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All High Courts Weekly Roundup [07 February- 13 February, 2022]
Shrutika Pandey
14 Feb 2022 8:15 AM GMT
Allahabad High Court 1. UP Power Corporation EPF Scam: Allahabad High Court Grants Bail To Prime Accused Parveen Kumar Gupta Case title - Parveen Kumar Gupta v. State Of U.P.Thru C.B.I./A.C.B. Lucknow Case citation: 2022 LiveLaw (AB) 37 The High Court granted bail to the former General Manager of Uttar Pradesh Power Corporation Limited and prime accused in the Corporation's EPF...
Allahabad High Court
1. UP Power Corporation EPF Scam: Allahabad High Court Grants Bail To Prime Accused Parveen Kumar Gupta
The High Court granted bail to the former General Manager of Uttar Pradesh Power Corporation Limited and prime accused in the Corporation's EPF Scam, Parveen Kumar Gupta.
The Bench of Justice Anil Kumar Ojha observed thus while hearing a 482 CrPC plea filed by the Husband, father-in-law, and mother-in-law of the victim, Seema seeking to quash the entire criminal proceedings arising out of the FIR that had been lodged against them under Sections 498A, 323, 506 I.P.C. and Section 3/4 of D.P. Act.
The High Court upheld the life sentence of a convict in a murder case that dates back to the year 2002 while stressing that there is no prohibition that the police personnel should not record dying declaration and that such a dying declaration is also admissible in evidence.
4. Criminal Appeal Can't Be Dismissed On The Ground Of 'Not Pressed': Allahabad High Court
The High Court observed that a Criminal Appeal cannot be dismissed on the ground of not being pressed.
The Bench of Justice Anil Kumar Ojha observed thus while allowing a revision plea filed against an order passed by Additional Sessions Judge under Section 101 of JJ Act dismissing an appeal filed by the accused/revisionist on the ground of not pressed.
The High Court granted anticipatory bail to a man named, Mohammad Kaif who has been accused of trying to incite religious sentiments by raising anti-national slogans during Anti-CAA protests.
The Bench of Justice Raj Beer Singh considered the settled principle of law regarding anticipatory bail along with the submissions of the counsel for the parties, nature of the accusation, the role of the applicant, and all attending facts and circumstances of the case, and opined that a case for anticipatory bail was made out.
The High Court refused to quash a First Information Report (FIR) registered over the circulation of a video on Facebook, wherein an anonymous Maulana was seen as saying that 'Hazrat Adam is the father of the Hindus'.
Having perused the contents of the FIR, the Bench of Justice Ashwani Kumar Mishra and Justice Ajai Tyagi found that prima facie a cognizable offence was disclosed in the same and in view of the law settled, the Court added, prayer for its quashing cannot be allowed.
The High Court granted bail to Ashish Mishra, the son of Union Minister Ajay Mishra 'Teni', who is the prime accused in the Lakhimpur Kheri Violence case. The Court noted that there might be a possibility that the driver (of Thar) tried to speed up the vehicle to save himself, on account of which, the incident had taken place.
Mishra is facing a case of Murder for an incident that took place on October 3, 2021, when four protesting farmers were killed after they were mowed down by an SUV, in which Mishra was allegedly sitting.
The High Court set aside the life sentence of a murder convict in a case that dates back to the year 1980, after concluding that the testimony of the sole eye witness in the case isn't reliable.
The Bench of Justice Manoj Misra and Justice Sameer Jain, in its analysis of the facts, circumstances, and evidence adduced in the case found that the testimony of the PWÂ1 (who accompanied the deceased just before the incident), who is the only eyewitness of the incident and thus, it didn't find it safe to rely on his testimony to uphold the conviction of the appellant.
Important Weekly Updates From the High Court/UP courts
Case title - Swale Raza v. State of U.P
The High Court slammed the Station House Officer of a police station in District Budaun as he 'passed an order' to hand over the custody of an adult woman (named Shivani Gupta) to another adult man (named Swale Raza).
The Bench of Justice Jahangir Jamshed Munir also sought a personal affidavit from SSP, Badaun in two days as the Court called it unpalatable as to how the custody of an adult could be given to another adult, and that too, by a Police Officer.
Case title - Rashida And 3 Others v. State Of U.P. And 5 Others
The High Court directed the Director General of Police, Uttar Pradesh to file an affidavit in the criminal writ petition filed seeking the registration of a First Information Report (FIR) in an alleged custodial violence case.
The Bench of Justice Anjani Kumar Mishra and Justice Deepak Verma ordered thus after hearing a criminal writ plea filed by one Rashida, Her Husband Mohd. Harun and their daughters, Shama Chauhan and Sonam Jahan.
Case title - Ashwani Kumar v. State of U.P. and Another
The High Court observed that in criminal cases arising out of matrimonial disputes, the Court has to be careful in summoning distant relatives without there being specific material against them.
The Bench of Justice Manju Rani Chauhan also remarked that Mere naming of distant relations in the First Information Report (FIR) is not enough to summon them in absence of any specific role and material to support such role.
