or if any such provision in the opinion of the court is invalid or inoperative but has not been so declared by the High Court and the Supreme Court; and (b) Where any question of law arises for consideration."
Case Title : Shahnawaz Shah v High Court of JK and others
Case Citation: 2022 LiveLaw (JKL) 45
The Jammu and Kashmir and ladakh High Court recently quashed the termination order of an employee, working with subordinate judiciary in J&K, and held that unauthorized absence cannot and must not amount to "automatic cessation" of service, even if the delinquent is a probationer.
A bench comprising Justices Ali Mohammad Magrey and Puneet Gupta quashed the termination order of the petitioner who was posted as orderly in the Family Court, Srinagar. The termination order was issued by Principal Secretary to Chief Justice of High Court under Rule 21-(1) (b) of the J&K Civil Services (Classification, Control and Appeal) (CCA) Rules, 1956 on September, 30, 2021 on account of alleged five days unauthorized absence of petitioner from duty.
Case Title : Rouf Ahmad Mir Vs SSP And Anr
Case Citation: 2022 LiveLaw (JKL) 46
The Jammu and Kashmir and Ladakh High Court recently ruled that although Section 438 of the CrPC gives concurrent jurisdiction to High Court and Sessions Court to consider an anticipatory bail application of an accused yet, as a matter of ordinary practice, High Court does not entertain such applications unless the person apprehending arrest has exhausted the remedy before the Sessions Court or in case there exist exceptional circumstances.
Case Title : Ajay Kumar Agarwal v Union Territory of JK and Ors.
Case Citation: 2022 LiveLaw (JKL) 47
The Jammu and Kashmir and Ladakh High Court recently ruled that any documentary or oral evidence produced before the Investigating Officer (IO) during the course of investigation by any person including the accused- which is relevant, necessary or desirable for the purposes of investigation, cannot be thrown out by the IO by seeking shelter under Section 91 of the Code of Criminal Procedure (CrPC).
A single bench of Justice Sanjeev Kumar made the observation in a plea wherein the petitioner (accused) was alleged to be involved in extorting high profile businessmen of the country by instituting fake complaints against them in different courts of UT of J&K. In his plea, the petitioner questioned the refusal of IO to receive and consider the documentary evidence in his possession, an act which in turn had deprived the petitioner of his right to prove his innocence before the Investigating Officer.
Jharkhand High Court
Case Title: Balkrishna Spintex Private Limited versus The New India Assurance Company Limited
Case Citation: 2022 LiveLaw (Jha) 58
The Jharkhand High Court bench of Justice Aparesh Kumar Singh and Justice Deepak Roshan has held that upon deposit of 10% of the disputed tax amount during the pendency of appeals, recovery of any remaining balance is deemed to have been stayed in view of Section 107 Sub-section (6) and (7) of the CGST Act, 2017.
The notice under Section 79 of the CGST Act, 2017 was issued by the respondent/department for alleged recovery of government dues amounting to Rs. 4,28,86,464 upon the petitioner's banker, United Bank of India, without any adjudication process under Section 73 and 74 of the Act. The alleged dues relate to Central Goods and Services Tax, pertaining to the period of July, 2017 to March, 2019. However, the dues have been computed only on the basis of one GSTR-1 statement without giving the benefit of the input tax credit admissible to the petitioner as claimed through the GSTR-3B statement.
Karnataka High Court
Nominal Index:
CITIZENS ACTION GROUP v THE STATE OF KARNATAKA & Others. 2022 LiveLaw (Kar) 204
MURULY M.S. v. STATE OF KARNATAKA & others. 2022 LiveLaw (Kar) 205
Arun Vincent Rajkumar v S Mala. 2022 LiveLaw (Kar) 206
Hanumanthappa v State of Karnataka & Others. 2022 LiveLaw (Kar) 207
GANESH PRASAD HEGDE & Others v SUREKHA SHETTY. 2022 LiveLaw (Kar) 208
T.L. NAGARAJU v THE INSPECTOR OF POLICE. 2022 LiveLaw (Kar) 209
RT Rev Prasanna Kumar Samuel v State of Karnataka & others. 2022 LiveLaw (Kar) 210
D.ROOPA v H.N.SATHYANARAYANA RAO. 2022 LiveLaw (Kar) 211
MUZAMMIL PASHA v. NATIONAL INVESTIGATING AGENCY. 2022 LiveLaw (Kar) 212
XXXX versus XXXX. 2022 LiveLaw (Kar) 213
RAJAMMA H v THIMMAIAH V. 2022 LiveLaw (Kar) 214
BEML Ltd. v. Prakash Parcel Services Ltd. 2022 LiveLaw (Kar) 215
Judgments/Orders/Reports
Case Title: CITIZENS ACTION GROUP v THE STATE OF KARNATAKA & Others, Case No: WP 38401/2014.
Citation: 2022 LiveLaw (Kar) 204
The Karnataka High Court has directed the Executive Engineers (designated officers) of Bruhat Bengaluru Mahanagara Palike (BBMP) to take steps and remove encroachments which exist in the tank area of Subramanyapura lake and Begur lake.
Case Title: MURULY M.S. v. STATE OF KARNATAKA & others
Case No: WRIT PETITION NO.10688 OF 2022
Citation: 2022 LiveLaw (Kar) 205
The Karnataka High Court has held that Section 40 of the Wild Life (Protection) Act, 1972 permits private ownership of live elephants and there is no bar in giving them up in adoption, so long as the transaction is of non-commercial nature.
3. S.147 NI Act | Every Offence Under Negotiable Instruments Act Is Compoundable: Karnataka High Court
Case Title: Arun Vincent Rajkumar v S Mala
Case No: CRIMINAL REVISION PETITION No.579 OF 2015
Citation: 2022 LiveLaw (Kar) 206
The Karnataka High Court recently said that Section 147 of the Negotiable Instruments Act makes every offence punishable under the Act as compoundable and there is no bar on parties to compound the offence.
Case Title: Hanumanthappa v State of Karnataka & Others
Case No: Criminal Petition No. 3997/2022
Citation: 2022 LiveLaw (Kar) 207
The Karnataka High Court recently granted bail to an accused alleged of sexually assaulting a minor girl and marrying her, after the victim and her mother turned hostile in court during the trial.
5. Stridhan Cannot Be Retained By Family Of Husband On Annulment Of Marriage: Karnataka High Court
Case Title: GANESH PRASAD HEGDE & Others v SUREKHA SHETTY
Case No: CRIMINAL PETITION No.4544 OF 2018
Citation: 2022 LiveLaw (Kar) 208
The Karnataka High Court has said that annulment of marriage cannot mean that all the articles that woman carried to the matrimonial house can be retained by the family of the husband.
Case Title: T.L. NAGARAJU v THE INSPECTOR OF POLICE,
Case No: WRIT PETITION (HC) NO.42/2022
Citation: 2022 LiveLaw (Kar) 209
The Karnataka High Court has observed that the decision of the suitability of partners to a marital tie rests exclusively with the individuals themselves. Neither the State nor the Society can intrude into that domain.
7. 'No Material Against Him': Karnataka High Court Quashes POCSO Case Against Bishop
Case Title: RT Rev Prasanna Kumar Samuel v State of Karnataka & others
Case No: WP 5923/2018
Citation: 2022 LiveLaw (Kar) 210
The Karnataka High Court recently quashed the proceedings initiated by a Sessions Court against Reverend Prasanna Kumar Samuel under the Protection of Children from Sexual Offences Act 2012. He is the Bishop of Church of South India (CSI) Karnataka Central Diocese, Bengaluru.
