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All High Courts Weekly Round-Up: May 23 - May 29, 2022
Aaratrika Bhaumik
1 Jun 2022 6:00 PM IST
Allahabad High Court NOMINAL INDEX Ram Chandra v. State 2022 LiveLaw (AB) 255 Jyoti Sikka v. State Of U.P. Thru.Legal Remembrancer Dept. Of Law And Justice Lucknow 2022 LiveLaw (AB) 256 Nawab v. State of UP 2022 LiveLaw (AB) 257 Chhunna v. State of U.P 2022 LiveLaw (AB) 258 Siddharth Varadarajan And Another v. State Of U.P. And 2 Others 2022 LiveLaw (AB) 259 Mahendra...
Allahabad High Court
NOMINAL INDEX
Ram Chandra v. State 2022 LiveLaw (AB) 255
Jyoti Sikka v. State Of U.P. Thru.Legal Remembrancer Dept. Of Law And Justice Lucknow 2022 LiveLaw (AB) 256
Nawab v. State of UP 2022 LiveLaw (AB) 257
Chhunna v. State of U.P 2022 LiveLaw (AB) 258
Siddharth Varadarajan And Another v. State Of U.P. And 2 Others 2022 LiveLaw (AB) 259
Mahendra Singh v. State of UP 2022 LiveLaw (AB) 260
Rajkaran Patel v. State of U.P. 2022 LiveLaw (AB) 261
Ram Khelawan And Another v. State of U.P 2022 LiveLaw (AB) 262
Asset Reconstruction Company India Ltd. v. State Of U.P. And 4 Others 2022 LiveLaw (AB) 263
Anuj Kumar @ Sanjay And Others v. State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Others 2022 LiveLaw (AB) 264
Rahul v. State of U.P. 2022 LiveLaw (AB) 265
Babu Khan v. State Of U.P.And Another 2022 LiveLaw (AB) 266
Anamika Srivastava v. Anoop Srivastava 2022 LiveLaw (AB) 267
Judgments/Orders/Reports
Case title - Ram Chandra v. State [CRIMINAL APPEAL No. - 1862 of 1989]
Case Citation: 2022 LiveLaw (AB) 255
In a significant order, the High Court has directed the Sessions Courts throughout the state to make an endeavor to complete the examination of the private witnesses, both chief, and cross, on the same day, as far as possible.
The Bench of Justice Vikas Kunvar Srivastav and Justice Sunita Agarwal further directed the trial judges in the state to take up the examination of the private witnesses first, before proceeding with that of the official witnesses. "This approach is needed to ensure fair and proper trial which is the duty of the trial Court and also to curb the menace where the private witnesses turned hostile for obvious reasons because of long adjournments, permitting an act of maneuvering," the Court added as it referred to the Apex Court's recent ruling in the case of Rajesh Yadav vs State of UP 2022 LiveLaw (SC) 137.
Case title - Jyoti Sikka v. State Of U.P. Thru.Legal Remembrancer Dept. Of Law And Justice Lucknow [SPECIAL APPEAL DEFECTIVE No. - 23 of 2022]
Case Citation: 2022 LiveLaw (AB) 256
Hearing an appeal filed by Former Additional Advocate General, Uttar Pradesh Jyoti Sikka challenging an order of the Single Judge containing adverse remarks made against her, the High Court has asked her to approach "that very judge" who passed the order to seek redressal of her grievance. The Bench of Justice Devendra Kumar Upadhyaya and Justice Subhash Vidyarthi further requested the single judge to decide the application, if filed, expeditiously.
Case title - Nawab v. State of UP
Case Citation: 2022 LiveLaw (AB) 257
While granting bail to an accused in connection with a criminal case over an altercation between political rivals that suddenly escalated into a violent brawl, the High Court observed that someone's hate did consume Mahatama Gandhi's body, but not his love for humanity. "Seekers of different paths would do well to remember the Father of the Nation. The Mahatma by the example of his life and the fact of his death, reminds us that the quest of 4 all religions and the essence of an Indian's Dharma is love for fellow beings. Someone's hate consumed his body, but not his love for humanity. A bullet stilled his mortal frame but could not silence the truth in him," the Court observed.
Case title - Chhunna v. State of U.P [CRIMINAL APPEAL No. - 558 of 1996]
Case Citation: 2022 LiveLaw (AB) 258
The High Court observed that a close relative who is a natural witness, cannot be recorded as an interested witness. With this, the Court upheld the life sentence awarded to a murder convict by District and Sessions Judge, Kanpur Dehat in 1996.
Explaining the term 'interested witness', the bench of Justice Sunita Agarwal and Justice Om Prakash Tripathi observed that an 'interested witness' must have some direct interest in seeing that the accused person is somehow or the other convicted either because of some animus with the accused for some other reason.
Case title - Siddharth Varadarajan And Another v. State Of U.P. And 2 Others
Case Citation: 2022 LiveLaw (AB) 259
The High Court quashed the FIR registered against The Wire's founding editor Siddharth Varadarajan and reporter Ismat Ara in Rampur over a report on the death of a protester in New Delhi during the farmers protest on Republic Day 2021.
The FIR was lodged under IPC sections 153B (imputations, assertions prejudicial to national integration) and 505(2) (statements creating or promoting enmity between classes) for tweets of the report on Navreet Singh Dibdibiya (farm law protestor who died during the protest in Delhi) and alleging that they misled the public.
Case title - Mahendra Singh v. State of UP [CRIMINAL MISC. BAIL APPLICATION No. - 3056 of 2022]
Case Citation - 2022 LiveLaw (AB) 260
The High Court denied bail to a man who has been accused of raping his 11-year-old daughter. The Court noted that the victim had supported the prosecution version in her statement recorded under Section 164 CrPC. Calling the facts of the case 'shocking', the Bench of Justice Saurabh Shyam Shamshery observed thus:
"The facts of the case are not only shocking but are inhuman also. Applicant who is father of the victim has committed the offence of rape with her daughter aged about 11 years and she has supported the prosecution case in her statement recorded under Sections 161 and 164 CrPC."
Allahabad High Court Denies Bail To HC Advocate Accused Of Raping Law Student
Case title - Rajkaran Patel v. State of U.P. [CRIMINAL MISC. BAIL APPLICATION No. - 48511 of 2021]
Case Citation: 2022 LiveLaw (AB) 261
The High Court denied bail to an HC advocate, who has been accused of sexually and physically assaulting a Law Student for a substantial long period. Taking into account the allegations against Advocate-Accused Rajkaran Patel, the Bench of Justice Samit Gopal observed thus: "The prosecutrix was junior in the office of the applicant. The allegations are against a person practising law and is a person in uniform involved in a noble profession. The office of a lawyer is not less respected than Courts of law."
Case title - Ram Khelawan And Another v. State of U.P [CRIMINAL APPEAL No. - 674 of 1982]
Case Citation: 2022 LiveLaw (AB) 262
The High Court upheld the life sentence of two accused in connection with a murder case that dates back to the year 1980. The Court, however, directed the state government to consider their case for remission. The Bench of Justice Dinesh Kumar Singh and Justice Attau Rahman Masoodi asked the state government to take into account their advanced age and their conduct in jail etc while considering their case for remission.
Case title - Asset Reconstruction Company India Ltd. v. State Of U.P. And 4 Others [WRIT - C No. - 6529 of 2022]
Citation: 2022 LiveLaw (AB) 263
The High Court has directed the Chief Secretary of the State of Uttar Pradesh to issue clear directions to all the concerned authorities in the State of Uttar Pradesh to strictly comply with the provisions of Section 14 of the SARFAESI Act, 2002.
According to Section 14 of the SARFAESI Act, the banks/financial institutions and reconstruction companies have the right to take possession of the secured asset and it is the responsibility of the concerned District Magistrate/Chief Metropolitan Magistrate to hand over the possession of such secured asset to the financial institutions with the help of the police.
Case title - Anuj Kumar @ Sanjay And Others v. State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Others [APPLICATION U/S 482 No. - 2763 of 2022]
Case Citation: 2022 LiveLaw (AB) 264
The High Court has observed that an Application U/s 482 Cr.P.C. can't be filed against a summoning order passed by a Special Judge in an SC/ST Act Offence. The Court observed thus while taking into account Section 14A(1) of the S.C./S.T. Act.
In the instant matter before the Court, an application under 482 CrPC was moved praying to quash the summoning order passed by II Additional Sessions Judge/ Special Judge, S.C./S.T. Act, Lakhimpur Kheri against the applicant for offences u/s 323/504/506 I.P.C. & 3(1) of the SC/ST Act
Case title - Rahul v. State of U.P.
Case Citation: 2022 LiveLaw (AB) 265
The High Court denied anticipatory bail to a man who has been accused of, inter alia, committing unnatural sex with his wife without her consent. The Bench of Justice Saurabh Shyam Shamshery denied pre-arrest bail to one Rahul noting that there are serious allegations against him of assaulting his wife, committing cruelty upon her wife with regard to demand of dowry, committing unnatural sex with her wife without her consent.
Case title - Babu Khan v. State Of U.P.And Another [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3285 of 2022]
Case citation: 2022 LiveLaw (AB) 266
The High Court granted anticipatory bail to a man accused of raping his daughter-in-law as the Court noted that it is quite unnatural that a father-in-law shall commit rape of his own daughter-in-law along with some other person in our Indian culture.
"...considering that it is quite unnatural that a father-in-law shall commit rape of his own daughter-in-law along with some other person in our Indian culture, considering that the accusation has been made falsely with the object of injuring or humiliating his reputation in the society," the bench of Justice Ajit Singh observed as it extended the benefit of anticipatory bail to accused-Babu Khan (father-in-law of the victim).
Case title - Anamika Srivastava v. Anoop Srivastava [FIRST APPEAL No. - 30 of 2022]
Case Citation: 2022 LiveLaw (AB) 267
The High Court (Lucknow Bench) has observed that the Court is not supposed to act in a mechanical manner, and force the parties to engage in mediation where the marriage has irretrievably broken down.
The Bench of Justice Rakesh Srivastava and Justice Ajai Kumar Srivastava-I further stressed that reference of the parties to mediation is not compulsorily required where the facts and circumstances of the case showcase that no purpose would be served out of such reference.
Updates from the High Court
Case title - State Of U.P. Thru. Prin. Secy. Home, Lko. v. Sharad Kumar Gupta [CONTEMPT APPLICATION (CRIMINAL) No. - 6 of 2022]
The Allahabad High Court has issued a contempt notice to an advocate who used ugly and harsh words in the court of the Presiding Officer/ District Judge, Motor Accident Claims Tribunal, Hardoi, in December 2021. The Bench of Justice Arvind Kumar Mishra-I and Justice Manish Mathur found that prima facie, the act of the advocate (Sharad Kumar Gupta) scandalizes or tends to scandalize and lower the authority of the Court.
The Allahabad High Court's May 12 order directing a local court in Mathura to decide two applications pending before it, filed in connection with the Sri Krishna Janambhumi Dispute, within 4 months, has been submitted before the Mathura Court yesterday.
The order has been submitted by Manish Yadav, one of the plaintiffs who has moved a suit before the Mathura Court seeking to shift Shahi Idgah Mosque, claiming that it is built at the birthplace of the deity, within the 13.37-acre premises of the Katra Keshav Dev temple.
Case title - Premraj Pratap Singh v. Alka Singh @ Meenu
In a significant observation, the High Court has said that no Court ought to take notice of a strike or a probable strike by the Advocates. The Bench of Justice J. J. Munir observed thus as it sought an explanation of the Principal Judge, Family Court, Hathras who had adjourned the hearing in a divorce case acknowledging a probable strike by Advocates.
The Bench also observed that the adjournment by the Principal Judge prima facie amounted to misconduct.
Case title - Devendra Pandey and others v. State Of U.P. Thru. C.B.I. and connected appeals
In a significant order, the High Court (Lucknow bench) last week denied bail to 34 Cops, Constables in Pradeshik Armed Constabulary (PAC) who have been accused of killing 10 Sikh men in an alleged fake encounter in the year 1991 treating them as terrorists. The Bench of Justice Ramesh Sinha and Justice Brij Raj Singh observed that the accused cops had indulged in a barbaric and inhuman killing of innocent persons by calling them, terrorists.
"Moreso, if some of the deceased were involved in anti-social activities and criminal cases were registered against them, then too procedure established by law should have been adhered to, to bring them to task and not indulging in such a barbaric and inhuman killing of the innocent persons in the name of terrorists by the appellants," the Court stressed as it listed the criminal appeal of accsued filed challenging their conviction for final hearing on July 25, 2022.
Case title - Sandeep v. State of U.P. [CRIMINAL APPEAL No. - 4140 of 2007]
The High Court granted bail to a Murder accused who has been in jail for over 15 years and despite the fact that his second bail plea was filed in the year 2014, the same could not be heard by the HC due to the non-cooperation/non-appearance of his counsels.
The Bench of Justice Sunita Agarwal and Justice Sadhna Rani (Thakur) granted bail to appellant-accused Sandeep in view of the Apex Court's ruling in the case of Saudan Singh Vs. State of Uttar Pradesh (Crl.Appeal No.308/ 2022) and Suleman v State of Uttar Pradesh| Criminal Appeal No.491/2022.
Bombay High Court
Case Title : Harish Chandra Damodar vs UOI
Citation : 2022 LiveLaw (Bom) 194
A person holding a season ticket is a bonafide "passenger," for the purpose of claiming compensation under the Railway Act 1989 even in the absence of an identity card, the Bombay High Court has held. The Court said that the Ministry's instructions to consider a passenger who failed to produce an ID card along with his season ticket a ticketless traveller, were not mandatory. Justice Sandeep K Shinde thus set aside an order of the Railways Claims Tribunal dated 17th March, 2009, and directed the Railway Claims Tribunal to grant the appellant, who fell of the train 18 years ago, Rs. 3 lakh compensation after verifying medical evidence.
Calcutta High Court
Nominal Index
Assistant Commissioner v. Ashok Sureka 2022 LiveLaw (Cal) 201
Piyarul Sk v. The State of West Bengal 2022 LiveLaw (Cal) 202
The Chairperson, West Bengal Commission for Protection of Child Rights v. Election Commission of India & Others 2022 LiveLaw (Cal) 203
Md. Firoz Ala @ Firoj Alam v. State of West Bengal 2022 LiveLaw (Cal) 204
Asansol Mini Bus Association and others v. Union of India and others 2022 LiveLaw (Cal) 205
SREI Equipment Finance Limited versus Additional/Joint/Deputy/Assistant Commissioner of Income Tax and Ors 2022 LiveLaw (Cal) 206
Shri Sadhan Roy v. Arvind Kumar Singh 2022 LiveLaw (Cal) 207
Mritunjay Singh v. Union of India & Ors 2022 LiveLaw (Cal) 208
M/s One Textile v. Umesh Bharech 2022 LiveLaw (Cal) 209
The State of West Bengal & Ors v. Gandhi Memorial Girls' High School & Ors 2022 LiveLaw (Cal) 210
Ajet Ali Baidya v. State of West Bengal 2022 LiveLaw (Cal) 211
Shukla Mondal @ Sumi v. State of W.B. & another 2022 LiveLaw (Cal) 212
Raju Mitra & Ors v. State of West Bengal 2022 LiveLaw (Cal) 213
NBCC (India) Ltd. v. The State of West Bengal and Ors. A.P.O No. 11 of 2022 2022 LiveLaw (Cal) 214
Kashinath Dey @ Kashi v. The State of West Bengal 2022 LiveLaw (Cal) 215
Orders/Judgments
Case Title: Assistant Commissioner v. Ashok Sureka
Citation: 2022 LiveLaw (Cal) 201
The Calcutta High Court bench of Justice T.S. Shivagnanam and Justice Hirnmay Bhattacharyya has held that the GST department cannot detain vehicles in the absence of a second e-way bill as the first e-way bill was valid in the interception period. The respondent/assessee submitted that the detention of the vehicle along with the goods and the demand for tax and penalty were not justified. The e-way bill, which was being carried in the vehicle transporting the goods, expired at midnight on September 8, 2019 and the goods were transported on September 9, 2019. The vehicle was intercepted at 1.30 p.m. (noon). The court held that the bona fides of the writ petitioner had to be tested on the documents, which were available on record. "The first e-way bill dated September 7th, 2019 was valid up to September 9th, 2019. Therefore, in the absence of the second e-way bill, the tax authorities at Durgapur could not have intercepted or detained the vehicle. Therefore, the explanation offered by the respondent/writ petitioner was an acceptable explanation and a case cannot be made out that there was a deliberate and willful attempt on the part of the respondent/writ petitioner to evade payment of tax so as to justify invocation of the power under Section 129 of the Act," the court while granting the relief to the assessee observed.