Case title - Canara Bank/Assets Recovery Mgmt.Branch,Lko.Thru.Chief Manager Ajeet Kumar Srivastava v. Debts Recovery Tribunal Lucknow And 2 Others and connected petition
In a strongly worded order, the High Court lashed out at Central Government for its failure to make appointments to the vacant posts of Presiding Officer/Chairman of Debt Recovery Tribunals and Debt Recovery Appellate Tribunals.
The Bench of Justice Dinesh Kumar Singh even remarked that if the Government is unable to appoint competent persons as Presiding Officers/Chairmen in D.R.Ts./D.R.A.Ts., then it is better that enactment is scrapped and the tribunals are abolished.
Case title - Kiranpal @ Kinnu v. State of U.P.
The High Court directed the Senior Superintendent of Police, Bulandshahr to take appropriate action against the responsible officers who failed to serve the POCSO Accused bail application upon the victim/legal guardian as well as upon the CWC as per the directions issued by this Court in Junaid case.
It may be noted that in Junaid's case, the High Court had, inter alia, issued directions and a definite timeline for the disposal of bail applications under the POCSO Act, 2012.
The Court had also issued a direction to the police and the Child Welfare Committee (CWC) to inform the aggrieved/victim party on getting the notice of the bail application of the accused, inform them about their rights, provide legal services, etc.
Read more about the Junaid case here: Allahabad High Court Issues Directions & Timeline For Disposal Of Bail Applications Under POCSO Act, 2012
Case title - Akash Vashishtha v. State of UP
The High Court issued notices to the Election Commission of India, State of Uttar Pradesh, the Ministry of Environment, Forests and Climate Change, the Central Pollution Control Board, among others over a Public Interest Litigation (PIL) plea filed in connection with election plastic waste disposal during assembly elections.
The Bench of Justice Pritinker Diwaker and Justice Ashutosh Srivastava has also issued a notice to the Chief Electoral Officer, Uttar Pradesh, and the Uttar Pradesh Pollution Control Board on this plea, which primarily seeks an interim stay on the manufacture and use of PVC and other chlorinated plastic-based advertising products such as Banners/Hoardings/ Flexes/Signage's/ Flags or likes for the purpose of its use in UP Assembly Polls 2022.
7. Allahabad High Court Directs Second Autopsy Of The Body Of Kasganj Custodial Death Victim Altaf
Case title - Chand Miyan v. State Of UP And 5 Others
The High Court directed a second autopsy of the body of the Kasganj Custodial death Victim, Altaf by a team of doctors from the All India Institute of Medical Sciences, Delhi.
The Bench of Justice Anjani Kumar Mishra and Justice Deepak Verma was hearing the plea moved by Chand Miyan (father of the Altaf) seeking a CBI probe and second autopsy in the matter.
8. Allahabad High Court Issues Show Cause Notice To A Civil Judge For His Failure To Sign Order Sheet
Case title - Daya Agarwal v. The Court Of Civil Judge (Junior Division) Lucknow And Another
The High Court issued a show cause notice to the Presiding Officer of the Court of Civil Judge (Junior Division), South, Lucknow, asking him as to why the disciplinary proceedings be not initiated against him for not signing the order sheet.
The Bench of Justice Sangeeta Chandra directed the Civil Judge (Junior Division), South, Lucknow, Mr. Piyush Bharti to submit his explanation by the next date of listing i.e. March 28, 2022.
Case title - Ajay v. State Of U.P. Through Secretary Home
The High Court adjourned the hearing in a bail application as the counsel appearing for the petitioner refused to switch his camera on due to the fact that he wasn't in uniform.
The Bench of Justice Samit Gopal called it 'objectionable' and listed the matter for further hearing on March 15, 2022.
Essentially, the Counsel for the lawyer was connected through video conferencing and his camera is switched off. When he was directed to turn on his camera, he said that since he is not in the uniform and as such he cannot switch it on.
Andhra Pradesh High Court
Cause Title: Devu Poojitha v. State of Andhra Pradesh
Citation: 2022 LiveLaw (AP) 13
The Andhra Pradesh High Court in a recent writ petition observed that a candidate who is ineligible to appear in an entrance exam on the date of application, cannot take advantage of the University's improper verification of eligibility criteria and claim right to appear in the counselling round.
Justice U. Durga Prasad Rao observed, "the petitioner cannot claim any legitimate right for grant of a seat for the main reason that the petitioner having full knowledge about the eligibility criteria fixed in the entrance test notification and also knowing that she was over aged by 31.12.2021, still applied for entrance test. It is not a case of her acquiring disability on a subsequent turn of events."
Cause Title: Murarisetty Sai Baba Versus Ommina China Eswaraiah
Citation: 2022 LiveLaw (AP) 14
The Andhra Pradesh Court recently ruled that the any grievance relating to fixation of stamp duty and penalty would only be a revision before the Chief Controlling Revenue Authority under the Indian Stamp Act, 1899 and the trial court would have no role in the fixation of the stamp duty or penalty. The respondent had filed suit against the petitioner for eviction and recovery of damages for use of the suit schedule property. The Petitioner had sought to mark an agreement of sale as part of his defence.
Case Title : Vegulla Leela Krishna v. State of Andhra Pradesh & Anr.