Case Title: D.ROOPA v H.N.SATHYANARAYANA RAO
Case No: CRIMINAL PETITION NO.72 OF 2022
Citation; 2022 LiveLaw (Kar) 211
The Karnataka High Court has held that a pure official communication between two people, without it being referred to any other department or a quarter, cannot become the ingredient of Section 499 of the IPC.
Case Title: MUZAMMIL PASHA v. NATIONAL INVESTIGATING AGENCY
Case No: WRIT PETITION No.19012 OF 2021
Citation: 2022 LiveLaw (Kar) 212
The Karnataka High Court has directed the National Investigation Agency (NIA) to furnish in two weeks time the documents which include statements of witnesses recorded by the local police investigating the DJ Halli riot case of 2020 (before the probe was transferred to NIA), to an accused in the case.
Case Title: XXXX versus XXXX
Case No: MFA NO.102625/2015 (MC)
Citation: 2022 LiveLaw (Kar) 213
The Karnataka High Court has held that a wife calling her husband an impotent without legally substantiating the same by itself would amount to cruelty within the meaning of Section 13(ia) of the Hindu Marriage Act.
Case Title: RAJAMMA H v THIMMAIAH V
Case No: WRIT PETITION No.11265 OF 2022
Citation: 2022 LiveLaw (Kar) 214
High Court has said that an application filed under section 12 of the Protection of Women from Domestic Violence Act, 2005, should be decided by the Magistrate within two months (sixty days) from the date of its presentation.
Case Title: BEML Ltd. v. Prakash Parcel Services Ltd. M.F.A. No. 4180 of 2019 (AA).
Citation no: 2022 LiveLaw (Kar) 215
The High Court of Karnataka has held that a subsequent Section 8 application would be non-maintainable when the order of the arbitrator accepting objection to its jurisdiction was not challenged.
Other reports:
Case Title: Rakesh P v. State of Karnataka
Case No: Writ Petition No 4574/ 2021
The Karnataka High Court on Friday directed the concerned state authorities to take appropriate action and not permit the use of Loudspeakers, Public Address System (PA) and other musical instruments producing sounds between 10 pm to 6 am at any Religious places and Pubs or restaurants.
Case Title: Arun Kumar Agarwal And Union of India and Others
Case No: WP 11723/2022
The Karnataka High Court has issued notice to the Central government and other respondents on a petition filed by a senior citizen Arun Kumar Agarwal seeking directions to permit administration of the Covovax vaccine, manufactured by M/s. Serum Institute of India Pvt. Ltd to persons above the age of 18 years
Kerala High Court
Nominal Index [Citations 2022 LiveLaw (Ker) 274 - 287]
Arjun Reghu v. State of Kerala & Anr, 2022 LiveLaw (Ker) 274
K.K Ibrahim v. Cochin Kaagaz, 2022 LiveLaw (Ker) 275
Rajan J. Pallan & Anr. v. Municipal Corporation of Thrissur & Ors, 2022 LiveLaw (Ker) 276
Suresh Raj v. National Investigation Agency, 2022 LiveLaw (Ker) 277
Oriental Insurance Co. Ltd v. V. Babu & Ors, 2022 LiveLaw (Ker) 278
Vijay Babu v. State of Kerala & Anr, 2022 LiveLaw (Ker) 279
Aishwarya Mohan v. Union of India & Ors, 2022 LiveLaw (Ker) 280
K. Sumangala Devi v. Binu P.N & Ors, 2022 LiveLaw (Ker) 281
Rilgin V. George & Anr v. State of Kerala & Anr, 2022 LiveLaw (Ker) 282
Pauly Vadakkan v. Corporation of Cochin, 2022 LiveLaw (Ker) 283
Malli v. State of Kerala, 2022 LiveLaw (Ker) 284
Raveendran A v. Union of India & Ors, 2022 LiveLaw (Ker) 285
Shibily Sahib & Ors. v. Joint Registrar of Co-operative Societies & Ors, 2022 LiveLaw (Ker) 286
C.C Joy v. C.D Mini & Anr, 2022 LiveLaw (Ker) 287
Judgments/Orders This Week:
Case Title: Arjun Reghu v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 274
The Court has held that courts shall not employ a hypertechnical approach when the accused produces sufficient evidence in support of his argument that he was a juvenile at the time of commission of the crime. Justice A. Badharudeen added that the claimant discharging the burden mentioned in the Juvenile Justice (Care and Protection of Children) Act or its Rules is sufficient to prima facie satisfy the Court to decide the question of juvenility.
Case Title: K.K Ibrahim v. Cochin Kaagaz
Citation: 2022 LiveLaw (Ker) 275
The Court has recently held that mere reference of a party for settlement under Section 89 of the Code of Civil Procedure would not entitle refund of court fee as provided under Section 69A of the Kerala Court Fees and Suits Valuation Act, unless it has been settled between the parties. Justice A. Badharudeen held that although settlement of disputes dealt under Section 89 of CPC includes `arbitration' as well, a party is not entitled to get a refund of the court fee merely because they were referred to arbitration under Section 69 of the Act.
Case Title: Rajan J. Pallan & Anr. v. Municipal Corporation of Thrissur & Ors.
Citation: 2022 LiveLaw (Ker) 276
The Court has held that a request for convening a meeting as per Rule 7 of Kerala Municipality (Procedure for Meeting of Council) Rules can be rejected only if the conditions mentioned in the proviso to Rule 7(1) are not complied with or if the request is not made by one-third of the members in the Council existing at that time. Justice P.V. Kunhikrishnan also added that pendency of some cases before the Court is not a ground to reject a request for convening a meeting as per Rule 7(1).
4. NIA Court Can Entertain Application For Tender Of Pardon Preferred At Investigation Stage U/S 306 CrPC: Kerala High Court
Case Title: Suresh Raj v. National Investigation Agency
Citation: 2022 LiveLaw (Ker) 277
The Court held that a Special Court constituted under the National Investigation Agency Act can invoke the powers under Section 306 of the Code of Criminal Procedure (CrPC) to grant pardon to an accused at the post cognizance stage. A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran also opined that it is always advisable for a Special Court to consider an application for grant of pardon by itself if cognizance is taken directly, though it can be referred to the Chief Judicial Magistrate.
Case Title: Oriental Insurance Co. Ltd v. V. Babu & Ors.
Citation: 2022 LiveLaw (Ker) 278
The Court has held that in a claim under Section 166 of the Motor Vehicles Act, the petitioners must prove not only the negligence on the part of the driver or rider but also prove that the person alleged to have sustained injuries in a motor accident died in consequence of the accidental injuries. Justice A. Badharudeen added that it is the burden of the petitioners to adduce evidence to satisfy the allegations raised by them since grant of compensation therein is based on the principle of `fault' liability.
Case Title: Vijay Babu v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 279
The High Court has closed the proceedings in an anticipatory bail plea moved by actor-producer Vijay Babu in the case for allegedly revealing on social media, the identity of the actress who has accused him of sexually exploiting her. Justice Bechu Kurian Thomas closed the matter upon noting that the actor was booked under bailable offences in that case.
7. CLAT Clearance Mandate For NTPC Law Officer Appointment Violative Of Article 16: Kerala High Court
Case Title: Aishwarya Mohan v. Union of India & Ors
Citation: 2022 LiveLaw (Ker) 280
The High Court has held that the condition mandating applicants to clear CLAT for applying to the post of Assistant Law Officer in National Thermal Power Corporation Limited (NTPC) was violative of Article 16 of the Constitution of India. However, to avoid upsetting the entire selection process, Justice V.G. Arun directed the respondents to accept the petitioner's application and test her eligibility through a selection process.