Case Title: Piyarul Sk v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 202
The Calcutta High Court has recently set aside an order of conviction for the offence of murder under Section 302 of the IPC against the husband of the victim on the ground that the child witness being of extremely tender age when the incident occurred was unable to comprehend the circumstances and was also prone to tutoring. In the instant case, the deceased had suffered burn injuries at her matrimonial home and had subsequently passed away in the hospital she had been admitted to. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi noted from the record that the concerned trial court had relied heavily on the deposition of the child witness who had been summoned by the Court under section 311 CrPC to record a finding against the appellant that is the husband of the victim. Underscoring the need for the evidence of a child witness to be examined with utmost care, the Court observed, "When the prosecution primarily rests on the evidence of a child witness, it is the duty of the Court to examine the evidence of the said witness with utmost care and circumspection. A child of tender years is prone to prompting and tutoring. Hence, an onerous duty is cast on the Court to examine the deposition of a child witness not only on his capacity and ability to understand circumstances but also on the possibility of the witness being tutored by persons who have control and custody over him."
Case Title: The Chairperson, West Bengal Commission for Protection of Child Rights v. Election Commission of India & Others.
Case Citation: 2022 LiveLaw (Cal) 203
The Calcutta High Court on Friday dismissed a Public Interest Litigation (PIL) petition filed by the Chairperson of the West Bengal Commission for Protection of Child Rights (WBCPCR) seeking a direction upon the Election Commission of India (ECI) to compensate each of the families of the children who have lost their lives due to Covid-19 following the announcement of the general elections in the State on February 26, 2021. A Division Bench comprising Justice Harish Tandon and Justice Soumen Sen dismissed the petition for being 'premature' after noting that the State Commission had not utilised its powers under Section 15 of the Protection of Child Rights Act, 2005 (Act) to conduct an enquiry and ascertain if the cause of death is due to any negligent conduct of the election commission. "In the instant case admittedly, there is no inquiry initiated by the State Commission in terms of Section 15 of the said Act. We could not find any plausible explanation from the writ petitioner for not exercising the said power. When a State Commission is empowered to carry on such investigation and inquiry and ascertain the cause of death it is expected that such enquiry should be conducted first before approaching a constitutional court with such findings and implementations of its recommendations if Government concerned failed to implement such recommendations. Death of any person including a child is unfortunate and undesirable whatever the reasons may be for the cause of such death. A child is a precious asset. It is only expected that if there is any violation of a child's right the Commission would without delay invoke the provisions of the Act and take such measures and steps as they are expected to take under the said Act", the Court underscored.
Case Title: Md. Firoz Ala @ Firoj Alam v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 204
The Calcutta High Court has recently held that the abscondence of an accused by itself does not establish his guilt and accordingly proceeded to set aside an order of conviction for the commission of the offence of murder under Section 302 of the IPC. A Bench comprising Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay was adjudicating upon an appeal preferred against an order of conviction passed against the appellant for murdering a 10 year old boy. It was alleged that the appellant had illicit relationship with Rasida, mother of the boy. It was further contended that the child had disclosed the illicit relationship to his father and accordingly appellant nursed a grudge against him. The Court relied upon the Supreme Court judgment in Sk. Yusuf v. State of West Bengal to rule that it is a settled law that the abscondence of an accused by itself does not establish his guilt. "The aforesaid proposition of law wholly applies to the facts of the present case. Evidence on record shows apart from vague suspicion owing to a hunch that the appellant may have nursed grudge against the child for divulging his illicit association with her mother, no evidence was led to show that the appellant had clear access to the child soon before his death so as to complete the chain of circumstances pointing to his guilt", the Court observed.
5. Motivated To Earn Profit: Calcutta HC Dismisses Bus Operators' Plea Seeking Right To Determine Fares
Case Title: Asansol Mini Bus Association and others v. Union of India and others
Case Citation: 2022 LiveLaw (Cal) 205
The Calcutta High Court has recently dismissed a plea moved by Bus and Minibus Operators' Associations seeking the operators' right in the matter of determination of fares in a manner proportionate to hike of the market price of fuel on the ground that such fixation of fares lies squarely within the authority of the executive. The plea filed contended that the provisions of Section 67 of the Motor Vehicles Act, 1988 (Act) ought to be read down to give a handle to the bus operators to have a say in the fixation of fare structures. Justice Sabyasachi Bhattacharyya observed that the privilege sought by the petitioners for the operators of motor vehicles in having a say in the fixation of fare structure has to be balanced with the convenience of the huge number of passengers and consignors who use the road transport network regularly for travelling and transporting goods. Opining that judicial interference is not warranted in such cases, the Court underscored, "..the domain of fixation of taxes in public transport is squarely within the authority of the executive and pertains to policy decisions of the Governments, both at the State and the Central level. Judicial interference, under normal circumstances, is not warranted, unless the very Constitutionality of the statutes are hit and/or the statues-in-question are in direct contravention of public policy or the like."
Case Title: SREI Equipment Finance Limited versus Additional/Joint/Deputy/Assistant Commissioner of Income Tax and Ors
Case Citation: 2022 LiveLaw (Cal) 206
The Calcutta High Court has ruled that personal hearing conducted by way of exchange of chat messages cannot be said to be an effective opportunity of personal hearing to the assessee and that it does not satisfy the test of fairness or the principles of fair play. The Bench, consisting of Justices T.S. Sivagnanam and Hiranmay Bhattacharyya, reiterated that the moment an insolvency petition is admitted, in view of the moratorium that comes into effect under Section 14(1)(a) of the Insolvency and Bankruptcy Code, 2016 (IBC) there can be no institution or continuation of pending proceedings against the corporate debtor. The Court thus set aside the assessment order passed against the assessee and held that the proceedings initiated against the assessee under the Income Tax Act, 1961 should be kept in abeyance till the completion of insolvency resolution proceedings against the assessee.
Case Title: Shri Sadhan Roy v. Arvind Kumar Singh
Case Citation: 2022 LiveLaw (Cal) 207
The Calcutta High Court while enumerating upon the vires of power in plenary jurisdiction observed that although Order 47, Rule 1 of the CPC imposes a restriction upon parties to approach the Court for review of an order only on the grounds mentioned therein, however such a provision does not and cannot curtail the High Court's power to pass orders ex debito justitiae. A Bench comprising Justice Arijit Banerjee and Justice Kausik Chanda underscored that it has been held repeatedly by the Supreme Court that that the High Court is a court of plenary jurisdiction. Opining that the Court's inherent power to rectify a wrong cannot be restricted by legislation, the Court observed, "If the High Court feels that it has passed an erroneous order which has caused injustice to a party, in my opinion, nothing prevents the court from reconsidering the order and correcting the same by removing the error. In my opinion, not only the High Court has such power but also the solemn duty to do so. I am of the view that though O. 47 R. 1 puts a restriction on the parties to approach the court for review of an order only on the grounds mentioned therein, but, that provision does not and cannot curtail the High Court's power to pass orders ex debito justitiae. The High Court's inherent power to rectify an error, whether of fact or of law, cannot be abridged or restricted by legislation."
Case Title: Mritunjay Singh v. Union of India & Ors.
Case Citation: 2022 LiveLaw (Cal) 208
The Calcutta High Court has recently stayed a Lookout Circular (LOC) issued against a Captain in Merchant Shipping, who is also a Director in a company against which criminal proceedings were initiated by the Central Bureau of Investigation (CBI) for default in payment of loan. The Court opined that such an action would curtail his right to travel abroad for livelihood. A Bench comprising Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon an appeal preferred against a Single Judge order wherein it had been held that diluting the LOC would seriously hamper and prejudice not only the pending proceedings instituted by the CBI but also the recovery process of the Bank. Setting aside the impugned order of the Single Judge and imposing a stay on the LOC, the Court observed, "This Court is of the view that the Lookout circular issued against the appellant/writ petitioner would interfere with the departure from and arrival at the airports across India, leading to curtailing the appellant's right to travel abroad for livelihood. However, as held in Chandran Ratnaswami v. K.C. Palanisamy & Ors 2013 (6) SCC 740 the appellant is directed to file an affidavit of undertaking before this Court."
Case Title: M/s One Textile v. Umesh Bharech
Case Citation: 2022 LiveLaw (Cal) 209
The Calcutta High Court has recently set aside an order acquitting an accused under Section 256 of the CrPC for a complaint registered under Section 138 of the Negotiable Instrument Act by observing that a Magistrate cannot pass such an order merely due to the non-appearance of the complainant without forming a judicial opinion. Section 256 mandates that if the complainant does not remain present on the appointed day after the summons has been issued on the complaint and unless attendance of complainant has been dispensed with, the Magistrate shall acquit the accused. The provision further stated that if the Magistrate feels that the order of acquittal should not be passed on that date, the Magistrate has to give reasons. Justice Bibek Chaudhuri observed, "..acquittal of the accused on the absence of the complainant under Section 256(1) of the Code of Criminal Procedure is not automatic. The court must apply its judicial discretion to the facts and circumstances of the case where it is expedient for the court to acquit the accused under Section 256(1) of the Code." Opining that the impugned order does not contain any judicial discretion, the Court underscored, "The learned Magistrate has also not recorded any finding justifying dismissal of the case. The case was dismissed because the complainant failed to submit any application showing cause of his absence on the previous date. Absence of judicial discretion is apparent on the face of record. Because the learned Magistrate did not assign any reason in support of the requirement that it is not proper to adjourn the hearing of the case to some other date."
Case Title: The State of West Bengal & Ors v. Gandhi Memorial Girls' High School & Ors.
Case Citation: 2022 LiveLaw (Cal) 210
The Calcutta High Court has recently set aside an order vide which a school Headmistress was instructed to vacate her post and also demoted to the post of an assistant teacher by observing that Courts must exercise self-restraint in exercise of plenary powers and not pass an order in disregard to applicable statutory Rules. A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta observed, "The courts have imposed self-restraint in exercise of plenary powers and the judicial review in not overstepping the statutory provisions and passing an order in disregard to the statutory Rules or the Act applicable in this regard. The imposition of penalty in a disciplinary proceeding can only be achieved upon adhering the procedures and the norms set forth in the aforesaid Rules and, therefore, assuming the jurisdiction of the disciplinary authority and perceiving the misconduct in ignorance of the aforesaid procedural provisions cannot with stand of the anvil of the legal jurisprudence." While enumerating upon the scope of powers vested upon a Court in the exercise of plenary jurisdiction, the Court underscored, "What can be discerned from the aforesaid observations from the aforesaid reports that the court does not embark upon the journey on a unchartered ocean of powers in an uninformed perception, what would be right and wrong for the society. The Judges must act on a well informed traditions, the procedure of law and impart justice with the rider that in proceeding on such terrain it should not cause injustice to the other."
Case Title: Ajet Ali Baidya v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 211
The Calcutta High Court has recently observed that since the right to property is a valuable right guaranteed under Section Article 300A of the Constitution of India, merely on the ground of delay the State cannot deny its obligation to provide compensation for land acquisition. A Bench comprising Justice Arijit Banerjee and Justice Kausik Chanda was adjudicating upon an appeal preferred against a decision by a Single Judge bench wherein the writ petition of the appellants had been dismissed. The appellant had prayed for a direction that the concerned land acquisition case stood lapsed and thus sought a direction to be put in possession of their respective plots of land. Taking cognisance of the grievance raised, the Bench observed, "We are, however, of the opinion that there might be some delay on the part of the petitioners in approaching this Court, but since the right to property is a valuable right flowing from Article 300A of the Constitution of India, merely on the ground of delay the State cannot deny its obligation to compensate the petitioners."
Case Title: Shukla Mondal @ Sumi v. State of W.B. & another
Case Citation: 2022 LiveLaw (Cal) 212
The Calcutta High Court has recently come to the aid of a victim of human trafficking by observing that impairing chances of a successful trial cannot be a ground to stall the repatriation of the victim to her own country from protective custody. Justice Jay Sengupta was adjudicating upon an appeal preferred against the decision of a Single judge bench order vid which the victim's application for being repatriated to her native country had been rejected on the ground that it would damage the chances of the trial in the case. Opining that success in a trial cannot be a ground to stall the repatriation of the victim, the Court underscored, "Success in the trial cannot be a ground to stall repatriation of the victim lady to her own country. Afterall, she is a victim in this case and while the accused are at large, the victim is languishing in protective custody." Accordingly, the Court set aside the impugned order and further directed that there should be no impediment in having victim repatriated to her own country. The concerned authorities were ordered to take necessary steps in this regard. Liberty was also granted to the petitioner to return to India upon carrying necessary travel documents and depose in the trial in question.
Case Title: Raju Mitra & Ors v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 213
The Calcutta High Court has recently upheld the conviction of a husband for the commission of the offence of dowry death under Section 304B of the IPC after opining that it is impossible for witnesses such as neighbours to state whether the victim housewife was tortured within the four corners of the matrimonial home or not. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi noted from the evidence on record that marks of injury had been found on the body off the deceased and that in addition to the ligature mark, investigating officers had found swelling on the back of the head and bruise marks on the left palm of the deceased. Acknowledging that it is very unlikely that the deceased would confide in witnesses such as neighbours about the torture that was meted out to her, the Court underscored, "These injuries show victim housewife had been subjected to physical assault immediately prior to her death probabilising the saga of torture as narrated by her relations. When a housewife is tortured within four corners of the matrimonial home, persons to whom she would ordinarily confide are her parents and close relations. It is highly unlikely she would narrate her misfortune to outsiders including neighbours. Analysing the evidence on record from this perspective, I am of the opinion evidence of parents and other relations of the victim girl with regard to torture meted out to her over further demand of money are wholly reliable. Evidence of the defence witnesses appear to be tutored. None of the witnesses were privy to the household affairs of the appellants." Thus, the Court opined that the defence witnesses are untrustworthy and that it is impossible for them to state whether victim housewife was tortured within the four corners of the matrimonial home or not.
Case Title: NBCC (India) Ltd. v. The State of West Bengal and Ors. A.P.O No. 11 of 2022
Case Citation: 2022 LiveLaw (Cal) 214
The Calcutta High Court held that objections regarding the non-applicability of the MSMED Act to works contract can be decided in arbitration by MSME Council. The Division Bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj upheld the order of the Single Bench whereby the petitioner was referred to arbitration before the MSME Council with a direction that his objection regarding the non-applicability of the MSMED Act as the contract was a works contract would be decided by the Arbitral Tribunal. The Court observed that MSMED Act is a special legislation that has an overriding effect, therefore, the parties are bound to follow the mechanism provided under Section 18 of the Act. The Court held that objections regarding the non-applicability of MSMED Act to works contract can be decided in arbitration by MSME Council. The Court held that the Single Judge rightly rejected the objections of the appellant on the grounds that all such objections are to be raised in the arbitration before the MSME Council and the arbitral tribunal shall decide on these before entering into other questions.
Case Title: Kashinath Dey @ Kashi v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 215
The Calcutta High Court has recently modified an order issued by the concerned Magistrate in proceedings initiated under Section 110 of the CrPC by underscoring that onerous conditions cannot be put in proceedings requiring execution of bond for good behaviour. Justice Jay Sengupta was adjudicating upon a plea challenging proceedings under Section 110 of the CrPC wherein vide order dated February 16, 2022 the concerned Executive Magistrate had directed the petitioner to submit show-cause as to why he shall not be bound down for good behaviour bond under Section 110 of CrPC and should furnish an amount of Rs. 1,00,000 each with 'two reputed Gazetted Officers' as sureties for his good behaviour for such period not exceeding three years. Pursuant to the rival submissions, the Court observed, "It is a settled law that such onerous condition cannot be put either in an order granting bail or in a proceeding requiring execution of bond for good behaviour that cannot be fulfilled by the person on whom such direction is passed." Reliance was placed on the Calcutta High Court judgment in Dipu Singh vs. State of West Bengal in this regard. Opining further that the condition imposed by the concerned Executive Magistrate is onerous and thus cannot be sustained, the Court held, "More than that the condition imposed by the learned Executive Magistrate is suffers from lack of clarity. It is not clear what is the meaning by using the term "reputed Gazetted Officer", as if some Gazetted Officers may not be much repute. Therefore, the onerous condition imposed by the learned Executive Magistrate cannot be sustained."
Chhattisgarh High Court
Case Title: Nimish S. Agrawal v. Smt. Ruhi Agrawal
Citation : 2022 LiveLaw (Chh) 49
Granting guardianship of a 9 years old to her mother, the Chhattisgarh High Court has observed that such cases could not be solely decided by interpreting legal provisions. Justice Goutam Bhaduri held that, 'it is a human problem and has to be solved with a human touch. The father filed an appeal seeking custody of his child against a judgment where visitation rights were denied to him. He got married in 2007 and had a child in 2012. However, they entered into a spiral of allegations and court cases for deteriorating relationships with his wife. For the child's custody, an application was filed under Section 25 of the Guardians and Wards Act, 1890. The Court held that it is the ultimate welfare of the child which should be the dominant matter when parents make conflicting demands; both demands are to be justified and cannot be decided on a legalistic basis. It remarked, "The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor." It further held that the word 'welfare' used in Section 13 of the Act must be construed literally and must be taken in its broadest sense - including the moral, ethical and physical welfare.