Citation: 2022 LiveLaw (AP) 15
In a criminal petition filed under Section 482 of the Code of Criminal Procedure, 1973, the Andhra Pradesh High Court quashed the FIR with respect to offences punishable under Sections 306 read with 116 of the Indian Penal Code by holding that merely because the victim felt embarrassed on being beaten in public and took a hasty decision to commit suicide, the Petitioner cannot be found fault with under Section 306 of IPC.
Case Title: Polu Venkata Lakshmamma & Ors v. State of Andhra Pradesh & Ors.
Citation: 2022 LiveLaw (AP) 16
The Andhra Pradesh High Court has reiterated the established principle that even if there is an alternative remedy available, in case the rules of natural justice have not been followed, the aggrieved may approach the High Court by way of a writ petition under Article 226 of the Constitution. The Petitioners in this case had applied for mutation of their names to the land purchased by them. The contention of the Petitioners was that the said application was rejected without following the procedure stipulated under AP Rights in Land and Pattadar Passbooks Act, 1971, specifically Section 5 of the Act which provides that the petitioner should have been given notice and thereafter the order should have been passed after giving the Petitioner an opportunity of hearing.
Bombay High Court
Case Title: Ms Moonline Express Cargo Pvt Ltd vs UoI through Divisional Railway Manager
Citation: 2022 LiveLaw (Bom) 30
Observing that an entity cannot be blacklisted from participating in future contracts without being allowed a proper opportunity to defend itself and without following the due process of law, the Bombay High Court granted interim relief to a company in a contract with the Railways.
The court held that the railway officials had not given the petitioner a fair opportunity to defend his stand by failing to mention the possibility of debarment in the show-cause notice.
2. Subsequent Reconstruction Of File Records Doesn't Change Original Filing Date: Bombay High Court
Case Tile: Mahadev Sadhu Ingale vs The State Of Maharashtra & othrs
Citation: 2022 LiveLaw (Bom) 31
The limitation period for considering an appeal (reference) against a land acquisition order must be calculated from the date an application was first filed and not from the date a missing appeal copy was reconstructed and submitted by the applicant, the Bombay High Court held.
The court set aside the Deputy Collector's (Sangli) order rejecting an application to refer the acquisition proceedings to a competent court under Section 18 of the Land Acquisition Act, 1894. It observed that merely because the documents were not traceable in the Deputy Collector's office and the petitioner had to reconstruct them, it didn't mean the application was filed later.
Case Title: Dr. Surendra Manjrekar vs State of Maharashtra
Citation: 2022 Live Law (Bom) 32
The Bombay High Court granted anticipatory bail to former Director of a company accused of abetting the suicide of an employee, observing that all the allegations seemed to be part of "normal course of business" and that a company was "entitled to carry its business in the manner that was in the best interest of the company."
In the order, Justice Sarang Kotwal observed that the deceased, Nikhil Joshi, was taking treatment for stress management and was in a disturbed state of mind.
"Though, there are allegations that he was disturbed because of stress in the company, the company was entitled to carry its business in the manner that was in the best interest of the company. That by itself would not mean that the bigger targets were given and meeting was arranged, so that the deceased would commit suicide," the court observed.
Case Title: The State of Maharashtra vs Mohammad Aabed Mohammad Ajmir Shaikh
Citation: 2022 LiveLaw (Bom) 33
An extra-judicial confession made voluntarily, free from threat or inducement, carries the presumption of truth, Bombay High Court observed adding that depending on the facts of the case, a confession doesn't need to be presumed as weak piece of evidence.
Other considerations that weighed in with the bench were that the accused brought forth his crime by confessing to his friend, the accused's family neither tried to destroy evidence nor made attempts to conceal the accused. They also did not try to win over the friend to whom the extra judicial confession was made. In fact, the brother helped the police arrest the accused.
Case Title: Komal Babusingh Ade and others vs State of Maharashtra
Citation: 2022 LiveLaw (Bom) 34
The Bombay High Court, Nagpur Bench, acquitted 20 persons in a murder case, citing identical and parrot-like version of all the star prosecution witnesses, calling it as "humanly impossible".
A division bench of Justices Sunil Shukre and Pushpa Ganediwala, observed in the judgement, "It's difficult to believe that six eyewitnesses deposed in an identical fashion with each and every minute detail. In our considered opinion, it's humanly impossible. Not a single independent witness (except police and medical witness) was examined even when it is not the case that the incident occurred in isolation or during late night hours."
Case: State of Maharashtra v. Gulab Dattu Patil & Ors.
Citation: 2022 LiveLaw (Bom) 35
Even if the appellate court is inclined to re-evaluate and re-appreciate evidence on record to take a different approach, such interference is not justified when the trial court's view is a possible view, not marred with perversity or unreasonableness and thus, the appellate Courts must exercise a great deal of caution before disturbing the factual findings recorded by the trial court, Bombay High Court held.
Case Title: Essar Shipping Limited Vs. Union of India & Ors.
Citation: 2022 LiveLaw (Bom) 36
The Bombay High Court set aside a demand notice issued by the Joint Director-General of Foreign Trade (DGFT) against Essar Shipping Ltd, though the court upheld the validity of the circular under which the demand was made. The court held that the circular was restricted only to those cases where the claims were "being finalised" and therefore would not apply to Essar's case as it was already finalised by the concerned authorities.