Case Title: K. Sumangala Devi v. Binu P.N & Ors.
Citation: 2022 LiveLaw (Ker) 281
The Court has ruled that the right to preferential appointment obtained by a claimant under Rule 51A of Chapter XIV-A of the Kerala Education Rules (KER) does not continue to be available to them once this right has been effectuated through an appointment in future vacancies that arise in any category of teaching posts under the same educational agency. A Full Bench of Justice A.K Jayasanaran Nambiar, Justice Raja Vijayaraghavan V and Justice Mohammed Nias C.P thereby differed with the position in Sandhya T.N v. Jalaja Kumari & Ors [2008 (3) KLT 655] while adjudicating upon a reference made by the Division Bench doubting the correctness of the proposition of law laid down in the impugned decision.
Case Title: Rilgin V. George & Anr v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 282
The High Court allowed the anticipatory bail application moved by two lawyers accused of assaulting a police officer in uniform while he was at the Court in relation to an ongoing enquiry against him. Justice P.V. Kunhikrishnan decided to allow the plea upon suspecting that they were booked under Section 353 of the Indian Penal Code (IPC) in a deliberate attempt to implicate them in a non-bailable offence, particularly since that was the only non-bailable offence alleged against them.
Case Title: Pauly Vadakkan v. Corporation of Cochin
Citation: 2022 LiveLaw (Ker) 283
The Court has urged the State government and the Public Works Department (PWD) to expeditiously draw their attention to introducing and implementing safety protocols in the ongoing road work sites across the State. Justice Devan Ramachandran accordingly asked the Senior Government Pleader to ascertain whether there are any protocols with respect to the security and safety measures to be enforced in the ongoing work sites.
Case Title: Malli v. State of Kerala
Citation: 2022 LiveLaw (Ker) 284
The High Court stayed until further orders, the trial in the murder of 27-year-old tribal youth Madhu, who was beaten to death by a mob at Kadukumanna hamlet in Attappadi in February 2018 allegedly for stealing rice from a grocery shop. Justice Mary Joseph put the proceedings on hold and sought the response of the State on the matter to be informed within 10 days.
Case Title: Raveendran A v. Union of India & Ors.
Citation: 2022 LiveLaw (Ker) 285
The High Court approved the request for a post-mortem and DNA test of the Indian seafarer whose body was found in Tunisian waters after his family raised suspicions of homicide in his death. Justice V.G. Arun also suo moto impleaded the Director General of Police in the plea moved by the father of the 27-year-old seaman who went missing from his vessel.
Case Title: Shibily Sahib & Ors. v. Joint Registrar of Co-operative Societies & Ors.
Citation: 2022 LiveLaw (Ker) 286
The Court expressed its concern over the inaction of the police to avoid riots at a scheduled election to a Cooperative Society despite specific court orders, which in turn encourages the widespread politicisation of cooperative societies in the State. A Division Bench of Justice P.B. Suresh Kumar and Justice C.S Sudha observed that when this Court directs police protection for an election, the police is obliged to ensure that every member willing to cast vote is not obstructed by anyone. It was found that when the Police were informed by the Returning Officer himself that there would be law and order issues on the date of polling, the Police ought to have taken all necessary steps for the smooth conduct of the election.
14. Intention Of Parties A Key Factor To Ascertain Benami Transactions: Kerala High Court
Case Title: C.C Joy v. C.D Mini & Anr.
Citation: 2022 LiveLaw (Ker) 287
The High Court recently ruled that the intention of the parties is a key factor in determining if a transaction was benami or not, which could be ascertained from the tests laid down by the Apex Court for this purpose. A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas also laid down that as long as there is no evidence to the contrary, when a husband purchases property joining his wife as a name lender, he is still the beneficiary of such property, but if it was purchased in her favour, then she would be the beneficiary.
Other Developments:
Kerala High Court Asks State To Produce Alleged FIS In Swapna Suresh's Plea To Quash Conspiracy Case
Case Title: Swapna Prabha Suresh v. Station House Officer & Anr.
The Court directed the prosecution to produce a copy of the FIS and the alleged complaint against Swapna Suresh, the prime accused in the infamous gold smuggling case, in her plea to quash the FIR registered against her for allegedly spreading false information against MLA K.T Jaleel, Chief Minister Pinarayi Vijayan and the Government. Justice Ziyad Rahman also sought the view of the prosecution and posted the matter on Tuesday.
Case Title: State of Kerala v. XXX
Justice Kauser Edappagath of the High Court recused from hearing a petition moved by the Crime Branch challenging the order of the Ernakulam Additional Special Sessions Court which rejected its petition to forward the memory card allegedly containing the visuals of the crime in the 2017 actor sexual assault case for forensic examination.
Case Title: State of Kerala v. XXX
The High Court asked the Crime Branch to explain the significance of a change in the hash value of the memory card in its petition challenging the order of the Ernakulam Additional Special Sessions Court which rejected its petition to forward the memory card allegedly containing the visuals of the crime in the 2017 actor sexual assault case for forensic examination. Justice Bechu Kurian Thomas also asked the prosecution if it wasn't better if the accused is also heard in the matter and if this would benefit the accused in any manner.
Also Read: Former Kerala High Court Judge Justice MC Hari Rani Passes Away
Kerala High Court Asks Prosecution To Produce Case Diary In Vijay Babu's Pre-Arrest Bail Plea
Case Title: Vijay Babu v. State of Kerala & Anr.
The High Court continued hearing the anticipatory bail plea moved by Malayalam actor-producer Vijay Babu in the case where an actress accused him of sexually exploiting her. Justice Bechu Kurian Thomas asked the prosecution to produce the case diary in the matter while posting it tomorrow to conclude the arguments of the actor. The Court has been hearing the case at length for the last two days, analysing the WhatsApp and Instagram messages between the actor and the complainant in detail to ascertain the relationship between the duo.
Also Read: Kerala High Court Hears Actor Vijay Babu's Anticipatory Bail Pleas In Rape Case In-Camera
Madhya Pradesh High Court
Case Title: IN REFERENCE . (MADHYA PRADESH) versus ANKIT VIJAYVARGIYA S, with connected matter
Citation: 2022 LiveLaw (MP) 159
The Madhya Pradesh High Court, Indore Bench recently commuted death sentence of a man convicted for rape and murder of a 4-year-old girl, observing that since he himself was father to a minor girl, his chances of rehabilitation could not be ruled out. The division bench of Justice Subodh Abhayankar and Justice S.K. Singh commuted the death sentence of the Appellant to 20 years of imprisonment.
The Madhya Pradesh High Court has held that the claim for refund has been declined by assigning reasons which may be cryptic on bare perusal but are sufficient to enable the assessee to know the exact cause for the rejection of the claim for refund.
The division bench of Justice Sheel Nagu and Justice Maninder S. Bhatti has observed that the reasons assigned for declining the refund claim cannot categorise the orders as being non-speaking. The order does not dissuade the assessee from knowing the mind of the adjudicating authority or dissuade him from filing an appeal.
Madras High Court
A weekly round-up of important cases from Madras High Court and its subordinate courts.