Delhi High Court
NOMINAL INDEX
Case Title: CIT Versus Microsoft Corporation 2022 LiveLaw (Del) 483
Case Title: Shri Sai Co-operative Thrift and Credit Society Ltd Versus ITO 2022 LiveLaw (Del) 484
Case Title: M/S SRI SHYAM INCORPORATION & ANR. v. M/S SHREE BALAJI INDUSTRIES 2022 LiveLaw (Del) 485
Case Title: INDIAN PROFESSIONAL NURSES THROUGH ITS JOINT SECRETARY SIJU THOMAS v. GOVERNMENT OF NCT OF DELHI & ANR. 2022 LiveLaw (Del) 486
Case Title: ASSOCIATION OF MD PHYSICIANS v. NATIONAL BOARD OF EXAMINATION & ORS. 2022 LiveLaw (Del) 487
Case Title: ABHISHEK GUPTA v. UNION OF INDIA & ORS. 2022 LiveLaw (Del) 488
Case Title: AKRITI AGGARWAL & ANR. v. GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY THROUGH ITS REGISTRAR 2022 LiveLaw (Del) 489
Case Title: AK Builders versus Delhi State Industrial Infrastructure Development Corporation Ltd 2022 LiveLaw (Del) 490
Case Status: M/S Blue Heaven Cosmetics Pvt. Ltd v. Shivani Cosmetics 2022 LiveLaw (Del) 491
Case Title: ASLAM SHER KHAN v. UNION OF INDIA & ORS. 2022 LiveLaw (Del) 492
Case Title: AAA VEHICLEADES PVT LTD v. BALKISHAN GUPTA 2022 LiveLaw (Del) 493
Case Title: PUMA SE v. HI-TEC POINT TECHNOLOGIES P. LTD. AND ORS. 2022 LiveLaw (Del) 494
Case Title: NEETA BHARDWAJ & ORS. v. KAMLESH SHARMA 2022 LiveLaw (Del) 495
Case Title: Sharjeel Imam v. The State of NCT of Delhi 2022 LiveLaw (Del) 496
Case Title: Help India Against Corruption v. Union of India 2022 LiveLaw (Del) 497
Case Title: Ketan Ribbons Pvt Ltd Vs National Faceless Assessment Centre Delhi 2022 LiveLaw (Del) 498
Case Title: M/S Chhavi & Ors v. Union of India 2022 LiveLaw (Del) 499
Case Title: PRAVEEN CHHABRA v. REAL ESTATE APPELLATE TRIBUNAL 2022 LiveLaw (Del) 500
Case Title: SHOLAY MEDIA ENTERTAINMENT AND ANR. v. YOGESH PATEL AND ORS. 2022 LiveLaw (Del) 501
Case Title: A-One Realtors Pvt. Ltd. v. Energy Efficiency Services Ltd. 2022 LiveLaw (Del) 502
Case Title: JAI KUMAR JAIN AND ORS v. STATE GOVT OF NCT OF DELHI AND ORS. 2022 LiveLaw (Del) 503
Case Title: HT MEDIA LIMITED & ANR. v. WWW.HINDUSTANTIMES.TECH & ANR. 2022 LiveLaw (Del) 504
Case Title: UNION OF INDIA, MINISTRY OF RAILWAYS, RAILWAY BOARD & ANR. v. M/S JINDAL RAIL INFRASTRUCTURE LIMITED 2022 LiveLaw (Del) 505
Case Title: Sanjay Roy versus Sandeep Soni & Ors. 2022 LiveLaw (Del) 506
Case Title: Rajinder Kumar Agarwal v. Union of India 2022 LiveLaw (Del) 507
Case Title: Suresh Chand Gupta Versus State of Govt. Of NCT 2022 LiveLaw (Del) 508
Case Title: KRISHAN KAKKAR v. KIRAN CHANDER 2022 LiveLaw (Del) 509
Case Title: SANJAY SINGH v. SUKHPAL KAUR 2022 LiveLaw (Del) 510
Case Title: NIZAMUDDIN KHAN v. THE STATE & ANR. 2022 LiveLaw (Del) 511
Case Title: Amrish Gupta v. Gurchait Singh Chima 2022 LiveLaw (Del) 512
1. Licensing Of Software Products By Microsoft Is Not Taxable In India As Royalty: Delhi High Court
Case Title: CIT Versus Microsoft Corporation
Citation: 2022 LiveLaw (Del) 483
The Delhi High Court bench of Justice Manmohan and Justice Sudhir Kumar Jain has ruled that licensing of software products by Microsoft in the Territory of India by Microsoft is not taxable in India as royalty.
The department had challenged the order passed by the ITAT for the assessment years 1997-98 and 1999-2000. The ITAT ruled that the licencing of software products of Microsoft in the Territory of India by the respondent/assessee, i.e., Microsoft, was not taxable in India as royalty under Section 9(1)(vi) of the Income Tax Act read with Article 12 of the Indo-US Direct Taxation Avoidance Agreement (DTAA).
Case Title: Shri Sai Co-operative Thrift and Credit Society Ltd Versus ITO
Citation: 2022 LiveLaw (Del) 484
The Delhi High Court Bench of Justice Manmohan and Justice Dinesh Kumar Sharma has held that under Section 148A(b) of the Income Tax Act, a minimum time of seven days has to be granted to the assessee to file reply to the show cause notice. The petitioner/assessee has challenged the Notice issued under Section 148A(b) of the Income Tax Act, 1961 and the consequential order issued under Section 148A(d) and notice issued under Section 148 of the Income Tax Act.
The department has issued a notice to petitioner under clause (b) of Section 148A of the Income Tax Act on 22nd March, 2022 on the ground that the petitioner had made cash deposits in its bank accounts but had not filed its Income Tax Return. The Petitioner was asked to furnish a reply to the notice on or before 25th March, 2022. The Petitioner duly replied to the said notice on 25th March, 2022 clearly explaining that all the cash deposited by the petitioner was received from the members of the society. The petitioner had also explained that KYC of all the members were properly done and books of accounts of the Petitioner were duly audited and were furnished to the Registrar of Companies.
Case Title: M/S SRI SHYAM INCORPORATION & ANR. v. M/S SHREE BALAJI INDUSTRIES
Citation: 2022 LiveLaw (Del) 485
The Delhi High Court has observed that temperance and dignity in language is of absolute essence in pleadings filed in judicial proceedings. Justice C Hari Shankar further added thus:
"It is not permissible for any litigant, especially in a petition filed through Counsel, to attribute qualities such as obstinacy to a judicial forum. Courts do not pass orders based on personal predilections, but to conform to the correct position in law as they perceive it to be."
Title: INDIAN PROFESSIONAL NURSES THROUGH ITS JOINT SECRETARY SIJU THOMAS v. GOVERNMENT OF NCT OF DELHI & ANR.
Citation: 2022 LiveLaw (Del) 486
The Delhi High Court has pulled up the Delhi Government for not implementing an earlier order passed by it in the year 2019 regarding payment of nurses working in private hospitals as well as nursing homes. Observing that the conduct of the Delhi Government could be construed as wilful disobedience of judicial orders, Justice Subramonium Prasad expressed dissatisfaction by ordering thus:
"It is expected that the GNCTD shall comply with the Order dated 22.07.2019 before the next date of hearing. In case the said Order is not complied with, the concerned Officers are directed to be present in the Court to explain as to why contempt proceedings under Section 12 of the Contempt of Courts Act, 1971 should not be initiated against the erring Officers." The next date of hearing is July 12, 2022.
Case Title: ASSOCIATION OF MD PHYSICIANS v. NATIONAL BOARD OF EXAMINATION & ORS.
Citation: 2022 LiveLaw (Del) 487
The Delhi High Court has observed that a person approaching the High Court under Article 226 of the Constitution must come with a pair of clean hands, adding that there must be disclosure of full, complete and correct facts. A division bench comprising of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla also observed that a petitioner should not suppress any material facts and also not take repeated or parallel recourse to legal proceedings. The Court made the observations while dealing with an appeal challenging the judgment of a Single Judge dismissing the petition filed by Association of MD Physicians with cost of Rs.25,000.
Case Title: ABHISHEK GUPTA v. UNION OF INDIA & ORS.
Citation: 2022 LiveLaw (Del) 488
The Delhi High Court has observed that the purpose of detention order is a preventive measure and if the detenu is not served or detained at the earliest possible, keeping in view the spirit of Article 22(5) of the Constitution of India, the purpose is defeated. A division bench comprising of Justice Siddharth Mridul and Justice Anoop Kumar Mendiratta quashed the detention order issued under sec. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) to detain the petitioner in custody for a period of one year.
Apart from challenging the detention order, the petitioner had also challenged the further order under sec. 7(1)(b) of the COFEPOSA Act, 1974 directing him to appear before the Commissioner of Police, Delhi within seven days of the publication of the detention order.
Case Title: AKRITI AGGARWAL & ANR. v. GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY THROUGH ITS REGISTRAR
Citation: 2022 LiveLaw (Del) 489
The Delhi High Court has dismissed a plea filed by two final year law students seeking directions on Guru Gobind Singh Indraprastha University for providing certified copies of answer-scripts to students as per the fee prescribed under the RTI Rules, 2012 at candidate's request. A division bench comprising of Acting Chief Justice Vipin Sanghi and Justice Sachin Datta however clarified that the Court has not examined the issue as to whether the charges or fee prescribed by the University of Rs. 1,500 per examination answer sheet is excessive, or could be said to defeat the right to obtain information, as no challenge was raised to the prescription of the said fee under its Rules.
Filed by Akriti Agarwal and Lakshya Purohit through Advocate Paras Jain, the plea sought a direction in compliance of the Supreme Court judgment in the case titled ICSI v. Paras Jain wherein it was held that if a candidate seeks information under the RTI Act, then payment has to be sought under the rules made therein.
8. Waiver Under Section 12(5) Of A&C Act Has To Be By An Express Agreement In Writing: Delhi High Court
Case Title: AK Builders versus Delhi State Industrial Infrastructure Development Corporation Ltd
Citation: 2022 LiveLaw (Del) 490
The Delhi High Court has ruled that any right under Section 12(5) of the Arbitration and Conciliation Act, 1996 (A&C Act), that deals with the ineligibility of certain persons to be appointed as an arbitrator, can be waived of only by an express Agreement in writing entered into after the disputes had arisen between the parties. The Single Bench of Justice Vibhu Bakhru dismissed the contention that since the petitioner had participated in the arbitral proceedings it was precluded from raising any objections towards the appointment of the Arbitrator. The Court reiterated that a person who is ineligible to act as an arbitrator would also be ineligible to appoint an arbitrator.
Case Status: M/S Blue Heaven Cosmetics Pvt. Ltd v. Shivani Cosmetics
Citation: 2022 LiveLaw (Del) 491
In the case of competing trademarks of a cosmetics range, the Delhi High Court awarded damages of Rs. 10 lakh to M/s Blue Heaven Cosmetics Pvt. Ltd. Looking at the similarity of the defendant's product to the Blue Heaven range, Justice Pratibha M. Singh remarked, "...this is not a case of innocent adoption, and the Court cannot encourage such dishonest conduct on behalf of the Defendant. Thus, taking a reasonable assessment of the products which may have been sold by the Defendant, the present suit is decreed for Rs.10 lakhs as damages. In addition, Rs.2 lakhs is awarded as costs." A suit was filed by M/s Blue Heaven Cosmetics Pvt. Ltd. seeking a permanent injunction restraining infringement of registered trademark, trade dress, copyright, writing style, color combination, label, packaging, passing off goods, delivery up, retention of account of profit along with further damages.
Case Title: ASLAM SHER KHAN v. UNION OF INDIA & ORS.
Citation: 2022 LiveLaw (Del) 492
The Delhi High Court has put the affairs of Hockey India in the hands of Committee of Administrators (CoA) as per a recent Supreme Court order, observing that its administrative setup was erroneously or illegally constituted because of the Life President and Life Members. A division bench comprising of Justice Najmi Waziri and Justice Swarna Kanta Sharma added thus: "The Government of India cannot grant recognition to a NSF whose constitution is not in consonance with the Sports Code. The posts of Life President, Life Member in the NSF are illegal so is the post of CEO in the Managing Committee. These posts are struck-down. All such references in the Constitution/Memorandum of Association of R-2 will have to be removed." The Court relied on the recent Supreme Court order in All India Football Federation vs. Rahul Mehra dated May 18, 2022.
11. Defendant In A Plaint Cannot Insist That Plaintiff Should Sue A Third Party: Delhi High Court
Case Title: AAA VEHICLEADES PVT LTD v. BALKISHAN GUPTA
Citation: 2022 LiveLaw (Del) 493
The Delhi High Court has observed that a defendant in a plaint cannot insist that the plaintiff should sue a third party, adding that he can only defend the plaint qua the allegations against him. Justice C Hari Shankar added that the defendant cannot insist that the plaintiff should sue a party whom the plaintiff has not chosen to sue. The Court added that if the plaintiff fails to sue a necessary party, it would be at the risk and cost of the plaintiff. "A defendant in a plaint cannot insist that the plaintiff should sue a third party. He can only defend the plaint qua the allegations against him. It is open to a defendant to contest his liability, qua the plaintiff, and, in an appropriate case, the defendant may also be entitled to move an application for rejection of the suit outright, if it fails to make out any sustainable cause of action against the plaintiff invoking, for the purpose, Order VII Rule 11 of the CPC," the Court observed.
Case Title: PUMA SE v. HI-TEC POINT TECHNOLOGIES P. LTD. AND ORS.
Citation: 2022 LiveLaw (Del) 494
The Delhi High Court has directed Google LLC to remove the application 'PUMA GUARD' from its Google Play Store while dealing with a trademark infringement suit filed by 'PUMA'. Justice Pratibha M Singh was dealing with a suit filed by the Plaintiff PUMA SE seeking protection of its mark 'PUMA' which was coined and adopted by it internationally in 1948. 'PUMA' is one of the world's leading sports brand designing, developing, selling and marketing footwear, apparel and accessories. The mark 'PUMA' has been used in India from 1980's onwards and the same is registered under several classes. The Defendant No.1 M/s Hi-Tech Point Technologies Pvt. Ltd. started a GPS service through electronic application by the name 'PUMA GUARD'. Defendant No.2 Black Box GPS Technology OPC Pvt. Ltd. also launched a device with GPS tracking and anti-theft capabilities under the mark 'PUMA'.
Case Title: NEETA BHARDWAJ & ORS. v. KAMLESH SHARMA
Citation: 2022 LiveLaw (Del) 495
Observing that redevelopment of city's Kalkaji Temple can commence only if all persons who are in occupation of dharamshalas vacate the said premises, the Delhi High Court has said that it will direct final vacation of the same by all occupants on June 1. Justice Pratibha M Singh, who was dealing with a bunch of pleas concerning the aspect of maintenance and redevelopment of the temple, added that the pujaris or baridaars who are occupying the dharamshalas shall make submissions before the Court concerning the timelines of such vacation on the said date. "The pujaris/baridaars shall submit their suggestions with regard to the redevelopment, to the ld. Administrator within 15 days of obtaining the layout plan. Pursuant to the same, such parties shall appear before the ld. Administrator on 4th June, 2022 at 5 P.M., by which time all the suggestions of the pujaris/baridaars shall be submitted. On the said date, the ld. Administrator would consider the suggestions given with respect to the redevelopment of the Kalkaji Mandir," the Court added.
14. Delhi High Court Asks Sharjeel Imam To Approach Trial Court Seeking Interim Bail In Sedition FIR
Case Title: Sharjeel Imam v. The State of NCT of Delhi
Citation: 2022 LiveLaw (Del) 496
The Delhi High Court on Thursday granted liberty to Sharjeel Imam to approach the Trial Court seeking interim bail in an FIR against him involving the offence of Sedition under sec. 124A of Indian Penal Code, in view of recent Apex Court order wherein the sedition law has been kept in abeyance till the Union Government reconsiders the provision. The development came after Special Public Prosecutor Amit Prasad raised a preliminary objection on the maintainability of the interim bail application before the High Court, submitting that according to a 2014 Supreme Court ruling, the bail application has to be moved in the first instance before the Special Court and if aggrieved, an appeal would thereafter lie before the High Court.
Case Title: Help India Against Corruption v. Union of India
Citation: 2022 LiveLaw (Del) 497
The Delhi High Court has dismissed a public interest litigation seeking inclusion of Group A, B C and D officers of the Delhi government within the scope and ambit of the Delhi Lokayukta and Uplokayukta Act, 1995. A Division Bench of Acting Chief Justice Vipin Sanghi and Justice Sachin Datta observed that it is not for the Courts to issue a writ of mandamus to the legislature to either enact or amend the law in a particular way, as may be required by the Petitioner. " A government functionary indulging in corruption activities, first of all it is a Criminal offence under the Prevention of Corruption Act. He is also subject to departmental inquiry. So it is all covered...We can quash a law if it is unconstitutional. We can interpret the law. But we cannot direct enactment of the law," Justice Sanghi said.