The notice and the reminder which were set aside by the HC sought Rs 27.40 crore from the company comprising customs duty and interest on the basis of the benefits already availed and utilised on account of its entitlement under the Served from India (SFI) Scheme.
Other Important Updates
The Bombay High Court said that in cases under the Protection of Children from Sexual Offences Act, where the victims are minor, the trial court should complete the deposition of the victim as expeditiously as possible.
"In cases where the victims are minor, POCSO Courts should atleast complete the examination of the victim/prosecutrix, as expeditiously as possible, lest the victims who are minor forget the incident, due to passage of time, giving advantage to the accused," Justice Revati Mohite Dere observed while hearing a case where the trail was expedited by HC in October 2019, but only one witness was examined by the court, who was not the victim in the case.
The Bombay High Court directed the National Investigation Agency to respond to a review application filed by three accused in the Bhima Koregaon–Elgar Parishad Case seeking bail and factual corrections in the order refusing them default bail.
In an order passed on December 1, 2021, the HC had denied default bail to the petitioners and five of their co-accused on the ground that they had not filed their default bail applications within the stipulated period, which is after 60 days of their arrest and before filing of the charge sheet.
All the eight who were denied relief claimed that denial of bail was on account of a factual error; as just like Sudha Bharadwaj who was grnated bail in the same HC judgement, they had also filed default bail applications in the trial could within the stipulated period.
The intention of the mastermind in rationalist Narendra Dabholkar's murder case, Virendrasinh Tawde, was to eliminate 'anti-hindus' and people opposed to Sanatan Sanstha's beliefs and customs, the Central Bureau of Investigation told the Bombay High Court while opposing Tawde's bail application in the 2013 murder case.
Tawde had allegedly conspired and hired sharp shooters to execute Dabholkar over ideological differences. The CBI affidavit says Tawde and his associates followed the teachings of 'Kshatra Dharma Sadhana,' advocated by Sanatan Sanstha, which was against alleged Evil Doers, Anti-Hindus, Dharamadrodhis and Durjans.
"The crime gave a feeling that those who do any act which the accused persons and the Sanatan Sanstha/Hindu Jan Jagruti Samiti doesn't like or tolerate, would be dealt with in a brutal manner. Such a feeling is more than sufficient to threaten the security of the people and the Nation. It had a terrorizing effect on the society," CBI's affidavit read.
4. Justice Pushpa Ganediwala Of Bombay High Court Resigns
Justice Pushpa Ganediwala, judge of the Bombay High Court (Nagpur Bench) resigned on Februrary 10, 2022, two days before her extended tenure as an Additional Judge was set to expire. The Supreme Court collegium did not recommend the extension of her term.
She became a district judge in 2007 and was elevated as an additional judge of the Bombay High Court on February 13, 2019, for a term of two years. In January 2021, Justice Ganediwala delivered two judgments relating to child sex abuse, which attracted widespread criticism for taking the proposition that direct skin to skin contact was necessary for constituting the offence of sexual assault under the POCSO Act. Following the controversy, the Supreme Court collegium revoked the recommendation made by it on January 20, 2021 to make her a permanent judge of the Bombay High Court.
A month later, in February 2021, the Collegium recommended the extension of her term as an additional judge for one more year, instead of proposing to make her a permanent judge.
A PIL filed in the Bombay High Court challenged the Maharashtra Cabinet's recent decision to permit sale of wine in supermarkets and walk-in stores through 'self-purchase'. The petition filed by Sandip Kusalkar, who runs NGO for empowering the youth, said Maharashtra Government's decision was contrary to its de-addiction policy and a Government Resolution (GR) issued on August 17, 2011 to curb proliferation addictions in youth.
The decision will popularize and familiarize the alcohol and alcohol consumption in masses of the state. "This very objective of the Cabinet Decision is defeating the aim and object of de-glamorizing the alcohol consumption and negating the status acquired for alcohol consumption under the De- addiction policy mentioned in the said GR."
A PIL in the Bombay High Court challenged construction of any memorial in the future at the iconic Shivaji Park ground and for guidelines to protect the park in the wake of a political tussle over erecting late singing legend Lata Mangeshkar's memorial there.
Soon after Mangeshkar's demise on February 6, and cremation at Shivaji Park, BJP leaders in opposition demanded her memorial to be built there. However, the State Cabinet led by the ruling Shiv Sena decided that her memorial would be an international Music Academy in Kalina.
The academy would be built at an approximate cost of Rs 1200 crore, and spread across 2.5 acres. The PIL was filed before the State Cabinet's decision on the music academy.
The Bombay High Court issued notices to the Maharashtra Government, Collector and Municipal Commissioner of Nagpur on a plea alleging discrimination against wedding hall owners by restricting the number of guests to just 50 in Nagpur District.
The petition filed by Mangal Karyalaya & Lawn Association alleged that while guests at social gatherings were restricted, cinema halls, theatres, malls, restaurants were permitted to carry on their businesses with 50% capacity for the doubly vaccinated.
"This is an unreasonable classification resulting in impermissible discrimination," the petitioners represented by Advocate Shyam Dewani for the petitioners said. Imposing additional curbs and restrictions without any rationale is arbitrary and violative of Article 14, 19(1)(g) & Article 21 of the Constitution.