Citations: 2022 LiveLaw (Mad) 248 To 2022 LiveLaw (Mad) 257
NOMINAL INDEX
A Shanmugam v. The Deputy Inspector General of Police and others, 2022 LiveLaw (Mad) 248
Smartha Barhmins living in the State of Tamil Nadu practicing and propagating the Religious Philosophy and tents of Advaitha Philosophy through P.S Sundaram and others v. Union of India and others, 2022 LiveLaw (Mad) 249
M/s Ankit Ispat Private Limited v. The Assistant Commissioner of Income Tax (OSD), 2022 LiveLaw (Mad) 250
M/s. Fenner (India) Limited v. The Assistant Commissioner of Income Tax, 2022 LiveLaw (Mad) 251
The Commissioner of Income Tax and Anr v. M/s. Roca Bathroom Products Private Limited, 2022 LiveLaw (Mad) 252
Chandrasegaram Vijayasundaram and others v. Principal Commissioner (Revision Application) and others, 2022 LiveLaw (Mad) 253
S. Nalini v. State of Tamil Nadu and others, 2022 LiveLaw (Mad) 254
S. Manjula v. G. Shoba and others, 2022 LiveLaw (Mad) 255
Tvt.LAF Enterprises Versus Commissioner of Commercial Tax, 2022 LiveLaw (Mad) 256
Udhaya Kumar v. The State and others, 2022 LiveLaw (Mad) 257
REPORTS
Case Title: A Shanmugam v. The Deputy Inspector General of Police and others
Citation: 2022 LiveLaw (Mad) 248
While dismissing a Police Inspector's plea for retrospective promotion, the Madras High Court has observed that entertaining such belated claims will result in unsettling the settled position. The court reiterated that settled positions cannot be unsettled after a lapse of many years.
Finding the petition to be devoid of any merits, a bench of Justice SM Subramaniam observed as follows:
"The employees, who have slept over their rights, cannot wake up one fine morning and knock the doors of the Court for the purpose of redressal of their grievances, which all are otherwise lapsed on account of efflux of time"
2.Smartha Brahmins Not A Religious Denomination, Madras High Court
Case Title: Smartha Barhmins living in the State of Tamil Nadu practicing and propagating the Religious Philosophy and tents of Advaitha Philosophy through P.S Sundaram and others v. Union of India and others
Citation: 2022 LiveLaw (Mad) 249
The Madras High Court recently observed that the Smartha Brahmins were just a caste/community without any peculiarity specifically attributable to them that distinguished them from other Brahmins of the State of Tamil Nadu. Thus, they could not be identified as a religious denomination and were not entitled to benefits under Article 26 of the Constitution.
Justice R Vijayakumar of the Madurai Bench was considering an application made by some members belonging to the Smartha Brahmin community claiming minority status for an institution run by them. Observing that the appellants had failed to establish that they constitute a denomination as Smartha Brahmins in the state of Tamil Nadu, the court held that the suit was mainly filed only to wriggle out of the provisions of the Tamil Nadu Recognised Private Schools Regulations Act 1973 by invoking the benefits under Article 26 of the Constitution.
3. Order Of ITAT Is Based On Evidence, Findings Based On Facts, Madras High Court Dismisses Tax Appeal
Case Title: M/s Ankit Ispat Private Limited v. The Assistant Commissioner of Income Tax (OSD)
Citation: 2022 LiveLaw (Mad) 250
The Madras High Court recently dismissed a tax appeal observing that there were no substantial question of law arisen for consideration.
The bench of Justice R Mahadevan and Justice Sathya Narayana Prasad were of the opinion that the order passed by the Commissioner of Income Tax (Appeals) which was confirmed by the Income Tax Appellate Tribunal was based on the evidence adduced before the same. "Such well-considered findings of the appellate authorities do not warrant any interference at the hands of this court", it observed.
Case Title: M/s. Fenner (India) Limited v. The Assistant Commissioner of Income Tax
Citation: 2022 LiveLaw (Mad) 251
The Madras High Court recently upheld the decision of the Income Tax Appellate Tribunal directing the assessing officer to exclude the royalty income from the business profits for the purpose of calculation of deductions under Section 80HHC of the Income Tax Act.
Justice R Mahadevan and Justice Sathya Narayana Prasad observed that the appellant could not produce concrete evidence to assert that the royalty income received from a subsidiary company was related to export business. Thus, the decision of the tribunal did not warrant any interference.
5. Period Of Limitation Under S.153 Of Income Tax Act Applies To Remand Proceedings: Madras HC
Case Title: The Commissioner of Income Tax and Anr v. M/s. Roca Bathroom Products Private Limited
Citation: 2022 LiveLaw (Mad) 252
The Madras High Court recently observed that the period of limitation under the Sections 153 (2A) or 153 (3) was applicable even for remad proceedings before the Assessing Officer, Transfer Pricing Officer or the Dispute Resolution Panel. The entire proceedings had to be conducted within a period of 9 months as contemplated under Section 144C (12) of the Income Tax Act.
The bench of Justice R Mahadevan and Justice Sathya Narayana Prasad further observed that in matters of transfer pricing, when the matter was remanded to the DRP, the Assessing Officer had to pass a denova draft and complete the entire proceedings within 12 months as otherwise the very purpose of extension would become meaningless.
Case Title: Chandrasegaram Vijayasundaram and others v. Principal Commissioner (Revision Application) and others
Citation: 2022 LiveLaw (Mad) 253
The Madras High Court recently upheld the order of the Principal Commissioner (Revision Application) and held that gold/silver ornaments that are worn in person and exceed Rs. 50,000 in value have to be declared before the Customs Authority.
Justice C Saravanan opined that the law was unambiguous in this regard. Though exemptions were provided under the Baggage Rules, 2016 it was limited to the extent permitted under the Rules. The court also opined that import of jewelry worth more than Rs. 50,000 could not be considered as bonafide baggage and could not be exempted from paying customs duty.
Case Title: S. Nalini v. State of Tamil Nadu and others
Citation: 2022 LiveLaw (Mad) 254
The Madras High Court on Friday dismissed a plea filed by S. Nalini and RP Ravichandran, convicts in the Rajiv Gandhi Assassination case, seeking premature release.
The bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala observed that the High Court did not have special powers that the Supreme Court has under Article 142 of the Constitution. Thus, it cannot order their release, like the Supreme Court did for Perarivalan, another convict in the assassination case. Hence the petition was dismissed as not maintainable.
8. Gift Deed Not Effective When Possession Not Handed Over; Can Be Cancelled: Madras High Court
Case Title: S. Manjula v. G. Shoba and others
Citation: 2022 LiveLaw (Mad) 255
The Madras High Court recently upheld the cancellation of a gift deed after noting that the possession was not handed over and that the deed was not acted upon by the parties. Hence, the High Court agreed with the trial court's decree dismising a suit seeking cancellation of the gift deed.
The bench of Justice AA Nakkiran agreed with the finding of the court below that the possession was not handed over and the gift deed was not acted upon hence, it was not a valid gift deed.
Case Title: Tvt.LAF Enterprises Versus Commissioner of Commercial Tax
Citation: 2022 LiveLaw (Mad) 256
The Madras High Court bench of Justice Anitha Sumanth has held that Section 129 of the CGST Act provides for the detention and seizure of the vehicle upon condition that an order of detention/seizure shall be passed at the time of detention/seizure and duly served upon the person transporting the goods.
Case Title: Udhaya Kumar v. The State and others
Citation: 2022 LiveLaw (Mad) 257
While quashing criminal proceedings against a person who was arrayed as an accused during a raid of a Massage centre which was allegedly a brothel, the Madras High Court bench of Justice N Sathish Kumar observed that merely because the petitioner was in the place, he could not be fastened with penal consequences.