Case Title: Ketan Ribbons Pvt Ltd Vs National Faceless Assessment Centre Delhi
Citation: 2022 LiveLaw (Del) 498
The Delhi High Court bench of Justice Manmohan and Justice Manmeet Preetam Singh Arora, while directing the National Faceless Assessment Centre (NFAC) to pass the fresh assessment order, held that the taxpayers have an independent statutory right to file a reply to the show cause notice and draft assessment order. The Assessing Officer had extended the timeframe for filing objections to the show cause notice and draft assessment order dated April 22nd, 2021, from April 26th, 2021, to May 17th, 2021. The Assessing Officer proceeded to pass the assessment order dated May 23, 2021 under Section 143 (3) read with Section 144B of the Income Tax Act, 1961, in violation of the principle of natural justice.
Case Title: M/S Chhavi & Ors v. Union of India
Citation: 2022 LiveLaw (Del) 499
The Delhi High Court recently dismissed an appeal pertaining to admission in B.Sc. Nursing courses, challenging the notification issued by the National Testing Agency (NTA) that made clearing of NEET-UG examination a prerequisite. The appeal was preferred from the order of a Single Judge, refusing to interfere in the matter. A Division Bench bench of Acting Chief Justice Vipin Sanghi and Justice Sachin Datta noted that the case of the appellants is no different from the earlier decided case of Saloni Yadav where it was held that there is no infirmity in NTA's decision to include a mandatory eligibility condition of qualifying the NEET-UG as a pre-condition for admission in Military Nursing Service courses. It held that merely because the appellants are desirous of competing for B.Sc. (Nursing) as opposed to the Military Nursing Service, it makes no difference. It noted that the distinctions sought to be drawn by the appellants between the courses are wholly irrelevant.
18. Real Estate Appellate Authority Can't Initiate Suo Moto Proceedings: Delhi High Court
Case Title: PRAVEEN CHHABRA v. REAL ESTATE APPELLATE TRIBUNAL
Citation: 2022 LiveLaw (Del) 500
The Delhi High Court has held that the Real Estate Appellate Authority cannot possibly be recognized as conferred with the power to initiate proceedings suo moto or on its own motion. Analyzing the relevant provisions of the Real Estate (Regulation and Development) Act, 2016, Justice Yashwant Varma added that the Appellate Tribunal is a creation of statute and that it is not an authority which may be recognised as being vested with inherent powers. "Regard must also be had to the fact that the Appellate Tribunal is not part of the hierarchy of traditional judicial institutions which constitute the judicial system of our country. It is an appellate forum whose origin and formation stems from the provisions of the Act. It is in that sense an adjudicatory authority which owes its existence and authority to a special statute," the Court observed.
19. Titles Of Films Are Capable Of Being Recognised Under Trademark Law: Delhi High Court
Case Title: SHOLAY MEDIA ENTERTAINMENT AND ANR. v. YOGESH PATEL AND ORS.
Citation: 2022 LiveLaw (Del) 501
The Delhi High Court has recently rejected a contention that titles of films cannot be registered under Trademark Law and has held that the word 'SHOLAY' being the title of an iconic film cannot be held to be a mark devoid of protection. Justice Pratibha M Singh added that certain films cross the boundaries of just being ordinary words and the title of the film 'SHOLAY' is one of them. "Titles and films are capable of being recognised under trademark law and in India 'SHOLAY' would be a classic example of such a case," the Court said.
It added,
"If there is one film that transcends generations of Indians, it is 'SHOLAY'. The said film, its characters, dialogues, settings, box office collections are legendary. Undoubtedly, 'SHOLAY' is one of the biggest, record-breaking films that India has ever produced, in the history of Indian cinema...The mention of the word 'SHOLAY' immediately creates a connection with the movie 'SHOLAY'. There are industry estimates which claim that, although the words 'SHOLAY' may have a dictionary meaning in Hindi (specifically, 'burning coal'), upon the movie going public, the word 'SHOLAY' came to be associated only with the film." Thus, it awarded Rs.25,00,000/- as costs and damages to Sholay Media and Entertainment Pvt Ltd. and Sippy Films Pvt. Ltd. which holds rights in the film.
Case Title: A-One Realtors Pvt. Ltd. v. Energy Efficiency Services Ltd.
Citation: 2022 LiveLaw (Del) 502
The High Court of Delhi has held that the plaintiff is not entitled to return of Court Fess when the parties are referred to arbitration under Section 8 of the A&C Act. The Single Bench of Justice Amit Bansal held that the benefit of Section 16[1] of the Court Fees Act would only be available to the plaintiff when the parties are referred to arbitration for settlement in terms of Section 89 of the CPC and not under Section 8 of the A&C Act.
Case Title: JAI KUMAR JAIN AND ORS v. STATE GOVT OF NCT OF DELHI AND ORS.
Citation: 2022 LiveLaw (Del) 503
The Delhi High Court has condemned the practice of lodging FIRs on frivolous and minor issues, adding that the Judicial system and state resources are already heavily burdened and litigants must be conscious of their actions. A single judge bench comprising of Justice Jasmeet Singh added that such an exercise is nothing but an abuse of the process of law which must be discouraged in its entirety. "Parties before lodging an FIR, must have due regard as to not only the nature and gravity of what offences they are alleging but also the state and police resources that go into investigating those matters, which are ultimately put up before court to only be quashed," the Court said.
Case Title: HT MEDIA LIMITED & ANR. v. WWW.HINDUSTANTIMES.TECH & ANR.
Citation: 2022 LiveLaw (Del) 504
The Delhi High Court has granted ex-parte ad interim injunction in favour of HT Media Limited which runs news publications in various languages under the registered trademark Hindustan Times, against a rogue website using a deceptively similar domain name. Passing an ex parte ad interim injunction in favour of HT Media, Justice Pratibha M Singh restrained the use of www.hindustantimes.tech, consisting of the word 'Hindustan Times'. It also restrained the website from publishing any content including articles, stories, columns, reviews, etc., being in violation of HT Media's copyright.
Case Title: UNION OF INDIA, MINISTRY OF RAILWAYS, RAILWAY BOARD & ANR. v. M/S JINDAL RAIL INFRASTRUCTURE LIMITED
Citation: 2022 LiveLaw (Del) 505
The High Court of Delhi held that the arbitrator cannot re-write the terms of the agreement between the parties merely because they flout business common sense. The Single Bench of Justice Vibhu Bakhru has held that an award wherein the arbitrator re-work a bargain between the parties merely because it is commercially difficult for one party to perform the same would be against the fundamental policy of Indian Law and vitiated by patent illegality. The Court held that when the agreement confers on one party the right to place an additional order on the same terms and conditions during the currency of the contract, the condition under the agreement must be given effect to and the arbitrator cannot negate the mandate of such a stipulation.
Case Title: Sanjay Roy versus Sandeep Soni & Ors.
Citation: 2022 LiveLaw (Del) 506
The Delhi High Court has held that an arbitral award that is not in consonance with the judicial decisions and principles laid down by the courts of India would be in violation of the fundamental policy of Indian law and thus in conflict with the public policy of India under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act). The Bench, consisting of Justices Mukta Gupta and Neena Bansal Krishna, upheld the order of the Single Judge setting aside the arbitral award under Section 34 on the ground that the Arbitrator had failed to apply the basic fundamental law as contained in the Limitation Act, 1963 and the Transfer of Property Act, 1882.
Case Title: Rajinder Kumar Agarwal v. Union of India
Citation: 2022 LiveLaw (Del) 507
The High Court of Delhi has held that the provisions for the quantum of damages under Land Acquisition Act, 2013 (LARR Act) would apply to arbitrations under the Resettlement of Displaced Persons (Land Acquisition) Act, 1948. The Single Bench of Justice Navin Chawla has held that the provisions of the LARR Act being beneficial in nature would also apply to all the pending arbitrations under the Resettlement of Displaced Persons (Land Acquisition) Act.
The Court further held that only the provisions qua the quantum of compensation under the LARR Act are made applicable and the arbitrator appointed under Section 7 of the Resettlement of Displaced Persons (Land Acquisition) Act would continue to determine the amount of compensation and not the collector under the LARR Act.
Case Title: Suresh Chand Gupta Versus State of Govt. Of NCT
Citation: 2022 LiveLaw (Del) 508
The Delhi High Court has ruled that the prosecution of the petitioner cannot be initiated under Section 135(1)(a) of the Customs Act as valuation of the goods is less than Rs.1 Crore. The single judge bench of Justice Chandra Dhari Singh has observed that the department has not examined any witness to prove its case against the petitioner. The Court below while passing the summoning order has not assigned any reason for summoning the petitioner.
The Director of Revenue Intelligence (DRI) filed a criminal complaint under Section 132 and 135 (1)(a) of the Customs Act, before the Trial Court. The complaint stated that intelligence reports have been received that M/s Elgin Electronics, of which petitioner was the Proprietor.
Case Title: KRISHAN KAKKAR v. KIRAN CHANDER
Citation: 2022 LiveLaw (Del) 509
The Delhi High Court has observed that no Court can compel a party to file documents on which the party did not choose to rely, save and except in respect of certain specific eventualities for which provisions are contained in the Code of Civil Procedure. Justice C Hari Shankar added that in any litigation, the choice of the documents which are to be brought on record is the sole prerogative of the party who files the documents. The Court was dealing with a plea challenging orders dated 8th July, 2021 and 6th May, 2022, passed by the Additional District Judge in a civil suit.
The order dated 8th July, 2021 rejected an application filed by the petitioner, as the defendant in in the suit, seeking dismissal of the suit under Order VII Rule 11 of the CPC. Towards the conclusion of the impugned order, the ADJ directed the respondent to file two documents.
Case Title: SANJAY SINGH v. SUKHPAL KAUR
Citation: 2022 LiveLaw (Del) 510
Observing that the Courts have to march in sync with the latest developments in technology, the Delhi High Court has said that the reluctance of the judges to conduct virtual proceedings is not in alignment with the technological advancements. Adding that the system of conducting Court proceedings through video conferencing is being encouraged by the Apex Court as well as the High Court, Justice Dinesh Kumar Sharma observed thus:
"It is thus expected of the judges in the District Courts also to ensure that such a system of conducting the proceedings through video conferencing is put to usage. Virtual proceedings provide an opportunity to modernise the system by making it more affordable and citizen friendly, enabling the aggrieved and/or litigants to access justice from remote parts of the country and the world."
Case Title: NIZAMUDDIN KHAN v. THE STATE & ANR.
Citation: 2022 LiveLaw (Del) 511
The Delhi High Court has observed that matters regarding liberty of a person have to be dealt with cautiously and that a balance has to be struck between respect for his fundamental rights and free and fair investigation as well. Justice Swarna Kanta Sharma made the observation while granting bail to a man in an FIR registered under sec. 376D, 506 and 34 of Indian Penal Code.
It was the case of the complainant, real sister of the petitioner, that the incident in question had allegedly taken place in March 2019. When a query was put to the counsel for the complainant regarding reason for the delay in lodging of the FIR, it was stated that since it was a sensitive relationship, at the instance of their father who had unfortunately passed away in October, 2021, the complainant did not lodge any complaint.
Case Title: Amrish Gupta v. Gurchait Singh Chima
Citation: 2022 LiveLaw (Del) 512
The High Court of Delhi held that a party cannot dispute the jurisdiction on account of non-existence of the arbitration agreement after submitting to the jurisdiction of the arbitrator. The Single Bench of Justice Vibhu Bakhru held that generally, the arbitration clause contained in the main agreement would also fall when the validity of the main agreement is challenged and the dispute would be non-arbitrable.
However, when a party agrees to refer the dispute to arbitration and chooses to dispute only the main agreement without laying any challenge to the arbitration clause, it is deemed to have waived its objections qua the arbitration clause and it cannot contend that the arbitrator had no jurisdiction to decide the dispute. The Court held that the Court can have a 'second look' at the issue of arbitrability, however, it must be within the four corners of the limited grounds of interference under Section 34 of the A&C Act.
Gujarat High Court
NOMINAL INDEX
Jaydev Mulubhai Jaju vs State Of Gujarat 2022 LiveLaw (Guj) 177
Hardasbhai Raymalbhai Gohil vs Sanjaybhai Arvindbhai Jabuani 2022 LiveLaw (Guj) 178
Shaileshgiri Mohangiri Meghnathi V/S State Of Gujarat 2022 LiveLaw (Guj) 179
Madrasa-E-Anware Rabbani Waqf Committee V/S Surat Municipal Corporation 2022 LiveLaw (Guj) 180
Rajendrakumar Manilal Jaiswal V/S State Of Gujarat & 3 Other(S) 2022 LiveLaw (Guj) 181
National Insurance Co Ltd V/S Rajeen Rafiqahmed Vohra & 4 Other(S) 2022 LiveLaw (Guj) 182
Amitkumar Babubhai Katara V/S The State Of Gujarat 2022 LiveLaw (Guj) 183
Sumesh Engineers Private Limited V/S Madhya Gujarat Vij Company Limited 2022 LiveLaw (Guj) 184
Yamuna cables accessories pvt. Ltd. V/s desai enterprise 2022 LiveLaw (Guj) 185
State Of Gujarat V Saurashtra Majur Mahajan Sangh 2022 LiveLaw (Guj) 186
Orders/Judgment of the Week
Case Title: Jaydev Mulubhai Jaju vs State Of Gujarat
Citation: 2022 LiveLaw (Guj) 177
The High Court has permitted a person claiming to be from the Scheduled Tribe community, to be provisionally appointed to the post of Sales Tax Inspector Class III, pending scrutiny of the caste certificate produced by him. Justice Biren Vaishnav directed that such an appointment will be subjected to the result of the Scrutiny Committee. If the certificate produced by the Petitioner is proved to be disingenuous, the Petitioner would not be entitled to the benefit of being in provisional service. Per contra, if the certificate of the Petitioner is found to be genuine, it will be open for the Petitioner to claim his actual appointment along with continuity of service and other benefits.
Case Title: Hardasbhai Raymalbhai Gohil vs Sanjaybhai Arvindbhai Jabuani
Citation: 2022 LiveLaw (Guj) 178
The High Court directed the Motor Accident Claims Tribunal to consider the claim petition filed by a motor accident victim, even though there was a delay of about 1 month in reporting the matter to the Police. The direction was passed in a First Appeal filed under Section 173 of the Motor Vehicles Act 1988 challenging dismissal of the claim petition. Attention was drawn to the fact that the victim herein was earning INR 1,50,000 from his agricultural work and therefore the claimants were entitled to get compensation worth INR 11,00,000.
Case Title: Shaileshgiri Mohangiri Meghnathi V/S State Of Gujarat
Case Citation: 2022 LiveLaw (Guj) 179
While opining that it is a matter of shame for a lawyer to be involved in serious offences of cheating, criminal breach of trust and criminal intimidation, the Gujarat High Court has refused bail to the Applicant who had allegedly eloped for 3 years with a huge amount of money during the execution of a sale deed. The Bench comprising Justice Niral R Mehta observed, "applicant being a lawyer by profession, is oftenly involved in the offence serious in nature which itself is a matter of shame. The profession of a lawyer is a noble profession, as it has direct nexus with pious stream of justice which at any cost shall not be allowed to be polluted. It is highly unexpected from a lawyer to have indulged in such an offence not once, but several times in past. Though some offences are settled, but the fact remains that the offences took place at the instance of the applicant. Thus, the conduct of the applicant seems to be not befitting to the standard of the profession."
Case Title: Madrasa-E-Anware Rabbani Waqf Committee V/S Surat Municipal Corporation
Case Citation: 2022 LiveLaw (Guj) 180
The High Court refused to interfere with an order passed by the Executive Engineer of the Surat Municipal Corporation, directing removal of an alleged "Madrassa" said to be constructed on a government land, on the ground that the construction was without prior permission of the competent authority. "In the opinion of the Court, in absence of any evidence on record regarding actual running of educational institution and there is nothing on record to indicate any permission to running educational institution or building permission to put up construction of educational institution and the factual assertion not being controverted that the premises were being used for commercial purpose, the Court is not inclined to interfere with the ongoing process, which according to the Court is in accordance with the provisions of GDCR," Justice AY Kogje said.
Case Title: Rajendrakumar Manilal Jaiswal V/S State Of Gujarat & 3 Other(S)
Case Citation: 2022 LiveLaw (Guj) 181
While quashing the FIR registered against the Applicant for offences under Sections-66(1)b, 65AE, 116(2), 81, 98 and 99 of the Gujarat Prohibition Act, the High Court has held that it is not open for the Investigating Officer to rely upon other material which was not a part of the chargesheet to allege that the Applicant was involved in the crime in in question.