Calcutta High Court
Case Title: West Bengal State Electricity Distribution Company Limited v. Sukanta Kumar Singha and Anr
Case Citation: 2022 LiveLaw (Cal) 30
The Calcutta High Court has directed the West Bengal State Electricity Distribution Company (WBSEDCL) to pay an amount to the tune of Rs.6,07,000 to a consumer for unauthorised disconnection of electricity supply due to which the consumer had suffered unnecessary harassment. Calling the conduct of WBSEDCL as 'deplorable', Justice Sabyasachi Bhattacharyya observed, "In cases such as the present one, it is the gross laches of the Distribution Licensee which compelled the respondent no.1, a consumer, to suffer unnecessary ignominy and harassment..As far as the conduct of the Distribution Licensee in the present case is concerned, the same is deplorable and the consumer was compelled to run from pillar to post at every point of time." Accordingly, the Court directed, "Hence, there was no scope of reducing the total amount of compensation at the rate of Rs. 500/- per day, as calculated by the Ombudsman. Rather, in exercise of this court's powers under Article 226 of the Constitution of India, the impugned order of the Ombudsman is modified to the effect that the Distribution Licensee shall pay compensation not to the tune of Rs.1,21,400/- as awarded but will pay a total amount of Rs.6,07,000/- to the consumer-respondent no.1 within a month from date, deducting any amount, if already paid pursuant to the impugned order of the Ombudsman."
Case Title: Union Of India and Others v. Ratna Sarkar
Case Citation: 2022 LiveLaw (Cal) 31
The Calcutta High Court observed that the benefit of family pension cannot be extended to a widowed daughter of a pensioner who was married at the time of the death of her father/mother. The Court held that a daughter who became widowed after the demise after her father/mother does not possess any fundamental or statutory right to claim family pension. The issue in consideration before a Bench comprising Justices Harish Tandon and Rabindranath Samanta was whether a daughter of a pensioner who was married, but became widowed after the death of the pensioner is entitled to family pension. Answering in the negative, the Court observed, "As the legislative intent is demonstrated, the scheme of family pension never included a daughter of a pensioner who was married at the time of the death of the pensioner..A daughter who became widowed after the demise after her father/mother does not possess any fundamental or statutory right to claim family pension. In the absence of any legislation in this regard, the benefit of family pension cannot be extended to a daughter of a family pensioner who was married at the time of the death of her father/mother. It will be unwise on the part of this Court to exercise its extraordinary or discretionary power to come to any inference contrary to the policy decision of the Government."
Case Title: Surojit Mandal v. National Investigation Agency (NIA)
Case Citation: 2022 LiveLaw (Cal) 32
The Calcutta High Court on Friday observed that Section 44 (3) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) mandate Courts to undertake measures to protect the identity of a protected witness and accordingly directed the concerned Trial Court to to redact the name, address and other particulars of the protected witness from the records immediately. A Bench comprising Justices Joymalya Bagchi and Bivas Pattanayak noted that in the instant case, the statement of the protected witness recorded under Section 164 CrPC discloses his indignity. Opining that such disclosure of indignity defeats the provision of Section 44 (3) of the UAPA, the Bench observed, "Sub-section (3) of section 44 of the Unlawful Activities (Prevention) Act, 1967, inter alia, provides the measures which the court may undertake to protect the identity of a protected witness which includes avoiding to mention the name and address of the witness in its orders or judgment and any record of the case accessible to public. Statement under section 164 Cr.P.C. of the witnesss is required to be served upon the accused. Hence, disclosure of identity of the protected witness in such statement clearly defeats the purpose of the aforesaid provision of law." The Court further directed the Trial Court to exercise more caution in ensuring that the indignity of protected witnesses are not divulged.
Case Title: Ganesh Orang v. State of West Bengal & Anr
Case Citation: 2022 LiveLaw (Cal) 33
The Calcutta High Court observed that lacunae in the prosecution case due to patent contradictions or inherent improbabilities cannot be cured by resorting to statutory presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). A Bench comprising Justices Joymalya Bagchi and Bivas Pattanayak observed, "Glaring lacunae in the prosecution case undermines the credibility of the factual foundations which require to be prima facie established to attract the statutory presumption. When the primary facts relating to time, place and circumstances constituting the offence are not prima facie established due to patent contradictions or inherent improbabilities, such lacuane cannot be cured by resorting to statutory presumptions in law". Accordingly, the Court acquitted the appellant by observing, "In order to attract the statutory presumption under Section 29 of the POCSO Act the factual foundations with regard to the ingredients of the offence under Section 6 of the said Act require to be established in the first place..in the light of the contradictory and inconsistent versions with regard to the allegation of rape levelled against the appellant, the factual foundations of the prosecution case has not been laid on the basis of preponderance of probabilities so as to attract the statutory presumption and the appellant is therefore entitled to an order of acquittal."