The court opined that since there was no evidence to show that there was coercion by the petitioner on the sex workers to commit the act, he could not be penalised for his mere presence at the place.
OTHER DEVELOPMENTS
Case Title: S. Annapoorni v. K Vijay
Case No: Application No 5445 of 2018
On day two of the hearing pertaining to the original jurisdiction of the High Court to hear child custody and guardianship matters owing to the advent of the Family Courts Act 1984, the Additional Solicitor General for Madras High Court R. Sankaranarayanan made his submissions favouring the ouster of High Court's jurisdiction.
At the outset, the ASG stated that he was not appearing for the government but in his personal capacity.
He stated that if there was a law that was enacted by the Parliament or the Legislature providing something different from that provided in the Letters Patent, the same shall have authority over the Letter Patent, as provided under Clause 44 (which would prevail over Clause 17).
2. Ayodhya Case Mediator Sriram Panchu Moves Madras High Court Against Withdrawal Of Police Protection
Case Title: Sriram Panchu v. The State and others
Case No: W.P No. 14503 of 2022
Senior Advocate Sriram Panchu, who was the Supreme Court-appointed mediator in the Ayodhya Case, has recently approached the Madras High Court against withdrawal of police protection granted to him.
Mr. Panchu was given Z Category protection following an order of the Supreme Court in 2019. However, the Security Rearrangement Committee had withdrawn this security recently.
Case Title: U. Manickavel v. State rep. by Secretary and others
Case No: WP No. 2627 of 2014
Coming down heavily on the abuse of power among higher police officials, the Madras High Court has observed that indiscipline amongst higher officials of the police department causes disaster consequences. When the higher officials are not maintaining the expected level of discipline, they may not be in a position to control the force, which would result in the force losing morale.
Justice SM Subramaniam also cited instances of allegation in the public domain, as follows:
"Already there are several such allegations in the public domain regarding the usage of black film in the official vehicles by the higher officials of the police department, misuse of the department's name in the private vehicles, abuse of police force in the name of orderly in their residences or otherwise and several such allegations are either unnoticed or no action has been taken by the Government."
Case Title: G.Karthick v. The State of Tamil Nadu and Others
Case No: WP No. 12929 of 2022
A public interest litigation filed recently before the Madras High Court against the installation of former Tamil Nadu Chief Minister M. Karunanidhi's statue was withdrawn on Tuesday.
The petitioner, G. Karthick, had contended that one of the respondents, A Rajendran, in collusion with Government authorities, secured patta over and above the land owned by him in the given survey number and was now attempting to put up construction on the land.
Case Title: Vaishnavi Jayakumar v. State Commissioner for persons with disability and another
Case No: WP No. 11041 of 2020
The Chennai Metro Rail Limited (CMRL) on Wednesday informed the Madras High Court that it had taken steps to retrofit thirty-two metro stations to make them disabled-friendly and the same will be completed within six weeks' time.
The bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala was considering an application filed by a cross-disability rights advocate to direct the state and CMRL to retrofit its existing metro stations to comply with the Harmonised Guidelines and Space Standards for Barrier Free Built Environment for Persons With Disabilities and Elderly Persons issued by the Ministry of Urban Development in 2016 and to strictly comply with Section 41 of the Rights of Persons with Disabilities Act, 2016 read with Rule 15 of Rights of Persons with Disabilities Rules, 2017.
6. Covid-19 On The Rise: Madras High Court Issues Preventive Directions
Amid rising covid cases in the State, Chief Justice Munishwar Nath Bhandari of the Madras High Court has issued directions to be followed by Advocates and others while appearing in courts.
These preventive directions are as follows:
1. Advocates, parties appearing in person, Advocates' Clerks, Officers, and Staff members shall strictly adhere to the COVID-19 protocols, such as wearing face masks, washing hands frequently, sanitizing, and maintaining social distance inside the High Court campus.
2. Entry of Litigants is restricted inside the High Court campus unless their presence is specifically required by the courts concerned in relation to the court proceedings.
3. All the entrants shall sanitize their hands and undergo thermal scanning for temperature before frisking.
4. Gathering in the corridors or any other place within the High Court campus, shall be avoided.
Orissa High Court
Case Title: Koushalya Das v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 10
The Orissa High Court has declined to issue the writ of habeas corpus in favour of a woman who claimed custody of her minor child from her husband.
A Division Bench of Justices Sangam Kumar Sahoo and Murahari Sri Raman widely noted the observations made by the Apex Court in Tejaswini Gaud & Ors. v. Shekhar Jagdish Prasad Tewari & Ors., while discouraging issuance of habeas corpus for granting custody of child from one parent to another.
Punjab & Haryana High Court
Case Title : Raj Kumar v. State of Haryana and Others
Case Citation: 2022 LiveLaw (PH) 142
The Punjab and Haryana High Court, while dealing with a petition seeking action against alleged illegal construction raised by private respondent on a land allegedly leased to him by the Municipal Committee, held that since the respondent has already filed a civil suit thus, Municipal Committee was justified in not taking a final action during the pendency of the aforementioned suit.
Before any action could be taken respondent No. 6 has filed a civil suit and the same is pending adjudication. Thus, the Administrator, Municipal Committee, Ladwa was justified in returning a finding that final action would abide by the decision of the aforementioned suit. No preemptive action can be taken, a bench comprising Justice Sudhir Mittal observed in the facts of the case.
Case Title: National Highway Authority of India Versus The Competent Authority, Land Acquisition-cum-District Revenue Officer, Ludhiana and others, with connected matters
Case Citation: 2022 LiveLaw (PH) 143
The Punjab and Haryana High Court recently refused to exercise its writ jurisdiction in a dispute with regard to the assessment of the nature of the land to be acquired by the National Highway Authority of India and its market value.
The bench comprising Justice Anil Kshetarpal held that as per the scheme of the National Highways Act, 1956, in case of any dispute, the amount is to be assessed by the Arbitrator, nominated by the Central Government.
Case Title: Ashok Kumar Versus State of Haryana
Case Citation: 2022 LiveLaw (PH) 144
The Punjab and Haryana High Court has reiterated that filing of successive applications for anticipatory bail by a person apprehending arrest, without substantial change in circumstances, amounts to an abuse of process of Court.
Dismissing one such application, Justice Vikas Bahl imposed Rs.50,000/- cost, payable to District Legal Services Authority within a month.
Case Title : DHANPREET SINGH AND ANR V. STATE OF PUNJAB
Case Citation: 2022 LiveLaw (PH) 145
The Punjab and Haryana High Court, while dealing with a matter wherein usage of non-updated machinery led to the death of two labourers, held that provision of Factories Act, 1948 are not in substitution but are supplemental to any other Act; and thus they do not override the provisions of the Indian Penal Code.
The bench comprising Justice Vinod S. Bhardwaj observed that perusal of statement of objects and reasons of the Factories Act shows that the provisions are concerned with the working conditions and protection of the workers but the said Act does not prohibit operation of any other statute.
Case Title: SATPAL AND OTHERS VERSUS STATE OF PUNJAB AND OTHERS
Case Citation: 2022 LiveLaw (PH) 146
The Punjab and Haryana High Court has held that under Section 47-A of the Indian Stamp Act, if the Collector concerned believes that proper duty has not been paid on a respective property, he may give the person concerned reasonable opportunity of being heard and hold an enquiry under sub section (2).
The bench comprising Justice Jaishree Thakur added that Section 47-A (3) empowers the collector to make a person liable to pay the duty if it is found that the instrument has not been properly valued. This can be done within a period of three years from the date of the registration of any instrument.