The Applicant had challenged the FIR since initially he was not named in the FIR but after the investigation his name was included in the charge sheet basis the statements of the co-accused. It was also mentioned in the chargesheet that the Applicant was the principal purchaser of prohibited goods despite there being no material to support the allegations. There was also no evidence that the Applicant had piloted the truck with prohibited goods.
Case Title: National Insurance Co Ltd V/S Rajeen Rafiqahmed Vohra & 4 Other(S)
Case Citation: 2022 LiveLaw (Guj) 182
Stating that the Insurance Company had unnecessarily filed an appeal for challenging a small compensation amount in a motor vehicles accident claim, Justice Sandeep Bhatt has affirmed the award of INR 65, 200 passed by the Motor Accident Claims Tribunal and dismissed the appeal of the Insurance Company.
The brief facts of the case were that the Claimant (Respondent No. 1) was riding in a rash and negligent manner on a motorcycle with the Opponent No. 2 as a pillion rider when the Opponent No. 4 driving a tempo hit the motorcycle because of excessive speed. This caused serious injuries and fracture to the Claimant. The claim petition was filed to gain compensation worth INR 3 lakhs. However, noting the involvement and liabilities of both parties and the disability claims, the Tribunal declared a compensation of INR 65,200 with 7.5% interest for the Claimant.
Case Title: Amitkumar Babubhai Katara V/S The State Of Gujarat
Case Citation: 2022 LiveLaw (Guj) 183
Opining that there is sufficient evidence to form a prima facie view that the Congress Leader Amit Katara hatched a criminal conspiracy to murder BJP councillor Hiren Patel amid political rivalry, the Gujarat High Court has rejected his bail plea for alleged offences under Sections 302, 303 read with Sections 120(b) and 201 of IPC. The Bench comprising Justice Ilesh Vora observed,
"The Court should not go into merits of the case by appreciation of the evidence. Thus, considering the facts and circumstances of the present case, it appears that the applicant was dominating over the municipality affairs as his wife was President and the whole body was representing one party. In this context, when deceased had managed to win over the councilors of the ruling party, naturally, the issue of ruling of municipality would arise. At this stage, considering the material collected during the course of investigation, it cannot be said that there is no evidence connecting the applicant herein in the alleged offence. It is alleged that, the applicant conspired to kill the deceased for which, he agreed to finance also."
Case Title: Sumesh Engineers Private Limited V/S Madhya Gujarat Vij Company Limited
Case Citation: 2022 LiveLaw (Guj) 184
The Gujarat High Court has recently observed that normally, Courts would be loath to interfere in contractual matters unless a clear-cut case of arbitrariness or malafides or bias or irrationality is made out. A bench of Chief Justice Aravind Kumar and Justice Ashutosh Shastri observed that needless interference in commercial matters can cause havoc and hence, the Courts must realize their limitations in such matters.
"But, at the same time, it is also the proposition of law that Constitutional Court being the guardian of the fundamental rights, is duty bound to interfere when there is arbitrariness, irrationality, malafides and bias and as such, a duty is cast upon the Court in such circumstances that whenever any specific arbitrariness or irrationality is visible in public interest, Court can exercise powers of judicial review," it added.
Case Title: yamuna cables accessories pvt. Ltd. V/s desai enterprise
Case Citation: 2022 LiveLaw (Guj) 185
The High Court permitted a party in appeal under the Micro, Small and Medium Enterprises Development Act, 2006 to make a pre-deposit to Court in terms of Section 19 of the Act, i.e., 75% of the amount awarded, in installments. The Petitioner herein was aggrieved by an order of Additional District Judge, whereby its application for extension of time to deposit the 75% of the award amount was rejected.
Gujarat HC Affirms Regularisation Of Sweeper Working Around 8 Hours A Day For Over 30 Years
Case Title : State Of Gujarat V Saurashtra Majur Mahajan Sangh
Case Citation: 2022 LiveLaw (Guj) 186
Justice Biren Vaishnav affirmed the order of the Industrial Tribunal which directed the Petitioner-State authorities to regularise the position of a sweeper who had been working for over four hours everyday for the past thirty years. The Tribunal had directed that the State also remit all the arrears from the date of reinstatement given the length of the worker's tenure.
Other updates from the High Court
Case Title: Kundankumar Hasmukhbhai Parmar V/S Rashtriya Raksha University
The High Court has issued notice to the Rashtriya Raksga University on a plea moved by its Chief Accounts Officer (Class-I), challenging a communication which directs his transfer from the University's Gandhinagar campus to an upcoming campus at an 'unknown location' in Arunachal Pradesh.
The employee, claiming to be working on a 'permanent' and 'sanctioned' post has stated that the new location is 3,000+ kilometers away from the University's sole Lavad-Dehgam campus in Gandhinagar and he is the only employee amongst 233 employees to be transferred to such a location. The purported motivation behind such transfer order is that the Petitioner continues to raise his voice against alleged illegalities and irregularities committed by the University's Vice Chancellor.
Himachal Pradesh High Court
Case Title: Ankit Ashok Nisar & Ors v. State of Himachal Pradesh
Citation : 2022 LiveLaw (HP) 10
While granting bail to an accused under the Narcotics Drugs and Psychotropic Substances Act, 1985, the Himachal Pradesh High Court said that it is highly unbelievable that the persons carrying a commercial quantity of contraband would keep documents relating to their identity in the same bag. Justice Sandeep Sharma was of the view that this creates a suspicion about the correctness of the prosecution story; as usually, an identity card is kept in a purse or pocket, not in a bag that too with contraband. It observed, "Once, the bail petitioner was found carrying the wallet; it is not understood, instead is highly unbelievable that a person would keep his driving license and Adhaar card in a bag containing the contraband. Had one of the accused kept his DL /Adhaar card in a contraband pack, this court may have accepted that version. Still, it is highly unbelievable that both the accused had kept their Adhaar Card and DL card in the bag, allegedly recovered by the police, containing a commercial quantity of the contraband."
2. Justice Sabina Appointed As Acting Chief Justice Of Himachal Pradesh High Court
The Centre has issued notification appointing Justice Sabina, senior-most Judge of the Himachal Pradesh High Court to perform the duties of the office of the Chief Justice of that High Court. The above appointment has been made in consequence of the retirement of Justice Mohammad Rafiq, Chief Justice, Himachal Pradesh High Court. This appointment has been made with effect from 25.05.2022. The notification issued by Ministry of Law and Justice read as follows: "In exercise of the power conferred by Article 223 of the Constitution of India, the President is pleased to appoint, Smt. Justice Sabina, senior-most Judge of the Himachal Pradesh High Court, to perform the duties of the office of the Chief Justice of that High Court, with effect from 25.05.2022 consequent upon the retirement of Shri Justice Mohammad Rafiq, Chief Justice, Himachal Pradesh High Court."
Case Title: Waheed ur Rehman Parra V/s UT of J&K through Investigating Officer, P/S Counter Intelligence
Citation : 2022 LiveLaw (JK) 35
The Jammu and Kashmir and Ladakh High Court recently allowed bail to a man who was booked under Unlawful Activities (Prevention) Act, 1967, merely because he was seen in the company of a member of a terrorist organization. While granting bail, the Court observed that merely seeing him with a member of a terrorist organization is not enough to attract UAPA charges. "It is, thus, clear that merely the accused having been seen in the company of a member of a terrorist organization without doing anything more is not enough to attract the applicability of UAPA Act. Keeping in view the totality of circumstances and the discussion made hereinabove, we are of the considered view that this appeal deserves to be allowed. Ordered accordingly." Court was hearing an appeal under Section 21 of the National Investigation Act, 2008 challenging the order of Special Court rejecting his plea for bail in connection with alleged offences under Sections 13, 17, 18, 38, 39 & 40 of UAPA read with Sections 120-B, 121, 121-A & 124-A IPC.
Nominal Index:
SHIVAPRASAD @ SHIVA v. State of Karnataka. 2022 LiveLaw (Kar) 167
N.R. Sugandaraju v. State of Karnataka, 2022 LiveLaw (Kar) 168
NETHRA v STATE OF KARNATAKA, 2022 LiveLaw (Kar) 169
V Srinivasaraju v State by Yelahanka Police, 2022 LiveLaw (Kar) 170
E S Praveen Kumar v. State of Karnataka, 2022 LiveLaw (Kar) 171
Shalini and Anr. versus National Highways Authority of India and Ors. Citation : 2022 LiveLaw (Kar) 172
CANCER PATIENTS AID ASSOCIATION v CENTRAL BOARD OF FILM CERTIFICATION, 2022 LiveLaw (Kar) 173
SUJIT S/O MADIWALAPPA MULGUND v. THE SUPERINTENDENT OF POLICE, 2022 LiveLaw (Kar) 174
Judgments/Orders/Reports
1. Karnataka High Court Acquits Murder Convict, Sets Aside Life Term After Man Serves 13 Yrs In Jail
Case Title: SHIVAPRASAD @ SHIVA v. State of Karnataka
Case No: CRIMINAL APPEAL No.573/2019
Citation: 2022 LiveLaw (Kar) 167
The Karnataka High Court recently set aside the conviction of a man, incarcerated since 13 years, for the offence of murder under Section 302 IPC. The Court thus set aside the life term imposed by Special CBI Court and ordered his forthwith release.
2. Karnataka High Court Grants Bail To PT Teacher Charged Under POCSO Act For Misbehaving With Student
Case Title: N.R. Sugandaraju v. State of Karnataka, Case No: CRIMINAL PETITION NO.2917/2022.
Citation: 2022 LiveLaw (Kar) 168
The Karnataka High Court recently granted bail to a PT Teacher accused of misbehaving with a student studying in the 10th standard of the school and charged under section 8 and 12 of the Protection of Children from Sexual Offences Act, 2012.
Case Title: NETHRA v STATE OF KARNATAKA
Case No: CRIMINAL PETITION No.2306 OF 2022
Citation: 2022 LiveLaw (Kar) 169
Observing that it is not the law that bail should always be denied in a case where the offence punishable is of death or life imprisonment, the Karnataka High Court recently granted bail to a woman accused of murdering her husband. A single judge bench of Justice M Nagaprasanna allowed the petition filed by one Netra and granted her bail relying on section 437 of the Criminal Procedure Code (CrPC).
Case Title: V Srinivasaraju v State by Yelahanka Police. Case No: Criminal Petition no 4770/2015.
Citation: 2022 LiveLaw (Kar) 170
The Karnataka High Court while refusing to quash the case of abetment of suicide against an accused, has observed that perception of threatening word differs from person to person and thus, it would not be appropriate in the facts of the case to quash the FIR without a full-fledged trial.
5. Police Sub-Inspector Is Empowered To Investigate & File Charge Sheet: Karnataka High Court
Case Title: E S Praveen Kumar v. State of Karnataka, Case No: Criminal Petition 2807/2022.
Citation: 2022 LiveLaw (Kar) 171
The Karnataka High Court has held that a Police Sub-Inspector is empowered to investigate and file charge sheet. There is no defect in the charge sheet filed by the Police Sub-Inspector after due investigation.
Case Title: Shalini and Anr. versus National Highways Authority of India and Ors.
Citation : 2022 LiveLaw (Kar) 172
The Karnataka High Court has ruled that an award of compensation passed by an Arbitrator under Section 3G(5) of the National Highways Act, 1956 does not attract stamp duty.
Case Title: CANCER PATIENTS AID ASSOCIATION v CENTRAL BOARD OF FILM CERTIFICATION
Citation : 2022 LiveLaw (Kar) 173
Case no: WP 5861/2022
The Karnataka High Court on Tuesday dismissed a petition filed by Cancer Patients Aid Association against the movie "KGF-2" for allegedly promoting smoking by displaying the habit as healthy and heroic.
Case Title: SUJIT S/O MADIWALAPPA MULGUND v. THE SUPERINTENDENT OF POLICE
Case No: WP 15144/2021
Citation: 2022 LiveLaw (Kar) 174
The Karnataka High Court has issued general directions for speedy conclusion of investigations in criminal matters. A single judge bench of Justice S Sunil Dutt Yadav in its interim order said, "There is a requirement to pass directions for speedy conclusion of investigation, that may be applicable to the matters in general."
Other reports
1. Karnataka High Court Extends Stay On ED Attachment Of Xiaomi India Pvt Assets
Case Title: Xiaomi Technology India Private Limited v. Union of India
Case No: WP 9182/2022
The Karnataka High Court on Monday extended till June 1, its earlier interim order staying the order issued by the Enforcement Directorate dated April 29, by which it had seized Rs.5551.27 crores from M/s Xiaomi Technology India Pvt Ltd under the provisions of the Foreign Exchange Management Act,1999 (FEMA).
Case Title: The State Election Commission Karnataka v. State of Karnataka
Case No: WP 20426/2021
The Karnataka High Court on Tuesday directed the State government to complete, in 12 weeks time, the exercise of delimitation of wards in the taluka and zilla panchayats and also complete the exercise for providing reservation to Other Backward Classes (OBC) and other categories within the said period.
Case Title: GOOGLE INDIA PRIVATE LIMITED & others versus COMPETITION COMMISSION OF INDIA & others
Case No: WP 9399/2022
The Karnataka High Court on Wednesday extended its order passed earlier, temporarily restraining the Competition Commission of India (CCI) from divulging confidential information of Google India Pvt Ltd to the complainant Alliance Of Digital India Foundation till the next date of hearing.
Kerala High Court
Nominal Index
E.K. Rajan v. The Authorized Officer, Canara Bank, 2022 LiveLaw (Ker) 236
P.C. George v. State of Kerala, 2022 LiveLaw (Ker) 237
Indo-Asian News Channel Pvt. Ltd. v. T.N. Suraj & Ors, 2022 LiveLaw (Ker) 238
X v. State of Kerala & Ors, 2022 LiveLaw (Ker) 239
Renjith Maheshwary v. Union of India & Ors, 2022 LiveLaw (Ker) 240
Ravis Exporters v. Union of India, 2022 LiveLaw (Ker) 241
Raphy John v. Land Revenue Commissioner, 2022 LiveLaw (Ker) 242
Dr. Parvathy S v. Director General of Health Services & Ors, 2022 LiveLaw (Ker) 243
State Of Kerala vs Bijesh Kumar M, 2022 LiveLaw (Ker) 244
Saji Thomas Vs Assistant Commissioner, 2022 LiveLaw (Ker) 245
R.Ramaraja Varma v. State of Kerala, 2022 LiveLaw (Ker) 246
P.C. George v. State of Kerala, 2022 LiveLaw (Ker) 247
Judgments This Week:
Case Title: E.K. Rajan v. The Authorized Officer, Canara Bank
Citation: 2022 LiveLaw (Ker) 236
The Kerala High Court has ruled that the three methods of serving, affixing and publishing a notice of 15 days for subsequent sales, as provided under Rule 9(1) of the Security Interest (Enforcement) Rules, 2002, is mandatory in nature and the said requirement cannot be tampered with. Justice Bechu Kurian Thomas quashed the sale notice issued under the provisions of the SARFAESI Act on the ground that the statutory requirement of a 15 days clear notice for subsequent sale was not satisfied. The Court held that the said notice of sale was bad in law and the consequent sale was liable to be set aside.
2. Kerala High Court Grants Interim Anticipatory Bail To Politician PC George In Hate Speech Case
Case Title: P.C. George v. State of Kerala
Citation: 2022 LiveLaw (Ker) 237
The Kerala High Court granted interim anticipatory bail to senior political leader PC George in a hate-speech case over alleged statements against Muslims. A single bench of Justice P Gopinath passed the order, considering the fact that the offences under Section 153A and 295A of the Indian Penal Code are punishable with less than 3 years imprisonment, and that George has been an MLA for over 30 years and is unlikely to abscond.
Case Title: Indo-Asian News Channel Pvt. Ltd. v. T.N. Suraj & Ors.
Citation: 2022 LiveLaw (Ker) 238
The Kerala High Court recently modified the interim ex-parte gag order against Reporter TV restricting it from publishing/broadcasting/telecasting 'any item' concerning actor Dileep's brother in law, Suraj while reporting about the murder conspiracy case or the 2017 actor sexual assault case for three weeks. Justice Devan Ramachandran and Justice Sophy Thomas vacated the impugned order to the extent to which it has restrained the appellant from reporting 'any item' relating to Suraj noting that the said gag order imposed a restriction that was beyond the reasonableness established in Sahara India Real Estate Corporation Ltd & Ors v. SEBI & Anr by the Supreme Court.
Case Title: X v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 239
The Kerala High Court on Monday issued a set of suggestions for the State to consider to assist survivors of child abuse or sexual violence, while particularly emphasising the need to take steps to publicize the Toll-Free Number '112' as an Emergency Response Support System. Justice Devan Ramachandran reiterated that the growing number of cases of hapless victims being driven to stages of despondency bears testimony to the suspicion that the measures currently in place are not being implemented properly.
Case Title: Renjith Maheshwary v. Union of India & Ors.