Case Title: Bimal Bhattacharya v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 34
The Calcutta High Court has dismissed a contempt petition filed against the State Election Commission (SEC) alleging that it had failed to comply with an earlier order of the Court directing the SEC to consider postponing elections to four municipal corporations for a short period of 4 to 6 weeks in the wake of the rising number of Covid-19 cases. The Court vide order dated January 14 had directed the SEC to consider postponing the conduct of the upcoming municipal elections in Siliguri, Chandernagore, Bidhannagar and Asansol for a short period of 4 to 6 weeks in the wake of the 'galloping speed with which the COVID cases are increasing' in the State of West Bengal. Thereafter, the State Election Commission had decided to postpone the date of election by 3 weeks and had notified that elections to the four municipal corporation would take place on February 12. A Division Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed, "The period of 4 to 6 weeks mentioned in the order was only suggestive leaving it upon to the State Election Commission to take a decision in this regard within a time bound period..Having regard to the nature of the order passed by this Court and considering the fact that there was no positive direction in the order of this Court, we are of the opinion that there is no deliberate non-compliance or violation of the order of this Court by the respondents herein, hence no case for initiating the contempt proceedings is made out."
Case Title: Dabur India Limited v. Shree Baidyanath Ayurved Bhawan Pvt Ltd
Case Citation: 2022 LiveLaw (Cal) 35
The Calcutta High Court permanently injuncted four advertisements by the makers of Baidyanath Chyawanprash Special for being disparaging to all other brands of Chyawanprash including Dabur Chyawanprash. Justice Shekhar B Saraf was adjudicating upon a plea moved by Dabur seeking an injunction against the uploading of five advertisements that had allegedly disparaged the goodwill and reputation of its trademark. "Precedents cited by both parties make it clear that true statements can be made even if it denigrates the rival's product, but false and misleading statements cannot be allowed under the guise of free speech. In light of the same, this video advertisement is disparaging and an action from this Court would lie. In light of the reasons provided above, this video advertisement is permanently injuncted", the Court observed. The Court further underscored that the concerned advertisements are misleading and accordingly opined, "A misleading advertising, as the term implies, is one that deceives, manipulates, or is likely to deceive or manipulate the consumer. These commercials have the potential to influence consumer's purchase preference in the market and it also harms its rivals, hence, they must be used with caution. There should be a balance between the right of commercial speech and the interest of public and competitors. In the present case, the video advertisement is, to a large extent, misleading".
Case Title: Tania Mukherjee & Ors v. State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 36
The Calcutta High Court observed that service in Specialized Units would not amount to serving in "remote and/or difficult areas" for the purpose of qualifying for the stipulated 40% in-service quota in Post Graduate Medical counselling for seats in Government/private colleges in West Bengal. Justice Moushumi Bhattacharya was adjudicating upon a plea moved by 53 graduate doctors who are serving as Medical Officers in different hospitals in the State and had contended that they should be eligible for availing the 40% in-service quota for presently serving in Specialized Units. "This Court recognizes the commitment shown by the in-service doctors who render 24x7 service in these Specialized Units. However, to include service in such Specialized Units within the definition of "rural and/or difficult areas" would amount to making in-roads into the policy frame-work of the State Government which a Writ Court should normally hesitate to do unless compelling reasons exist. A policy decision is not a perpetual no-go area and a Writ Court can certainly interfere in fit cases including where the policy is not backed by legislative competence or where there is an excessive delegation of essential legislative functions or an infraction of the fundamental rights guaranteed under the Constitution of India", the Court observed.
Case Title: Tapan Saha v. State Election Commissioner & Ors
Case Citation: 2022 LiveLaw (Cal) 37
The Calcutta High Court while hearing a plea alleging issuance of fake Scheduled caste certificate to a candidate contesting from a scheduled caste constituency, imposed costs to the tune of Rs. 50,000 on the petitioner for suppressing the fact that he himself was also a contesting candidate in the concerned Bidhannagar municipal polls. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed, "The fact now revealed by the respondents shows that the petition is by one contesting candidate against another. This fact has changed the entire complexion of the case. Hence, we dismiss this writ petition by imposing costs of 50,000/- which is to be deposited by the petitioner with the Legal Services Authority within a period of two weeks from today." Opining that the conduct of the petitioner amounts to 'gross suppression of facts', the Court further underscored, "The petitioner has suppressed this fact in the petition that he is one of the candidates contesting election of concerned municipal corporation. This amounts to gross suppression of fact and the present writ petition is liable to be dismissed with costs on the sole ground of suppressing the fact."
9. Running Of Mill By Neighbour Causing Rattling Noise Amounts To Actionable Nuisance
Case Title: Srimanta Ghosh & Ors v. Debabrata Ghosh
Case Citation: 2022 LiveLaw (Cal) 38
The Calcutta High Court has observed that while it is acceptable that every little discomfort or inconvenience cannot be brought into the category of an actionable nuisance, however if such inconvenience or annoyance exceeds all reasonable limits then the same would amount to an actionable nuisance. A Bench comprising Justice Soumen Sen and Justice Ajoy Kumar Mukherjee was adjudicating upon a plea wherein the plaintiff had contended that the defendant had been running a mill in the adjoining plot which caused rattling noise and vibration thereby causing discomfort to him and his wife. Taking cognisance of the grievance raised, the Court observed, "While it is acceptable that every little discomfort or inconvenience cannot be brought on to the category of an actionable nuisance but if such inconvenience or annoyance exceeds all reasonable limits then the same would amount to an actionable nuisance. Frequent and loud noise has been proved to trigger stress and anxiety in both adult and children – more often affecting mental health. A constant cacophony in neighbour's land causing disquietude in one's own abode is beyond a common man's realm of expected endurance."