Case Title: M/s SGM Packaging Industries versus M/s Goyal Plywood LLP
Case Citation: 2022 LiveLaw (PH) 147
The Punjab and Haryana High Court has ruled that even in the absence of an arbitration agreement between the parties, the matter can be referred to arbitration under Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act).
The Single Bench of Justice Lisa Gill reiterated that the MSMED Act being a Special Act shall prevail over the Arbitration and Conciliation Act, 1996 (A&C Act). The Court held that even if there was an agreement between the parties for resolution of disputes by arbitration, if a seller was covered under the MSMED Act, the agreement between the parties would have to be ignored in view of the mechanism provided under the MSMED Act.
Case Title : Smt. Satya Roopa Sinha v. Sarwan Kumar Mehto
Case Citation: 2022 LiveLaw (PH) 148
Punjab and Haryana High Court while dealing with a revision petition against the order passed by the Family Court, allowing respondent's application seeking DNA test to determine the paternity of the petitioner's child in response to her maintenance petition, held that since the marriage is disputed by the respondent, order of DNA test to determine paternity is not warranted.
Case Title: Deepali Sharma and another Versus Sub Divisional Magistrate cum Land Acquisition Collector, Mohali and another
Citation : 2022 LiveLaw (PH) 149
The Punjab and Haryana High Court while dealing with a writ petition pertaining to land acquisition under the National Highways Act, 1956, has held that Section 3(H)(4) thereof enables any person interested in the compensation, to file an application to the competent authority with a request to forward the dispute with regard to entitlement or apportionment to the Principal Civil Court.
The observation was made while dealing with a writ in the nature of mandamus wherein the petitioners were praying to direct the competent authority-Land Acquisition Collector to refer the dispute with regard to the apportionment of the compensation to the Principal Civil Court.
9. Person With Single Testicle Not Unfit To Serve Indian Navy: Punjab & Haryana High Court
Case Title : Union of India and others v. Neeraj Mor
Citation : 2022 LiveLaw (PH) 150
The Punjab and Haryana High Court has held that having 'single testicle' is not a disability that would render a candidate unfit for serving the Indian Navy. In reference to an order passed by the Centre declaring the Respondent herein unfit for enrolment in the Navy for the reason that he has a single testicle, a bench comprising Justice G.S. Sandhawalia and Justice Vikas Suri observed,
Case Title : Bhunesh v State of Haryana
Citation : 2022 LiveLaw (PH) 151
The Punjab and Haryana High Court recently deprecated the practice of filing successive bail applications, without any adequate ground/ change in circumstances. It also voiced concern over the unfortunate trend being adopted by "unscrupulous litigants" in which anticipatory bail is argued and when the Court is about to dismiss the petition, in order to avoid a detailed adverse order, the counsel seeks to withdraw the petition and after some days, without any justification, files a second anticipatory bail petition.
"There is nothing on record to show that the same disability is such of that kind which would come in his way for serving the Indian Navy. Neither the said order shows that by virtue of that genetic defect as such, the writ petitioner would not be in a position to serve the Indian Navy."
Case Title : Yashpal Gulati v. Kulwinder Kaur and Others
Citation : 2022 LiveLaw (PH) 152
The Punjab and Haryana High Court has held that the power to reject plaint under Order 7 Rule 11 CPC should be exercised only when the Court comes to a "definite conclusion" that the suit is either not maintainable or barred under the law.
The bench comprising Justice Anil Kshetarpal added that Order 7 Rule 11 CPC enlists various grounds on which the plaint can be rejected.
Case title - Som Dutt v. Babita Rani
Citation : 2022 LiveLaw (PH) 153
The Punjab and Haryana High Court observed recently that once the parties have separated and separation has continued for a sufficient length of time and any one of them presents a petition for divorce, it can well be presumed that the marriage has broken down.
"The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties," the Court remarked.
Case Title : Krishan v. State of Haryana
Citation : 2022 LiveLaw (PH) 154
The Punjab and Haryana High Court recently denied bail to a man, arraigned as an accused in a FIR under the Narcotic Drugs and Psychotropic Substances Act, 1985 and arrested, merely on the basis of a disclosure statement made by a co-accused.
Whereas it was the case of the bail applicant, Krishan, that there is no admissible evidence against him and that the 5 kgs and 100 grams opium contraband involved in the case was not recovered from him.
Case Title: Mrs. Manjit Kaul Versus Mr. Anil Kumar
Citation : 2022 LiveLaw (PH) 155
The Punjab and Haryana High Court has held that a suit claiming quantified damages for alleged defamation amounts to a 'money suit' and hence, ad valorem Court-fees would be payable on the amount claimed.
The observation was made by Justice Meenakshi I. Mehta while dealing with a revision petition against order of the Trial Court directing plaintiff to pay ad-valorem court fee in accordance with her claim for the recovery of Rs.10 lac for alleged defamatory language used by the defendant against her.
Case Title: Deen Mohd. Versus State of Haryana
Citation : 2022 LiveLaw (PH) 156
The Punjab and Haryana High Court recently upheld a trial court's order denying anticipatory bail to an accused, solely on the ground that he had tried to mislead the Court by concealing facts regarding dismissal of his earlier plea.
The bench comprising Justice Pankaj Jain observed,
"The law is well settled that where a process is "ex debito justitiae" the Court would refuse to exercise its discretion in favour of the applicant where the application is found to be wanting in bona fides...In the considered opinion of this Court, the petitioner has not approached the Court seeking relief of pre-arrest bail with the clean hands and the Lower Court was justified in dismissing the application filed by the petitioner."
Rajasthan High Court
Nominal Index [2022 LiveLaw (Raj) 184 - 2022 LiveLaw (Raj) 196]
Bhim Saini @ Bhimraj Saini v. State of Rajasthan with other connected matter 2022 LiveLaw (Raj) 184
Raju @ Rajkumar Through His Brother Sh. Sharwarmal v. State & Ors. 2022 LiveLaw (Raj) 185
Sarvjeet Kaur v. State of Rajasthan & Anr. 2022 LiveLaw (Raj) 186
Richa Dharu v. Hemant Panwar 2022 LiveLaw (Raj) 187
X v. Y 2022 LiveLaw (Raj) 188
Smt Kamla v. Hindustan Petroleum Corp. Ltd & Ors. 2022 LiveLaw (Raj) 189
Bajaj Allianz General Insurance Company Limited & Anr. .v. Sharda 2022 LiveLaw (Raj) 190
Manisha Vishnoi v. State of Rajasthan & Ors. 2022 LiveLaw (Raj) 191
Bhavin Tanwar v. State of Rajasthan & Anr. 2022 LiveLaw (Raj) 192
Bheru Lal v. State Of Rajasthan 2022 LiveLaw (Raj) 193
Chitrank Sharma v. State of Rajasthan through Public Prosecutor & Ors. 2022 LiveLaw (Raj) 194
Bhan Singh v. State Of Rajasthan & Ors. 2022 LiveLaw (Raj) 195
Victim v. State of Rajasthan & Ors. 2022 LiveLaw (Raj) 196
Judgments/ Orders of the Week
Case Title: Bhim Saini @ Bhimraj Saini v. State of Rajasthan with other connected matter
Citation: 2022 LiveLaw (Raj) 184
The Rajasthan High Court denied bail to two accused, including the girl's brother, in a case 'having a strong trait of honour killing'.