Citation: 2022 LiveLaw (Ker) 240
The Kerala High Court on Tuesday disposed of the plea moved by the Olympian national record holder in triple jump Renjith Maheshwary challenging a press release issued by the Secretary, Department of Sports withholding the Arjuna Award previously conferred to him. Justice P.V. Kunhikrishnan asked Maheshwary to submit a representation along with all the documents available with him to the Centre for it to reconsider his grievance within 4 weeks and directed the Centre to decide on the same within 2 months.
Case Title: Ravis Exporters v. Union of India
Citation: 2022 LiveLaw (Ker) 241
The Kerala High Court has held that there was a total lack of application of mind in the order of the Committee of Executives (COE). There was a manifest failure to consider the explanation offered by the borrower/guarantor. The single bench of Justice Bechu Kurian has observed that the Review Committee also failed to consider or assess the order of the COE independently and failed to appreciate the failure to serve the order of COE on the petitioners.
7. No Quarrying Or Construction Work On Lands Assigned For Cultivation: Kerala High Court
Case Title: Raphy John v. Land Revenue Commissioner & connected matters.
Citation: 2022 LiveLaw (Ker) 242
The Kerala High Court on Wednesday ruled that no quarrying activities are permitted on land assigned for cultivation and thereby directed the State Government to take steps for the resumption of such land, notify and exempt the provisions of required. Overruling a Single Judge decision, a Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly in a batch of petitions moved by filed by the quarry owners and the Stated related to quarrying in lands assigned for rubber cultivation at the State's capital.
8. NEET-SS: Kerala High Court Orders Fresh Mop Up Rounds For A Vacant Seat At Kottayam Medical College
Case Title: Dr. Parvathy S v. Director General of Health Services & Ors.
Citation: 2022 LiveLaw (Ker) 243
The Kerala High Court on Wednesday issued an interim direction to the Director General of Health Services and Medical Counselling Committee (MCC) to conduct a fresh mop up counselling for the seat of DM Neurology lying vacant in the Kottayam Medical College. This seat had become vacant due to the resignation of a student who had already joined based upon the first round of counselling on getting admission to AIIMS New Delhi within a week.
Case Title: State Of Kerala vs Bijesh Kumar M.
Citation: 2022 LiveLaw (Ker) 244
The Kerala High Court on Thursday dismissed review petitions filed against its judgment which held that Guruvayoor Devaswom Managing Committee has no authority to contribute any amount from the Devaswom Funds to Chief Minister's Distress Relief Fund or to any other Governmental agency. The Full bench comprising Justices Anu Sivaraman, Shircy V. and M.R. Anitha pronounced the judgment today dismissing Review Petitions filed by the State Government.
10. Credit Notes Not Affecting Input Tax Can't Be Treated As Taxable Turnover: Kerala High Court
Case Title: Saji Thomas Vs Assistant Commissioner
Citation: 2022 LiveLaw (Ker) 245
The Kerala High Court bench of Justice S.V. Bhatti, Bechu Kurian Thomas, and Justice Basant Balaji has held that credit notes not affecting input tax already deposited cannot be treated as taxable turnover by the extended meaning of Section 2 subsection (iii) Explanation VII of the Kerala Value Added Tax Act. The court observed that the State Legislature has jurisdiction to define and decide the taxable events, turnover, taxable turnover, total turnover, taxable persons, the measure of tax, and the rate of tax under the Act. As part of its policy of imposing compensatory taxes on the above-stated situations, the Legislature, in its wisdom and experience, defines what constitutes a sale price, purchase price, turnover, etc.
Case Title: R.Ramaraja Varma v. State of Kerala
Citation: 2022 LiveLaw (Ker) 246
The Kerala High Court on Friday observed that rally organisers were equally responsible if any controversial remarks/slogans are made during the rally disrupting the peace of the society. Justice P.V. Kunhikrishnan directed the police to take appropriate actions against the rally organizers. The court made the observations in a plea for a prohibition on public conferences, marches, mass drills, and motorcycle rallies in the 'Jana Maha Sammelanam' conducted by the Popular Front of India (PFI) last Saturday in the Alappuzha district.
12. Kerala High Court Grants Bail To Ex- MLA PC George In Hate Speech Cases
Case Title: P.C. George v. State of Kerala.
Citation: 2022 LiveLaw (Ker) 247
The Kerala High Court on Friday granted bail to Ex- MLA PC George in both hate speech cases. Justice Gopinath has allowed the petitions filed by P.C George with respect to two cases registered by Kerala Police, for alleged anti-Muslim statements made at two separate events held at Thiruvananthapuram and Ernakulam respectively.
Also Read: PC George Seeks Regular Bail In Hate Speech Case, Kerala High Court To Consider Today
Other Significant Developments
Case Title: Vijay Babu v. State of Kerala & Anr.
The Kerala High Court orally asked Malayalam actor-producer Vijay Babu to produce his return tickets to India so that it can hear him and consider his plea for anticipatory bail in the case where an actress accused him of sexually exploiting her. Justice Gopinath P. orally directed the actor to make himself available to the jurisdiction of the court.
14. Children Being Forced To Voice Provocative Slogans. Is It Legal?": Kerala High Court
The Kerala High Court on Monday expressed concerns about children being used in political and religious rallies and made to raise provocative slogans. A single bench of Justice P Gopinath wondered if using children for such activities was legal. The bench shared these concerns while adjudicating upon a group of cases involving minors and offences under the Protection of Children from Sexual Offences Act and opined that steps must be taken in favour of this goal.
Case Title: X v. State of Kerala & Ors.
Justice Kauser Edappagath of the Kerala High Court on Tuesday morning recused from hearing the petition moved by the survivor actress in the 2017 actor sexual assault case raising serious allegations against the State and the trial court judge, suspecting foul play in the ongoing investigation in the 2017 actor assault case. Reports suggest that the survivor had sought for the case to be listed under a different Bench before the Registrar yesterday, yet the case was listed to be adjudicated by Justice Edappagath. When the matter was mentioned, the judge recused from hearing the case.
16. [K-Rail] SIA Conducted Via Digital Means, No More Survey Stones: State Informs Kerala High Court
Case Title: Muralikrishnan v. State of Kerala & connected matters
The Kerala High Court was informed by the State on Tuesday that the practice of placing survey marks has been done away with and the social impact assessment (SIA) for the K-rail project was being conducted through digital methods such as geo-tagging wherever the people take objection to lay survey stones for the survey. Justice Devan Ramachandran recorded this submission and observed that the endeavour of the court that it has been attempting to achieve so far through this litigation has now begun to bear fruit even without directions being issued.
Case Title: P.C. George v. State of Kerala
Senior politician P.C George has moved the Kerala High Court challenging the order passed by the Thiruvananthapuram First Class Judicial cancelling his bail granted in the first hate speech case. The case pertains to a speech delivered at a programme organised as part of the Ananthapuri Hindu Maha Sammelan, where he alleged that tea adulterated with drugs was sold to non-Muslims in Muslim-run restaurants to turn people infertile in a bid to seize control of the country. The former MLA had also urged the audience to boycott institutions and restaurants run by Muslims.
18. Actor Assault Case: Kerala High Court Grants Time To Government To File Statement
Case Title: X v. State of Kerala & Ors.
The Kerala High Court on Friday granted time to the government to file a statement in the plea moved by the survivor in the 2017 actor sexual assault case where she raised serious allegations against the State and the trial court judge, suspecting foul play in the ongoing investigation in the case. The matter was listed before Justice Ziyad Rahman where the state sought time to file a statement. Earlier this week, the matter was listed before Justice Kauser Edappagath, but the Judge had recused from hearing the matter upon the petitioner's request. The case was accordingly listed before Justice Rahman on the next day.
Madras High Court
NOMINAL INDEX
1. S.S.S Prahalathan v. The Secretary and others, 2022 LiveLaw (Mad) 222
2. The Manager, TATA AIG General Insurance Co Ltd v. Kathamuthu and another, 2022 LiveLaw (Mad) 223
3. Amutha v. The Additional Principal Secretary and others, 2022 LiveLaw (Mad) 224
4. Ganapathy and others v. State represented by Inspector of Police, 2022 LiveLaw (Mad) 225
5. C Shamilakumari v P Chandrasekar, 2022 LiveLaw (Mad) 226
6. M/s. LG Electronics India Pvt Ltd v. The State of Tamil Nadu and Another with connected cases, 2022 LiveLaw (mad) 227
REPORTS
Case Title: S.S.S Prahalathan v. The Secretary and others
Citation: 2022 LiveLaw (Mad) 222
The Madras High Court bench of Justice SM Subramaniam has held that a resignation shall not entail forfeiture of past service if it has been submitted with proper permission to take up another Government appointment, where service qualifies. In such circumstances, the period of service in the previous employment shall be taken into consideration for calculating the pension benefits under Tamil Nadu Pension Rules, 1978.
The court agreed with the submission of the petitioner and was satisfied that the petitioner had obtained proper permission as contemplated under the Rules. The Board was aware that the petitioner had obtained permission and participated in the process of selection. Therefore, the resignation cannot be considered as an independent resignation and it is to be considered as consequential to the permission granted by the TWAD Board. Thus, it would not attract forfeiture of services under Rule 23, but falls under proviso to Rule 23(1) of the Rules.
Case Title: The Manager, TATA AIG General Insurance Co Ltd v. Kathamuthu and another
Citation: 2022 LiveLaw (Mad) 223
The Madras High Court has held that the compensation for medical expenses is a matter of reimbursement and hence once the insurance company has chosen to compensate the victim of road accident for medical expenses, the same cannot be once again claimed under the Motor Vehicles Act. The bench of Justice Teeka Raman thus held that the amount paid to the hospital directly by the insurance company under a medical policy coverage shall be deducted by the Motor Accident Tribunal while calculating the compensation to the injured.
The court observed that what has not been paid by the original petitioner to the hospital cannot be granted as compensation in a claim under the Motor Vehicles Act. Thus, the court deducted the amount already paid by the insurance company and directed the appellant company to pay the remaining along with compensation for disability, pain and suffering, permanent disability loss of income etc together with an interest of 7.5% per annum
Case Title: Amutha v. The Additional Principal Secretary and others
Citation: 2022 LiveLaw (Mad) 224
The Madras High Court has expressed concern over the growing "trend" of filing writ petitions in High Court against the public officials, more specifically, Police officials, whenever a criminal case is registered against some persons. A bench of Justice SM Subramaniam observed that this trend should not be encouraged and whenever any litigant faces ill-treatment in a Police Station, a representation should first be made to the Higher Officials. The Higher Officials shall accept the representation if there are grounds and shall conduct an enquiry.
Case Title: Ganapathy and others v. State represented by Inspector of Police
Citation: 2022 LiveLaw (Mad) 225
Condemning the act of the Karaikudi Bar Association in passing a resolution stating that no one shall represent certain accused in a case, Justice K Murali Shankar of the Madras High Court held that such a resolution is illegal; and null and void and the same shall have no force of law. Even in instances where there has been an attack on advocates, the same should be condemned sternly and the attackers should be dealt with with iron hands. But even so, the bar association is not expected to pass such resolutions, violating the constitution and the law of the and declared by the Supreme Court.
The court observed that such resolutions are against professional ethics. Whenever a client was ready to pay the fee, if the lawyer was not engaged otherwise, it was his professional duty to not refuse a brief. It is against the great traditions of the Bar which has always stood up for defending persons accused of a crime. Such a resolution is, in fact, a disgrace to the legal community.
5. Delay In Deciding Custody Cases May Prolong Harassment Of Minor Children: Madras High Court
Case Title: C Shamilakumari v P Chandrasekar
Citation: 2022 LiveLaw (Mad) 226
The Madras High Court has observed that while dealing with matters relating to custody of minor children under the Guardians and Wards Act, the Courts have a duty to ensure that minor children are protected and their interests, vision and wishes are preserved to the maximum possible extent, giving them a better life.
A Bench of Justices SM Subramaniam and Sathya Narayana Prasad observed that matters of custody of minor children have to be decided expeditiously by the courts. If the decision of the court is delayed, it may lead to prolonged harassment of the minor children.
The court also observed that today's younger generation is wise and intelligent and can assess human behaviors. Hence, when the children are left in a lurch by the father and mother, the minor children have to be enquired and the veracity of the statement made by them has to be assessed in a proper manner to arrive at a conclusion in the interest of children.
6. Madras High Court Upholds Validity Of Section 6 Of The Tamil Nadu Value Added Tax Act 2006
Case Title: M/s. LG Electronics India Pvt Ltd v. The State of Tamil Nadu and Another with connected cases.
Citation: 2022 LiveLaw (mad) 227
The Madras High Court recently upheld the validity of amendments made to Section 6 of The Tamil Nadu Value Added Tax Act, 2006. The court observed that in matters relating to tax, the interest of the State must be considered as against the interest of certain individuals. The court also discussed the power of the legislature in taking decisions with respect to tax "The hardship that is caused to individuals seldom matters as validity of any fiscal enactment ought to be tested on the basis of generality of its operation and not on the basis of few individual cases".
Justice R Mahadevan and Justice Mohammed Shaffiq also held that the assessment orders made under the Act could not be challenged in the writ petitions and should be challenged through the remedy of appeal under Section 51 of the Tamil Nadu Value Added Tax act 2006.
OTHER DEVELOPMENTS
Case Title: Raaj Kamal Films International v. Bharat Sanchar Nigam Ltd and others
Case No: OA 295 of 2022 in CS (Comm Div) 100/2022
Justice C Saravanan of the Madras High Court on Thursday granted an interim injunction restraining a series of Internet Service Providers and over 1,300 websites from unauthorizedly displaying or exhibiting the upcoming cinematographic film "Vikram", directed by Lokesh Kanagaraj and starring Kamal Haasan, Vijay Sethupathi, and Fahadh Faasil among others. The film is set to hit the theatres on June 3. The petition was filed by Raaj Kamal Films International, who are the producers of the film, seeking an interim injunction restraining the respondents/ defendants from infringing the copyrighted cinematographic work.
Orissa High Court
Nominal Index:
1. Dr. Minaketan Pani v. State of Orissa, 2022 LiveLaw (Ori) 81
2. Krushna Prasad Sahoo v. State of Orissa & Ors., 2022 LiveLaw (Ori) 82
3. Chittaranjan Mohanty v. State of Odisha & Ors., 2022 LiveLaw (Ori) 83
4. Lasyamayee Mohanta v. Union of India & Ors., 2022 LiveLaw (Ori) 84
5. Rabindra Panigrahi v. State of Odisha & Ors., 2022 LiveLaw (Ori) 85
6. Sashibhusan Das v. Lord Lingaraj Mahaprabhu & Anr., 2022 LiveLaw (Ori) 86
7. M/s. JSW Steel Ltd. Versus Union of India, 2022 LiveLaw (Ori) 87
8. Ugrasen Sahu v. State of Odisha & Ors., 2022 LiveLaw (Ori) 88
9. Sovakar Guru v. State of Odisha & Ors., 2022 LiveLaw (Ori) 89
10. Kantaro Kondagari @ Kajol v. State of Odisha & Ors., 2022 LiveLaw (Ori) 90
11. Dulamani Patel v. State of Odisha & Ors., 2022 LiveLaw (Ori) 91
12. Varsha Priyadarshini v. Government of India & Ors., 2022 LiveLaw (Ori) 92
Judgments/Orders Reported This Week:
Case Title: Dr. Minaketan Pani v. State of Orissa
Citation: 2022 LiveLaw (Ori) 81
In a landmark decision, the Orissa High Court has held that honourable exoneration in departmental proceedings would warrant quashment of criminal prosecution which emanated from the same set of facts. While quashing criminal charges against the petitioner, a Single Judge Bench of Chief Justice Dr. S. Muralidhar held, "…in the facts and circumstances of the present case where on the same charges on which the Petitioner is facing criminal trial he has been honourably exonerated in the departmental proceedings, the Court adopts the reasoning of the decisions in Radheyshyam Kejriwal v. State of West Bengal (supra) and Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI (supra) and sets aside the impugned order dated 15th January 2009, passed by the Sub-Divisional Judicial Magistrate (S) Cuttack in G.R. Case No.1057 of 2007."
Case Title: Krushna Prasad Sahoo v. State of Orissa & Ors.
Citation: 2022 LiveLaw (Ori) 82
The Orissa High Court has expressed deep concerns on the issue of the mental health of prisoners. On knowing that there exists only one psychiatrist to attend all prisoners in the state with mental illness, a Division Bench of Chief Justice S. Muralidhar and Justice R.K. Pattanaik noted, "This situation is unsustainable considering that it is physically impossible for just one psychiatrist to attend to all prisoners with mental illnesses."
The development came in an ongoing case in which the High Court had previously directed the Director-General, Prisons, to ensure food, hygiene, and health facilities in all the jails/sub-jails of the State. It had also directed all the District Legal Services Authorities (DLSAs) to inspect the above-noted basic amenities in all the prisons and sub-jails of Odisha. In an earlier order, the District Magistrates were directed to visit the jails using the prison inspection format prepared by Commonwealth Human Rights Initiative, New Delhi (CHRI). Based on the reports of these visits, the OSLSA submitted that there are at least 286 prisoners with mental illnesses in the various jails and sub-jails. The Director General, Prisons anticipated that this number may be even higher and around 500 prisoners. The Court expressed deep concern on the submission that there is just one psychiatrist who caters to the needs of all prisoners in the State. The Court also touched on the issues of overcrowding, Prison Development Board, segregation of prisoners, and other concerns.