Case Title: Gaurav Purakayastha v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 39
The Calcutta High Court dismissed a Public Interest Litigation (PIL) seeking directions to ensure that conduct of physical classes for Class VIII students in the State should resume only for vaccinated children and that children who are below 15 years of age i.e. are born after the year 2007 should be permitted to attend online classes. It may be noted that the Central government had issued a notification stipulating that children aged 15 years or more i.e. all those whose birth year is 2007 or before shall be eligible for Covid-19 vaccination with effect from January 3, 2022. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj dismissed the plea on the ground that there arises 'serious question about the locus of the petitioner' and further observed that the plea filed is not supported by adequate materials and documents. The Bench further opined that since one PIL is already pending before the Court regarding the issue of reopening of schools, entertaining the instant petition would result in multiplicity of proceedings. However, liberty was granted to the petitioner to file a fresh application along with all relevant materials as so advised.
Important Weekly Updates
Case Title: Ramaprasad Sarkar v. Union of India
A Public Interest Litigation (PIL) petition was filed before the Calcutta High Court on Tuesday praying for a direction to the Central government to remove Jagdeep Dhankhar as the Governor of West Bengal, claiming that he was acting as the 'mouthpiece of the Bharatiya Janata Party'. The PIL has been filed by petitioner Rama Prasad Sarkar who is also a lawyer by profession. Opining on the conduct of the Governor, the petitioner averred, "The present Hon'ble Governor of West Bengal Mr. Jagdeep Dhankhar is acting as the mouthpiece of Bharatiya Janata Party (BJP). He is not only interfering in the functioning of the state of affairs but is also maligning the West Bengal government. This is unparalleled in the history of West Bengal's democracy".The petitioner also submitted that the immunity granted to the Governor under Article 361 of the Constitution is not absolute and that the actions of the Governor are subject to judicial scrutiny when challenged for arbitrariness, dishonesty and bad faith. "The Governor is also a formal head who is bound by the aid and advice of the Council of Ministers. Therefore, Mr. Jagdeeo Dhankar's observations about the functioning of the various ministries under the State government carry deeper political repercussions as they have the potential to affect the federal structure and amount to a misuse of political office", the plea further averred.
Case Title: Sandeep Prasad & Ors v. State of West Bengal
The Calcutta High Court directed the concerned District Inspectors of Schools to not pay any further salary to 573 candidates who had allegedly been appointed for the post of 'Group-D' (non-teaching staff) in sponsored Secondary and Higher Secondary schools under the West Bengal Board of Secondary Education (WBBSE) despite no such recommendation by the West Bengal Central School Service Commission (WBSSC). Justice Abhijit Gangopadhyay was adjudicating upon a batch of petitions pertaining to the alleged irregularities in the appointment of 'Group-D' (non-teaching staff) in sponsored Secondary and Higher Secondary schools under the WBBSE on the purported recommendation by the WBSSC. The Court underscored, "From the above provision of the Act, it is clear that the appointment of the said 573 candidates are wholly invalid and have no effect for want of recommendation by the commission and, therefore, they cannot work in a school as a recommended candidate by the Commission and their appointment letters of the Board are of no effect. All such appointments given to such 573 candidates are invalid and of no effect." Expressing strong displeasure against the conduct of the inquiry committee, the Court remarked, "The appeal court mandated the committee to file the report by two months from the date of the order of the appeal court. The order of the appeal court was passed on 6th December, 2021. Today we are on 9th February, 2022. Although the said mandatory period of two months have elapsed, not only no inquiry report has been submitted before this court but also nobody of the committee, or on behalf of the committee, did care to appear before this court. This non-appearance is taken very very seriously by this court."
Case Title: Pratap Banerjee v. State of West Bengal and other connected matters
The Calcutta High Court directed the State Election Commission to hold a joint meeting with officials of the West Bengal government within 12 hours and decide as to whether deployment of central paramilitary forces will be required for the peaceful conduct of the upcoming elections to the Bidhannagar Municipal Corporation. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj observed,"We hereby direct that the Commissioner, State Election Commission will hold the joint meeting with the Chief Secretary and Home Secretary of the State and the Director General and Inspector General of Police within 12 hours and will do the reappraisal of the ground situation in Bidhannagar Municipal Corporation area and ascertain if deployment of paramilitary forces is necessary for ensuring the peaceful conduct of election of Bidhannagar Municipal Corporation and if require, he will submit and requisition to the Union Ministry of Home Affairs or the competent authority for deployment of paramilitary forces and any request in this regard will be duly considered having regard to the ground situation and in the interest of ensuring peace, security and orderly conduct of the forthcoming Bidhannagar Municipal Corporation Election without any delay." Opining that the Commissioner of the State Election Commission will be held personally liable to ensure that no violence takes place, the Court further remarked, "In case, if the Commissioner, State Election Commission forms an opinion that deployment of the paramilitary forces during Bidhannagar Municipal Corporation election is not necessary, then he will be personally liable to ensure that no violence takes place and free, fearless and peaceful elections are held in Bidhannagar."