Essentially, the deceased-Azad and the accused petitioner-Bhim Saini's sister were in a relationship. As the girl's family was not pleased with the same, therefore, the couple eloped. They were later apprehended by the police and the girl was made to accompany the petitioner-side. The deceased filed a habeas corpus petition following which, the parties attempted to settle the matter through compromise and accordingly, the deceased withdrew the petition. In a close proximity of time, the boy went missing and after four days his dead body was found lying in a pond tied with the heavy iron material.
Justice Farjand Ali, while dismissing the bail application of the two accused, observed, "Needless, to observe that every citizen of this country is abided and governed by rule of Law and one has to follow it as no one is above the Law, as in fact no one can. Every citizen is principally embodied to access their fundamental right and legal right peacefully and if it is being hindered by any one, the rule of law and the procedure established by law is there for its recourse, but no citizen is allowed to take the course of law in its own hands, strictly not."
Case Title: Raju @ Rajkumar Through His Brother Sh. Sharwarmal v. State & Ors.
Citation: 2022 LiveLaw (Raj) 185
The Rajasthan High Court directed the State to release a convict, belonging to Below Poverty Line (B.P.L.) family, on parole of 7 days on his furnishing a personal bond in the sum of Rs. 2,00,000/- and one sound and solvent surety in the sum of Rs. 1,00,000/-. However, the court waived the requirement of the petitioner's brother furnishing surety bond.
Essentially, the petitioner was granted parole of 7 days under Rule 18 of the Rajasthan Prisoners Release on Parole Rules, 1958 on 29.09.2021 with the requirement of furnishing a personal bond in the sum of Rs.2,00,000/- and two sureties in the sum of Rs.1,00,000/- each (out of which one was to be of the petitioner's brother Sharwarmal).
The petitioner had moved the High Court with an assertion that he may be released on furnishing personal bond only as he is a poor man belonging to the B.P.L. family.
Case Title: Sarvjeet Kaur v. State of Rajasthan & Anr.
Citation: 2022 LiveLaw (Raj) 186
While hearing a matter pertaining to maintenance, the Rajasthan High Court observed that the husband, who is a welder, is almost like a skilled workman, and thus, it cannot be presumed that he is not earning sufficiently to maintain the petitioner-wife. The court also opined that even if the petitioner-wife is stitching clothes domestically and has some income source, then also the husband is liable to pay maintenance to the wife along with her two children.
Dr. Justice Pushpendra Singh Bhati, while allowing the criminal revision petition, observed, "This Court, after hearing the submissions and analyzing the record of the case, is of the firm opinion that even if the petitioner-wife is stitching clothes domestically then also she is entitled to get the maintenance. The respondent No.2-husband is a welder, which is almost like a skilled workman, and thus, it cannot be presumed that he is not earning sufficiently to maintain the petitioner-wife, even if the petitioner-wife has some income source, then also there are three family members whom the respondent No.2-husband is liable to maintain. In the given circumstances, it is a fit case for grant of maintenance to the petitioner-wife."
Case Title: Richa Dharu v. Hemant Panwar
Citation: 2022 LiveLaw (Raj) 187
The Rajasthan High Court has observed that a lady suffering from cruelty on account of her husband's conduct cannot be said to have deserted him or to be voluntarily residing away. The court added that the circumstances created by the husband, if not conducive, are bound to push away the wife.
Essentially, the case of the petitioner-wife is that respondent-husband is working on the post of Branch Manager in Bank of Baroda and is earning income of Rs.90,000/- per month. She submitted that the trial court has denied the monthly maintenance to her only on the ground that the divorce has been allowed between the parties. As per her, the divorce was ex-parte claimed by the respondent.
Case Title: X v. Y
Citation: 2022 LiveLaw (Raj) 188
The Rajasthan High Court has observed that in the present times, when the education itself is very costly and the daily life requires a respectable amount, the denial of maintenance to the wife and the daughter cannot be justified. The petitioner was thus directed to pay Rs. 15,000 per month maintenance to them.
The Petitioner had filed the present criminal review petition under Section 19(4) of the Family Courts Act, 1984 read with Sections 397 and 401 CrPC against the Family Court's order against an order which allowed the wife's application under Section 125 CrPC for maintenance.
Case Title: Smt Kamla v. Hindustan Petroleum Corp. Ltd & Ors.
Citation: 2022 LiveLaw (Raj) 189
The Rajasthan High Court has observed that the condition imposed by the Income Tax Act that a person residing in India for a continuous period of 180 days would be considered to be a resident of India, is for the purpose of bringing such person within the purview of the Income Tax Act. The court added that the definition is simply designed for the purpose of including the persons who are in India for a period of 180 days to bring in the tax net and not for the purpose of determining the citizenship or for deciding the permanent resident status of such person.
Justice Sandeep Mehta and Justice Vinod Kumar Bharwani, while dismissing an appeal, observed, "We are prima facie of the view that there is no reason to accept the assertion of the appellant that the respondent was not a resident of India by applying the provisions of the Foreign Exchange Management Act, 1999 and the Income Tax Act, 1961 because, both the acts have a different object and purposes. The condition imposed by the Income Tax Act that a person residing in India for a continuous period of 180 days would be considered to be a resident of India, is for the purpose of bringing such person in the purview of the Income Tax Act. The definition is simply designed for the purpose of including the persons who are in India for a period of 180 days to bring in the tax net and not for the purpose of determining the citizenship or for deciding the permanent resident status of such person."
Case Title: Bajaj Allianz General Insurance Company Limited & Anr. .v. Sharda
Citation: 2022 LiveLaw (Raj) 190
The Rajasthan High Court has observed that remarrying of the deceased's wife does not disentitle her from claiming compensation for death of her husband under Employees' Compensation Act, 1923. The court added that the amount of compensation awarded by the trial court looking at the young age of the deceased and number of claimants cannot be said to be unreasonable.
Justice Rameshwar Vyas, while dismissing the first appeal preferred by the Insurance Company observed, "Contention with regard to remarrying of the deceased's wife is concerned, the same does not disentitle her from claiming compensation for death of her husband. The amount of compensation awarded by the learned trial court looking to the young age of the deceased and number of claimants cannot be said to be unreasonable. There is no merit in this appeal."
Case Title: Manisha Vishnoi v. State of Rajasthan & Ors.
Citation: 2022 LiveLaw (Raj) 191
The Rajasthan High Court has directed a woman, who was married off while a minor and now wishes to part her ways, to file a representation before the Superintendent of Police, Jodhpur (Rural) for appropriate security.
Notably, the woman has approached the court with the grievance that her parents are pressuring her to live with the person with whom her marriage was solemnised while she was a child. She argued that such marriage was illegal, as she was not of marriageable age at the relevant time. Moreover, the woman informed the court that though she wants to pursue her studies, her family members would get her arrested or forcefully take her to her village and restrict her movement due to which she would be unable to complete her studies.
Justice Dinesh Mehta, observed, "Having regard to the apprehension expressed by the petitioner that her parents and family members will intrude in her life and liberty, instant petition is being disposed of with a direction to the petitioner to file a representation before the Superintendent of Police, Jodhpur (Rural) for appropriate security so as to enable her to take up her examinations at Jaipur which are going to be scheduled from 11.06.2022 to 06.07.2022."
Case Title: Bhavin Tanwar v. State of Rajasthan & Anr.
Citation: 2022 LiveLaw (Raj) 192
The Rajasthan High Court has observed that the courts should not rush to issue standing warrants and initiate proceedings under Sections 82 and 83 of the Code, unless they are satisfied that the accused is intentionally evading or circumventing the warrants in order to avoid the prosecution.