3. Orissa High Court Issues Directions To Govt For Improving Public Healthcare Facilities In State
Case Title: Chittaranjan Mohanty v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 83
The Orissa High Court recently held hearing on a holiday (21st May 2022) to review the lacunae in the Public Healthcare Facilities of the State. It also issued a slew of directions to the State Government for improvement of conditions in the government hospitals. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik expresses serious disappointment over unavailability of basic medical facilities and observed,
"Nearly six months have been elapsed since the visits were undertaken by the teams of the DLSAs. The Court finds from the reports submitted by them that in many of the districts urgent corrective action requires to be taken. In many DHHs, CHCs and PHCs not all the doctors shown on the rolls of the facility were present; in many no nurses were found and staff were absent. Lack of cleanliness is a major issue as are lack of functional, clean toilets. Even the availability of clean drinking water is a big problem. In many places the registers for stocks of drugs were either not available or not properly maintained. It is a matter of concern that, in many of the DHHs, CHCs and PHCs ambulances were not available."
Case Title: Lasyamayee Mohanta v. Union of India & Ors.
Citation: 2022 LiveLaw (Ori) 84
The Orissa High Court has directed the Union of India to make all arrangements, including financial and travelling provisions, for the Indian Under-18 Women's Volleyball Team to participate in the 14th Asian Women's Volleyball Championship, which is scheduled to be held in June at Nakhon Pathom city of Thailand. While expressing serious dismay at the inaction of the Union of India in this respect, a Single Judge Bench of Justice Biswanath Rath observed,
"It is at this stage, this Court also considers the prestige of the Country involved herein. A Country having 175 crores of people even and at its position, if it fails in sending the contingency already selected to participate in the prestigious event like the 14th Asian Women's U-18 Volleyball Championship, will not send a good signal. This Court finds, the Union of India is even not coming to assist the Court for involving a contest at their level. This Court records the bizarre affair in the cooperation of O.Ps. 1 & 2 in such serious matter in spite of two adjournments already granted."
Case Title: Rabindra Panigrahi v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 85
The Orissa High Court has recently rejected the plea of a candidate who challenged the evaluation process of the examination conducted for appointment of contractual Hindi teachers in government secondary schools. While dismissing the writ petition, the Single Bench of Justice Sanjeeb Kumar Panigrahi observed,
"The court needs to see what is legally possible and not what possibly dehors the legal process. A thing that may seem plausible on the grounds of natural justice, may not be possible legally. As succinctly put by Mathew, J. in his judgment in the Union of India v. M.L. Kapur, "it is not expedient to extend the horizon of natural justice involved in the Audi alteram partem rule to the twilight zone of mere expectations, however great they might be."
Case Title: Sashibhusan Das v. Lord Lingaraj Mahaprabhu & Anr.
Citation: 2022 LiveLaw (Ori) 86
The Orissa High Court has clarified that an unlawful possession of a property, which does not bestow any right, cannot be defended only on the ground that the legislation, which authorises eviction, is prospective in nature. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held,
"A lawful right is always protected and cannot be taken away by an amendment brought into force at a later point of time. However, it does not mean that an unlawful possession which does not convey any right can still be defended on the ground that the Act to be prospective in nature. Unless, a possession is shown to be lawful, it has to be treated as unlawful as on the date when the amended Act came into force. Furthermore, it has to be treated as continuous wrong so long as the possession is unauthorized."
7. ITC Transfer From One State To Another Is Not An Inward Supply: Orissa High Court
Case Title: M/s. JSW Steel Ltd. Versus Union of India
Citation: 2022 LiveLaw (Ori) 87
The Orissa High Court bench of Justice Jaswant Singh and Justice M.S. Raman has ruled that an input service distributor (ISD) can claim ITC only in the case of an inward supply, and an ITC transfer from one state to another is not an inward supply. "Since no such supply being shown to have been made by JSW Steel Ltd. of Odisha to JSW Steel Ltd. of Maharashtra, no prima facie case is made out by the Petitioner. The transactions in question prima facie amount case are made out by the Petitioner. Thus, transactions in question prima facie amount to syphoning of tax amounts, therefore, apparently warrant invocation of proceeding under Section 74 of the OGST/CGST Act", the court observed.
Case Title: Ugrasen Sahu v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 88
The Orissa High Court has held that applications of employees to change their date of birth should not be entertained when they apply for the same at the fag end of their service career. A Single Judge Bench of Justice Sanjeeb Kumar Panigrahi observed, "Apart from the notification and the said guidelines, the Hon'ble Supreme Court in a series of cases have categorically laid down that the employees should not be permitted to change the date of birth at the fag end of their service career. In the instant case the application of alteration has been filed at the fag end of the Petitioner's service career."
Case Title: Sovakar Guru v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 89
The Orissa High Court has held that entitlement of an employee or an ex-employee to his salary or pension, as the case may be, is an intrinsic part of his right to life under Article 21 and right to property under Article 300A of the Constitution. While allowing payment of interest on the arrears of a retired government employee, a Single Bench of Justice Sanjeeb Kumar Panigrahi observed,
"Moreover, the employees cannot be allowed to suffer because of inaction on the part of the employer for no fault of the employees. The employee is definitely entitled to get the payment as per the service conditions on due dates and/or in a given case within reasonable time. The employees, had the payment received within time and/or on due dates, could have utilised the same for various purposes."
Case Title: Kantaro Kondagari @ Kajol v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 90
The Orissa High Court has recently ordered grant of family pension to a transwoman, who was allegedly discriminated on the basis of her gender while allowing pensionary benefits after the death of her parents. A Single Bench of Justice Aditya Kumar Mohapatra held,
"…this Court is of the considered view that the petitioner as a transgender has every right to choose her gender and accordingly, she has submitted her application for grant of family pension under Section 56(1) of Odisha Civil Services (Pension) Rules, 1992. Further such right has been recognized and legalized by judgment of the Hon'ble Apex Court in NALSA's Case (supra) and as such, the law laid down by the Hon'ble Supreme Court is binding on all."
Case Title: Dulamani Patel v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 91
The Orissa High Court has recently denied the prayer made by a government employee who insisted to get promoted to a post situated at a particular place. It held that no government employee has a legal or statutory right to claim a post of one particular place and thereby avoiding transfers. While, dismissing the writ petition, a Single Judge Bench of Justice Sanjeeb Kumar Panigrahi observed,
"The Petitioner's prayer insofar as promoting and repositioning him in the school where he was continuing or at a nearby place, is unsustainable as the Petitioner was holding a transferable post and under the conditions of service applicable to him, he was liable to be transferred and posted at any place within the State of Odisha. The Petitioner had no legal or statutory right to insist for being posted at one particular place."
Case Title: Varsha Priyadarshini v. Government of India & Ors.
Citation: 2022 LiveLaw (Ori) 92
A Vacation Division Bench of the High Court comprising of Justice Bibhu Prasad Routray and Justice Mruganka Sekhar Sahoo recently ordered Member of Parliament (MP) from Kendrapara and Odia actor Anubhav Mohanty to refrain from making any video/comment against his wife and actor Varsha Priyadarshini in any media, including social media during the pendency of their divorce proceedings. A similar direction has been passed against his wife. Varsha Priyadarshini had recently approached the High Court against her husband, alleging that he is maligning her image by making a series of videos and releasing them on YouTube.
Other Development(s):
The Orissa High Court, by using its power under Section 122 of the Code of Civil Procedure, 1908, had published the draft of the Code of Civil Procedure (Odisha Amendment) Rules, 2022, on 20th April 2022, after obtaining due approval from the State Government. Such publication invited objections and suggestions from all persons who were likely to be affected thereby. After expiration of 30 days of the publication of the same, it disposed of the suggestions and objections those were received and thereafter, in exercise of the power conferred by Section 127 of the Code, the High Court published the Rules in the official Gazette to amend the Code of Civil Procedure, 1908, which will be known as the Code of Civil Procedure (Odisha Amendment) Rules, 2022. It brought about 'nine changes' in the provisions of the Code.
Patna High Court
Case Title: Rajballabh Yadav Vs State of Bihar
Citation: 2022 LiveLaw (Pat) 17
The Patna High Court has rejected an interlocutory application under Section 389(1) CrPC for suspension of sentence moved by ​​ex- MLA Rajballabh Yadav, who is serving life sentence in the rape case of a minor. The application was moved during the pendency of appeal against the conviction order. A division bench of Justice Ashwani Kumar Singh and Justice Harish Kumar ordered, "Regard being had to the gravity of the offence, the role played by the appellant, an ex-MLA, in the commission of the offence upon a minor girl and the person against whom there is a lessor charge has been refused bail by this Court, we are not inclined to grant bail at this stage." The accused Rajballabh Yadav has been convicted for the offences punishable under Sections 376 of the Indian Penal Code and Sections 4 and 8 of the Protection of Children from Sexual Offences Act and sentenced to undergo imprisonment for life. The trial court has not awarded any separate sentence for the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act.
Case Title: Rajendra Prasad alias Dr. Rajendra Prasad, Former Vice Chancellor, Magadh University Vs Vigilance Investigation Bureau, State of Bihar
Citation: 2022 LiveLaw (Pat) 18
The Patna High Court has refused to quash the FIR registered against former Vice Chancellor (VC) of Magadh University Rajendra Prasad alias Dr. Rajendra Prasad in connection with a corruption case. Justice Ashutosh Kumar also dismissed his plea for anticipatory bail and ordered, "If the petitioner surrenders before the Special Court and makes an application for bail, the petition shall be considered on its merits without prejudice to any remarks made in this order." "The reasons for prosecuting the petitioner is that such purchases worth several crores were made by adopting a procedure, which was arbitrary and with the sole purpose of getting undue advantage to himself. There was no requisition or tender and that the materials, in derogation of the financial rules, were not procured through GEM. No procedural formalities were complied with, despite the petitioner being apprised of such requirements," the Court noted in its order.
Case title - The National Highway Projects in the State of Bihar v. State of Bihar and others
Citation: 2022 LiveLaw (Pat) 19
In a significant observation, the Patna High Court earlier this month underscored that right to sanitation has been virtually accepted as fundamental rights like the right to water, the right to health, the right to healthy environment, the right to education, and the right to dignity directly related to right of sanitation. With this, the Bench of Chief Justice Sanjay Karol and Justice S. Kumar asked the State, National Highways Authority of India, and the Oil Marketing Companies to consider constituting Public toilets and public conveniences on highways across the state. The bench stressed upon the obligation of the part of the State (all stakeholders) in establishing sufficient facilities for sanitation and personal care on the Highways, be it on the Petrol Pumps or otherwise. Essentially, the Court was dealing with a case concerning the National Highway Projects in the State of Bihar, and in this very case, the Court had already directed the concerned authorities and stakeholders to make available public conveniences on the Highways, more so the National Highways, and to set up Petrol Pumps having such facilities.
Nominal Index
Paro and others v. Mahindo 2022 LiveLaw (PH) 111
Simarjit Kaur @ Simerjeet Kaur @ Simarjeet Kaur versus Maninder Kaur 2022 LiveLaw (PH) 112
Rakesh Khanna @ Babbu v. Gulzari Lal and Others 2022 LiveLaw (PH) 113
Ankush Rawat v. Guru Nanak Education Trust and Another 2022 LiveLaw (PH) 114
Novex Communications Private Limited v. Union of India and another2022 LiveLaw (PH) 115
Amit v. State of Haryana and Others 2022 LiveLaw (PH) 116
Mahavir singh v. Uttar Haryana Bijli Vitran Nigam Limited and others 2022 LiveLaw (PH) 117
Vasu Syal v. State of Punjab 2022 LiveLaw (PH) 118
Parveen Mehta Versus Vishal Joshi 2022 LiveLaw (PH) 119
Rinku Singh Versus Union of India2022 LiveLaw (PH) 120
Munshi Ram versus Vidya Devi and Another 2022 LiveLaw (PH) 121
Case Title : Paro and others v. Mahindo
Citation: 2022 LiveLaw (PH) 111
Punjab and Haryana High Court while dealing with a petition against the order passed by the learned Additional Civil Judge (Sr. Divn.), Ferozepur via which petitioner's defense was struck off, held that the provisions of Order 8 Rule 1 of the CPC are directory in nature, however, the Courts must exercise their discretion to condone the delay in filing the written statement after exercising due circumspection and if it appears that the defendant has attempted to engage in dilatory tactics, the Courts should nip the same unhesitatingly. "The provisions of Order 8 Rule 1 of the CPC no doubt are directory in nature, however, at the same time the Courts must exercise their discretion to condone the delay, if any, in filing the written statement after exercising due circumspection and in case there appears to be an attempt on the part of the defendant to engage in dilatory tactics, the Courts should nip the same unhesitatingly", the Court observed. The bench comprising Justice Manjari Nehru Kaul while allowing the petition, noted that the petitioners were granted four opportunities to file their written statement, however, they failed to do so.
Case Title: Simarjit Kaur @ Simerjeet Kaur @ Simarjeet Kaur versus Maninder Kaur
Citation: 2022 LiveLaw (PH) 112
Punjab and Haryana High Court while dealing with a revision petition filed under Article 227 of the Constitution of India challenging the order of the Trial Court which instead of adjourning the case for plaintiff's evidence, fixed it inadvertently for rebuttal evidence, held that the plaintiff-respondent cannot be deprived of her valuable right of leading evidence in the affirmative on issues the onus of which was cast upon her, merely because the Court made a mistake while adjourning the matter. "Merely because an inadvertent mistake was caused by the Court while adjourning the matter the plaintiff-respondent cannot be deprived of her valuable right of leading evidence in the affirmative on issues the onus of which was cast upon her", the Court observed. The bench comprising Justice Alka Sarin was dealing with the instant revision petition challenging the order whereby the application filed by the defendant-petitioner for rejection of the affidavit of the witness named Narjit Singh Dhillon was dismissed.
Case Title : Rakesh Khanna @ Babbu v. Gulzari Lal and Others
Citation: 2022 LiveLaw (PH) 113
Punjab and Haryana High Court while dealing with a revision petition under Article 227 of the Constitution of India against the order vide which the application preferred by the defendant no.1 (petitioner) under Order VII Rule 11 of the Code of Civil Procedure, 1908 in a suit for declaration of title was dismissed, held that at the time of contesting the application under Order VII Rule 11 CPC only the contents of the plaint are to be seen and not the contents of the application or any other pleadings. The bench comprising Justice Alka Sarin observed, "It is trite that at the time of contesting the application under Order VII Rule 11 CPC only the contents of the plaint are to be seen and not those of the application under Order VII Rule 11 CPC or any other pleadings."
4. Parties Are Bound By Statements Made By Their Counsel In Court: Punjab & Haryana High Court
Case Title : Ankush Rawat v. Guru Nanak Education Trust and Another
Citation: 2022 LiveLaw (PH) 114
The Punjab and Haryana High Court has reiterated that parties are bound by the statements made by their counsel in Court. The observation was made while disallowing a review application filed against an order on the ground of an 'error apparent'. The bench comprising Justice H.S. Madaan held that the counsel for the applicant had not been able to point out any error apparent on the face of the record and therefore, the applicant was trying to resile from the statement made by the earlier counsel and to re-argue the matter on merits, which is not permitted in law. It noted that the instant review application has been filed by the counsel who was neither the filing counsel nor the arguing counsel nor was he present at the time of passing of the impugned order.
Case Title: Novex Communications Private Limited v. Union of India and another
Citation: 2022 LiveLaw (PH) 115
While quashing a public notice/letter exempting use of copyrighted sound recordings in marriage functions from liability, the Punjab and Haryana High Court recently held that the executive has no authority under the Copyright Act to clarify or interpret the applicability of the law through public notices. Thus, the executive cannot take away the right of a copyright owner to initiate proceedings for infringement of copyright. Justice Raj Mohan Singh observed that such public notice is also violative of the Doctrine of Separation of Power as it would lead to the executive usurping the legislative power of enactment and the judicial power of interpretation. The public notice also infringes the right of a copyright holder under Articles 13, 14 and Article 19(1) (g) of the Constitution of India. It seeks to abridge the protection granted by the copyright Act which is unsustainable, the Court said.