Under Code of Criminal Procedure, Section 82 deals with the proclamation for person absconding, while section 83 talks about attachment of property of person absconding.
Justice Dinesh Mehta, while allowing the petition and setting aside the trial court's order, observed, "In the opinion of this Court, endeavor of a Court should be to ensure proper compliance of the statutory provisions and service of the summons as mandated by law. Service of summons is a bed-rock of principles of natural justice. The Courts should not rush to issue standing warrant and initiating proceedings under Sections 82 and 83 of the Code, unless they are satisfied that the accused is intentionally evading or circumventing the warrants in order to avoid the prosecution."
Case Title: Bheru Lal v. State Of Rajasthan
Citation: 2022 LiveLaw (Raj) 193
The Rajasthan High Court has observed that pendency or not pendency of a revision petition is not a ground for a party to avert cross-examination before the trial court.
The clarification was made by Dr. Justice Pushpendra Singh Bhati in the plea moved by one Bheru Lal in connection with a case under Income Tax Act, stating that his right to cross examination was closed. He sought one more opportunity for cross-examination on cost.
The respondent's counsel vehemently opposed the petition on the ground that number of opportunities were given to the petitioner to make the necessary cross-examination but he has failed to do and has been making excuses before the trial court regarding the pendency of the revision petition and thus the delaying in whole proceeding.
However, the court, in the interest of justice, granted one last opportunity to the petitioner to complete the necessary cross-examination on the next date already fixed by the trial court.
Case Title: Chitrank Sharma v. State of Rajasthan through Public Prosecutor & Ors.
Citation: 2022 LiveLaw (Raj) 194
The Rajasthan High Court has granted protection to a lawyer and his family members, whose house was pelted with stones, allegedly at the instructions of person confined in jail.
The court has directed the police authorities to extend necessary protection by deploying police personnel at petitioner-lawyer's house and also instruct PCR to have regular visits so that petitioner and his family members may be protected.
Essentially, the case of the petitioner-lawyer is that on the midnight of 14.06.2022, a few persons came in white Renault Tribber Car and threw stones at his house, due to which glass of his car and window at first floor of his house were damaged. The incident was recorded in a CCTV Camera installed at the house of the petitioner-lawyer. Further, the petitioner received a threat call on his Mobile from a person named Mridul. The person claimed himself to be confined in Barrack No.6 of jail and gave a threat of killing the petitioner and disclosed that the incident in the night of 14.06.2022 was committed on his instructions.
Case Title: Bhan Singh v. State Of Rajasthan & Ors.
Citation: 2022 LiveLaw (Raj) 195
The Rajasthan High Court has observed that any interference in rejection of grant of fresh application / renewal of license for firearms is not warranted except when extraordinary circumstances are pointed out by the party. In this regard, the court pursued Section 17 of the Arms Act, 1959 which talks about variation, suspension and revocation of licences. The present petitioner had raised grievance regarding the arms license.
The court directed the petitioner to file a fresh representation within a period of 15 days and asked the respective District Magistrate to consider the representation afresh by passing speaking orders, while keeping in mind the existing policy of the State.
Justice Vijay Bishnoi, observed, "This Court is of the opinion that any interference in rejection of grant of fresh application/ refusal/ renewal of license for firearms is not warranted except when extraordinary circumstances are pointed out. Looking into the submission made by learned counsel for the parties that it would be suffice if their rights are redetermined by the respondents, while keeping into consideration the judgment rendered in Khem Singh (supra), the same is accepted."
Case Title: Victim v. State of Rajasthan & Ors.
Citation: 2022 LiveLaw (Raj) 196
Case No.: CRLMP/ 4448/ 2022
The Rajasthan High Court has allowed a rape survivor to medically terminate 18 weeks pregnancy, stating that the anguish caused by an unwarranted pregnancy arising out of rape may be presumed to constitute a grave injury to the mental health of the victim.
Notably, the petitioner-victim had also lodged an FIR at Police Station Kaman, Bharatpur for offences punishable under Sections 323, 341 and 376D of the Indian Penal Code. The present petition was filed seeking directions to terminate her unwarranted pregnancy as she no longer intends to continue with the same.
On 31.05.2022, a coordinate bench of the court had directed the Superintendent of Police, Bharatpur to ensure that the victim girl be medically examined by the Medical Board comprising of expert doctors of the field to opine about the status of the pregnancy of the petitioner as well as whether termination of pregnancy of the petitioner is feasible or not.
A vacation bench of Justice Sudesh Bansal, while allowing the petition, observed, "The Chief Medical & Health Officer, Bharatpur is directed to constitute a team of Gynaecologist, who after obtaining the consent of the victim in writing and looking to the advanced stage and the physician health of the victim girl, to get the pregnancy terminated at the earliest, if medically possible."
Other Important Updates
1. Centre Notifies Appointment of Justice SS Shinde As Chief Justice of Rajasthan High Court
The Central Government has notified the appointment of Justice Shinde Shambhaji Shivaji as the Chief Justice of the Rajasthan High Court. He is presently serving as the Judge of Bombay High Court.
He has less than two months of tenure left as a High Court judge.
Justice Shinde was recently recommended by the Supreme Court collegium for elevation as a Chief Justice.
Justice Shinde has presided over various high-profile cases in the recent past including the abetment to suicide case against Republic TV editor-in-chief Arnab Goswami, Bhima Koregaon-Elgar Parishad case, cases against former Maharashtra Home Minister Anil Deshmukh and actress Kangana Ranaut.
Telangana High Court
Case Title: M/s BPR Infrastructure Limited versus M/s. RITES Ltd. and Anr.
Citation : 2022 LiveLaw (Tel) 48
The Telangana High Court has ruled that the issue whether a no claim certificate furnished by a party to its employer was under compulsion or duress, or whether the said no claim certificate is valid, which would discharge the contract and debar the party from raising further claims, is an arbitrable dispute.
The Single Bench of Justice Ujjal Bhuyan held that in view of the decision of the Supreme Court in the case of Bharat Sanchar Nigam Limited versus M/s. Nortel Networks India Pvt. Limited (2021), the Court is only required to examine whether an arbitration agreement exists between the parties. The Court ruled that since the claim made by the party was not a deadwood, the dispute could be referred to arbitration.
Case Title: Telangana State Tourism Development Corporation Limited versus M/s. A.A. Avocations Pvt. Ltd.
Citation : 2022 LiveLaw (Tel) 49
The Telangana High Court has ruled that if a dispute constitutes a 'commercial dispute' under Section 2 (1) (c) (vii) of the Commercial Courts Act, 2015, and the dispute is the subject matter of a domestic arbitration whose 'Specified Value' is more than Rs. One Crore, then an application under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act) would lie only before the Commercial Court and not before the Civil Court.
Case Title: M/s. India Media Services Private Limited versus M/s. SBPL Infrastructure Limited
Citation : 2022 LiveLaw (Tel) 50
TheTelangana High Court has reiterated that in view of Section 42 of the Arbitration and Conciliation Act, 1996 (A&C Act), only the Court where an application under Section 9 and/or Section 34 has been filed would have the jurisdiction to entertain an application for enforcement of the arbitral award.
The Bench, consisting of Justices P. Naveen Rao and Sambasivarao Naidu, held that Section 42 of the A&C Act opens with a non-obstante clause and, therefore, even though an arbitral award is treated as a 'decree in fiction' by a Civil Court, Section 42 of the A&C Act would cover within its ambit all provisions dealing with execution of an award.