Case Title: Amit v. State of Haryana and Others
Citation: 2022 LiveLaw (PH) 116
The Punjab and Haryana High Court recently observed that Section 482 of CrPC confers extraordinary powers on High Court and empowers it to entertain applications not contemplated in the Code of Criminal Procedure, in case the ends of justice require. The Court observed, "This section gives the power to this Court to entertain applications which are not contemplated in the Code of Criminal Procedure, in the event, it is felt that the ends of justice will require that the Court can invoke the extraordinary powers which are to be exercised with restraint and not lightly." The bench comprising Justice Vivek Puri further held that when the Court is satisfied that its interference under inherent powers is required to meet the ends of justice, it ought to exercise such powers. The Court further added that inherent power vested under Section 482 should not be invoked as a matter of routine and it should only be invoked to prevent the abuse of the process of the Court and to secure the ends of justice.
Case Title : Mahavir singh v. Uttar Haryana Bijli Vitran Nigam Limited and others
Citation: 2022 LiveLaw (PH) 117
Punjab and Haryana High Court recently allowed a writ petition whereby an employee of the Uttari Haryana Bijli Vitran Nigam had sought that the daily wage service rendered by him till his services were regularized should be taken into consideration for computing his pensionary benefits. The bench comprising Justice Harsimran Singh Sethi held the Punjab Civil Services Rules, 1970 have been adopted by the respondent-Nigam and according to Rule 3.17 of the said rules, daily wage services rendered by an employee prior to his/her regularization is to be treated as qualifying service for computing his/her pensionary benefits. It further noted that though the petitioner's services were terminated in the year 1982, the same was held to be bad by a Labour Court and the Petitioner was reinstated in service with back wages. Therefore, he is entitled to the benefit of counting his daily wage service as qualifying service for computing his pensionary benefits.
Case title - Vasu Syal v. State of Punjab
Citation: 2022 LiveLaw (PH) 118
The Punjab and Haryana High Court on Tuesday granted bail to a man arrested over an alleged inappropriate comment against Shri Guru Nanak Dev Ji and his father which was offensive to the followers of the Sikh Religion. The Bench of Justice Harinder Singh Sidhu granted bail to one Vasu Syal as it noted that he is under custody since November 2021 and the investigation in the case is complete and challan has been filed. The Court also noted that the offences alleged are punishable with imprisonment of upto three years and there is no apprehension that the petitioner may evade or otherwise interfere with the trial. Essentially, an FIR in the matter was lodged on the complaint of one Parvinder Singh alleging that one Anil Arora runs a page on Facebook wherein he has been uploading posts and messages on social and religious issues which instigates and causes division in Hindu-Sikh unity. Noting that the petitioner is in custody since November 13, 2021, the investigation in the case is complete and a challan has been filed and the offences alleged are punishable with imprisonment upto three years, the Court granted him bail on his furnishing bail/surety bonds to the satisfaction of the Trial Court/Duty Magistrate concerned.
Case Title: Parveen Mehta Versus Vishal Joshi
Citation : 2022 LiveLaw (PH) 119
Punjab and Haryana High Court while dealing with an application under Section 378(4) Cr.P.C. for grant of leave to appeal against the judgment acquitting respondent in Complaint Case of 2012, held that undisputed signatures of the respondent on the cheque in itself are not sufficient for conviction under Section 138 of the Act. The undisputed signatures of the respondent on the cheque in itself is not sufficient for conviction under Section 138 of the Act. The bench comprising Justice Avneesh Jhingan while dismissing the application held that one of the ingredients under Section 138 of the Act is that the cheque was issued for discharge of a debt or other liability.
Case Title: Rinku Singh Versus Union of India
Citation : 2022 LiveLaw (PH) 120
Punjab and Haryana High Court while dealing with a prayer for grant of anticipatory bail in NCB Crime case filed under provisions of NDPS Act, 1985 to the accused-petitioner who was involved in the smuggling of Commercial quantity of Heroin from Pakistan to India, held that based on the reply submitted by the NCB, the role and active involvement of the petitioner is apparent. Therefore, no ground is made out for the grant of anticipatory bail to the petitioner. The bench comprising Justice Harinder Singh Sidhu observed, "From the reply aforesaid, the role and active involvement of the petitioner is apparent. In view thereof, no ground is made out for grant of anticipatory bail to the petitioner." After analyzing the submission of the counsel for the petition and the reply submitted by the NCB, the court concluded that the present petitioner was actively involved in the conspiracy of transporting a commercial quantity of contraband from Pakistan to India and dismissed the appeal without granting the relief of anticipatory bail.
Case Title: Munshi Ram versus Vidya Devi and Another
Citation: 2022 LiveLaw (PH) 121
The Punjab and Haryana High Court has held that it cannot embark on a roving and fishing enquiry to assist a party to collect evidence. The remarks were made while dealing with a revision petition under Article 227 of the Constitution of India against the order of the Rent Controller whereby the application for directing the respondents-landlord to produce relevant documents in their possession was dismissed. The bench comprising Justice Alka Sarin observed, "The present petition is nothing but an endeavour to embark on an endeavour not relevant to the matter in dispute. A Court would not embark on a roving and fishing enquiry in order to assist a party to collect evidence." The Court observed, "The relevance of the documents especially the income tax returns eludes this Court. It is trite that what is required in law is that the Court below should record its satisfaction as to whether the documents are necessary or not. In the present case a categoric observation has been made that the tenant-petitioner is trying to collect evidence through the process of the Court which cannot be allowed."
Rajasthan High Court
Nominal Index
Chandra Bhal Singh v. State Of Raj And Ors and connected matters.2022 LiveLaw (Raj) 169
Pradeep Kumar & Ors. v. State Of Rajasthan & Anr. 2022 LiveLaw (Raj) 170
Hemraj v. State of Rajasthan 2022 LiveLaw (Raj) 171
Mangal Das through LRS v. Amar Singh through LRS 2022 LiveLaw (Raj) 172
Fula @ Fulchand v. State Through PP 2022 LiveLaw (Raj) 173
Neha Mathur & Anr. v. Dr. Arvind Kishore with connected matter 2022 LiveLaw (Raj) 174
Gourav Sharma & Anr. v. Rajasthan Public Service Commission 2022 LiveLaw (Raj) 175
Judgments/ Orders of the Week
Case Title: Chandra Bhal Singh v. State Of Raj And Ors and connected matters.
Citation: 2022 LiveLaw (Raj) 169
The Rajasthan High Court, Jaipur has recently directed the State to ensure compliance of law and prevent illegal mining, encroachments etc. in the Forests, Wild Life Sanctuaries, Forest Reserves, Tiger Reserves, etc. situated at Ranthambore, Sariska, Nahargarh, Jhalana and other forest reserves. In a batch of writ petitions concerning the issue, the court noted that it is a very sorry state of affairs that the concerned authorities have not carried out their duties for the reasons best known to them, in spite of notification issued under the Indian Forest Act, 1927, Wild Life Protection Act, 1972 and other relevant Legislations.
Case Title: Pradeep Kumar & Ors. v. State Of Rajasthan & Anr.
Citation: 2022 LiveLaw (Raj) 170
The Rajasthan High Court has observed that the attempt of a complainant to get the civil dispute resolved by resorting to invoking jurisdiction of a criminal court amounts to abuse of the process of the court. In the present case, the court noted that the real dispute between the parties is prima facie of civil nature which cannot be adjudicated by a criminal court.
Justice Birendra Kumar, while allowing the petition filed by the accused and quashing the FIR and subsequent proceedings arising-therein, observed, "After hearing the learned counsel for the parties and considering the material on record, this Court is of the prima facie view that real dispute between the parties is of civil nature which cannot be adjudicated by a criminal court, hence the attempt of the complainant to get the civil dispute resolved by resorting to invoking jurisdiction of a criminal court amounts to abuse of the process of the Court."
Case Title: Hemraj v. State of Rajasthan
Citation: 2022 LiveLaw (Raj) 171
The Rajasthan High Court has granted bail to a murder accused after hearing his counsel's arguments contending that no one can be arrested simply on the basis of assumption, presumption and perception.
The appellant's counsel submitted that there is no eye-witness of the incident and the case of the prosecution is based on circumstantial evidence, however no circumstances are available except hearsay evidence. Placing reliance on Section 60 of the Indian Evidence Act, the appellant's counsel submitted that oral evidence of any incident must be direct in nature. She added that if it relates to a fact which could be seen, then it must be the evidence of that person who says that he saw the incident.
Case Title: Mangal Das through LRS v. Amar Singh through LRS
Citation: 2022 LiveLaw (Raj) 172
The Rajasthan High Court has observed that the basic object of the Rajasthan Rent Control Act, 1950 is to save the harassment of tenants from unscrupulous landlords. The court added that the said object may not be misconstrued to deprive the landlords of their bona fide properties for all times to come.
Justice Sudesh Bansal observed, "It may be noticed that the rent control legislation was entitled to strike a reasonable balance between the landlord and tenant. At one hand where the tenant requires adequate protection against his eviction at the hands of aggressive designed greedy landlord, at the same time rights of landlord also require protection to increase the rent reasonably and to evict tenant on the grounds permissible in law. The basic object of the Rent Control Act, 1950 is to save the harassment of tenant from unscrupulous landlords. The object of the Rent Control Act, 1950 may not be misconstrued to deprive the landlords of their bona fide properties for all times to come."
Case Title: Fula @ Fulchand v. State Through PP
Citation: 2022 LiveLaw (Raj) 173
On finding a contradiction between the eye-witness testimony and the medical evidence, the Jodhpur Bench of the Rajasthan High Court set aside the conviction under Section 302 IPC (Murder). Instead, it convicted the accused in Section 323 IPC (Voluntarily causing hurt).
A Division Bench of Justices Sandeep Mehta and Vinod Kumar Bharwani relied on Dunga Ram v. the State of Rajasthan and Jugut Ram v. the State of Chhattisgarh, in which the facts were similar, and the offence of murder was altered to one of voluntarily causing hurt. Under Section 374(2) of the Criminal Procedure Code, the appellants preferred an instant appeal challenging a judgment convicting the accused for offence under Section 302 of the Indian Penal Code. The accused-appellant was sentenced to life imprisonment with a fine of Rs. 10,000/-.
Case Title: Neha Mathur & Anr. v. Dr. Arvind Kishore with connected matter
Citation: 2022 LiveLaw (Raj) 174
The Rajasthan High Court on Thursday observed that merely the fact that the wife is earning would not dis-entitle her from claiming maintenance from her husband. The Court opined that the charge of desertion cannot become a ground so as to enable the husband to disqualify the wife from claiming the amount of monthly maintenance, in any manner whatsoever. Essentially, the marriage of the parties was solemnized on 27.05.2010 at Bikaner; thereafter, the couple went to reside in the USA. Out of the said wedlock, Master Anay (son) was born on 21.05.2011. On account of the alleged disharmony in their matrimonial relationship, the wife left her matrimonial home at USA on 13.11.2013 and came back to India alongwith the son. Later, the wife filed an application against the husband under Section 125 Cr.P.C. which was allowed by the trial court on 30.08.2018, while awarding a monthly maintenance to the wife and son, to the tune of Rs.50,000/- and Rs.20,000/- (totalling Rs.70,000/-).
Case Title: Gourav Sharma & Anr. v. Rajasthan Public Service Commission
Citation: 2022 LiveLaw (Raj) 175
The Rajasthan High Court has dismissed a batch of writ petitions alleging that the scaling formula for the recruitment exam for the post of Assistant Conservator of Forest and Forest Range Officer Grade-I as has been applied by the respondents-Rajasthan Public Service Commission, is improper and thereby results in huge and undue variation in the marks awarded in different subjects. The petitioners also alleged that the same adversely affected the final merit to be drawn on the basis of marks scaled. Moreover, the petitioner sought directions to the respondents to declare the result on the basis of raw marks.
Other Important Updates
The Rajasthan High Court has recently directed the State to ensure protection to a woman who accused Rajasthan PHED Minister Mahesh Joshi's son Rohit Joshi of rape. Reportedly, as per the FIR, the woman said, "When I called him, he said he is the son of a Minister and nobody can harass him...He brags about his money and power and at the end says that people won't even know where I have disappeared to. The Bhanwari Devi case will be repeated". The court has issued notice to respondents and has sought their response within two weeks.
Justice Birendra Kumar, observed, "Let the respondents file reply to the petition within two weeks. In the meanwhile, as an interim measure, respondents shall ensure protection of life and liberty of the petitioner."
Case Title: Arnab Goswami v. State Of Rajasthan
The Rajasthan High Court has extended the interim protection from arrest granted to news anchor Arnab Goswami in an FIR registered against him regarding broadcast of certain news on Republic Bharat regarding alleged temple demolition in Rajgarh. The court granted four weeks time to the Public Prosecutor to file a reply.
Essentially, the FIR was registered at Ambamata Police Station, Udaipur on 17.05.2022 against Arnab Goswami along with other persons of Republic Bharat under Sections 153A, 295A, 120B, 499, 501, 504 & 505 of the Indian Penal Code and other relevant sections of Information Technology Act, 200 read with N.S.A. Act. The FIR was registered pursuant to the news reporting conducted by Republic Bharat with regards to demolition of temple at Rajasthan. The FIR was based on the complaint filed by Congress Spokesperson Pawan Khera. In this regard, Arnab Goswami has moved to the High Court seeking quashing of the aforesaid FIR.
Case Title: Asharam @ Ashumal v. State Of Rajasthan
The Rajasthan High Court has granted last opportunity to the Public Prosecutor to file reply in Self-styled godman & Life convict Asaram Bapu's third application for suspension of sentence in minor rape case, to pursue medical treatment. Justice Sandeep Mehta and Justice Vineet Kumar Mathur, observed, "Learned Public Prosecutor has not filed reply. Last opportunity is granted to him for doing the needful."
Case Title: Maya Rathi v. ITO
Case No.: D.B. Civil Writ Petition No. 7495/2022
The Rajasthan High Court bench headed by Acting Chief Justice Manindra Mohan Shrivastava and Justice Sameer Jain has issued the notice to the government on a plea challenging the validity of the first proviso to section 148 of the Income Tax Act by granting arbitrary powers to the AO. The petitioner/assessee has filed this Writ Petition under Article 226 of the Constitution of India challenging the notice issued under clause (b) of Section 148A of the Income Tax Act, 1961. Firstly, on the grounds that, without conducting preliminary enquiry, which is a pre-requisite for the application under Section 148A of the Income Tax Act, 1961. Secondly, the reply of the petitioner has not been considered by the Assessing Officer in respect of the issuance of notice under Section 148.
Lastly, the proviso to Section 148 of the Act of 1961 was challenged because it has diluted the standard of test required on behalf of the Assessing Officer before issuing a notice under Section 148 of the Act of 1961. Section 148 vests the Assessing Officer with arbitrary powers to open assessments.
Case Title: Union Of India v. Manohar Lal
The Rajasthan High Court, Jaipur has stayed Central Administrative Tribunal (CAT), Jaipur's order which disposed of the Original Application of the Central government employees-respondents/ applicants and directed the petitioners-Union of India to grant one annual grade increment payable on 1st July to all applicants
Notably, the Union stated that the respondents/ applicants completing 6 months and above in the revised pay structure as on 1st July will be eligible to be granted the increment. It was added that since the respondents/applicants had retired from service on 30th June, they were not in service as on 1st July of their respective years.
Justice Pankaj Bhandari and Justice Anoop Kumar Dhand, while admitting the petition, observed, "The dispute pertains to grant of annual grade increment. As per the Division Bench Judgment of this Court in the case of Safi Mohd. & Ors. Vs. State of Rajasthan in D.B Civil Writ Petition No.6024/2021 decided on 01.12.2021, the increment is not payable, however, counsel for the respondent contends that the matter is pending for adjudication before the Hon'ble Apex Court. In view of the contentions raised, we deem it appropriate to stay the impugned order till the disposal of the writ petitions."
Telangana High Court
1. Arbitral Award Must Be In Accordance With The Terms Of The Contract: Reiterates Telangana High Court
Case Title: C. Srimannarayana versus Hindustan Petroleum Corporation Limited, SECBAD and Another
Citation: 2022 LiveLaw (Tel) 43
The Telangana High Court has reiterated that an arbitral award must be in accordance with the terms of the contract. The Bench, consisting of Justice P. Naveen Rao and Dr. Justice G. Radha Rani, quashed an arbitral award on the ground that the clauses of the contract were not properly construed by the Arbitrator and that it was a non-speaking order which was rendered without discussing the contentions raised by the claimant. The High Court observed that the petitioner had contended before the Arbitrator and the District Court that as per the relevant clause of the dealership agreement, the respondent company was bound to give time to the petitioner to remedy the breach of the covenants of the dealership agreement and that no such opportunity was given to him. The Court noted that the petitioner had averred that lapse of a considerable amount of time would amount to waiver of breach of the violations committed by the petitioner and hence the said dealership agreement could not be terminated by the respondent company. The Court observed that Arbitrator and the District Court had failed to address the said contentions raised by the petitioner. The Court ruled that the arbitral award was devoid of any reasons and the contentions of the claimant/petitioner were not answered by the Arbitrator. The Court thus held that the Arbitrator and the District Court failed to discuss the pleas taken by the petitioner with regard to waiver, estoppel and application of the relevant clause of the dealership agreement.