Case Title: Pratap Banerjee v. State of West Bengal and other connected matters
The Calcutta High Court on Friday dismissed an application seeking modification of its order dated February 10, 2022 whereby the Court had directed the State Election Commission to hold a joint meeting with the Chief Secretary and Home Secretary of the State as well as the Director General and Inspector General of Police within 12 hours and decide as to whether deployment of central paramilitary forces will be required for the peaceful conduct of the upcoming elections to the Bidhannagar Municipal Corporation. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj on Friday was apprised by one of the counsels for the petitioners that a Division Bench of this Court in the case of Sayan Banerjee v. The Election Commission of India and Ors had recorded adverse observations against the Chief Secretary of West Bengal. Accordingly, the counsel had objected to the order of the Court directing the involvement of the Chief Secretary of the State in the decision making process for the deployment of central forces for the Bidhannagar Municipal polls. Dismissing such a contention raised, the Court observed, "Having regard to the nature of direction which has been issued by this Court, we are of the opinion that no modification of the order of this Court is required on the basis of the observations made by the earlier Division Bench in the order dated 28.09.2021 in WPA (P) 245 of 2021 in respect of the Chief Secretary of the State."
Case Title: Nivedita Basu v. State of West Bengal
The Calcutta High Court on Friday directed the Director of IPGME&R, (SSKM Hospital), Kolkata to constitute a medical board as per the provisions of the Medical Termination of Pregnancy Act, 1971 while adjudicating upon a plea of a woman seeking medical termination of her 34 weeks old foetus. Justice Rajasekhar Mantha observed, "This Court directs the Director of IPGME&R, (SSKM Hospital), Kolkata, respondent no. 4 to constitute a medical board comprising of experts, inter alia, in gynaecology and obstetrics as per the Medical Termination of Pregnancy Act, 1971 (as amended in the year 2021) to assess the medical condition of the petitioner and the necessity and advisability of the MTP at this stage."The Court further ordered that the report containing the medical opinion must be submitted before the Court by February 15 and accordingly remarked further, "The mental and physical health of the petitioner as well as the foetus should be considered and opinion should be submitted to this Court as expeditiously as possible but not later than Tuesday 15th February, 2022."
Chhattisgarh High Court
Case: Smt. Priya Agrawal and Ors. Versus State of Chhattisgarh and Ors.
Citation: 2022 LiveLaw (Chh) 11
The Chhattisgarh High Court has held that if the office of President, District Commission can be held by District Judge aged 55 years or a retired District Judge aged 60 years, then even an Advocate of that age (with requisite experience) is eligible for the same and there is no legal bar or justification to hold otherwise.
While dealing with a case regarding non-appointment of petitioners at the post of President, District Commission citing their age as an ineligibility criterion among others, Justice Sanjay K Agarwal has held the petitioners to be fully eligible for appointment on the position of President, District Consumer Disputes Redressal Commission, qua their age and held the action of the state to declare them ineligible on that basis to be arbitrary.
Delhi High Court
1. A Reliable Testimony Of An Injured Witness Holds Weight Even In The Face Of Procedural Irregularities For Conviction Under S. 307 IPC: Delhi High Court
Case Name: Saleem Khan v. The State (Govt. of GNCT, Delhi)
Citation: 2022 LiveLaw (Del) 92
The Delhi High Court vindicated the case of the State upholding S. 307/324 IPC (attempt to murder/voluntary causing hurt by dangerous weapons) Conviction after confirming the reliability of the testimony of the injured witness.
Justice Manoj Kumar Ohri highlighted the law on appreciation of injured witness according to a very high degree of reliability. Thus, the testimony of an injured witness, unless countered by significant discrepancies, is highly reliable, removing all doubts as to the likelihood of the witness falsely implicating the attacker.
Case Title: THARVINDER SINGH & ORS. v. VIRESH CHOPRA & ANR
Citation: 2022 LiveLaw (Del) 93
The Delhi High Court has observed that once an application for amendment is allowed in terms of Order VI Rule 18 of Code of Civil Procedure, the plaint has to be amended. Justice Pratibha M Singh also reiterated that in case the amended plaint is not filed within the stipulated time, the plaint cannot be amended thereafter.
The Plaintiffs were accordingly directed to file the amended plaint, on the next date of hearing or within 15 days upon resumption of normal hearing, whichever was later.
Case Name: TINIMO EFERE WOWO Vs THE STATE GOVT OF NCT OF DELHI
Citation: 2022 LiveLaw (Del) 94
In a case involving a foreign national arrested under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Delhi High Court clarified the liability of persons accused of offenses involving controlled substances and the foreigner's right to bail.
In this case, the Petitioner was the source person for Pseudoephedrine drug for a business chain operating in Punjab, Haryana, and Delhi. Holding the drug to be a "controlled substance", Justice Bhatnagar held that the bar of Section 37 is not applicable in this case.
4. Settlements Entered In Industrial Disputes Valid & Legal Even Though Provisions Similar To Order XXIII Rule 3 CPC Do Not Exist In Industrial Disputes Act: Delhi HC
Case Title: M/S WEARWELL (INDIA) PRIVATE LIMITED v. MOHD. NIZAM
Citation: 2022 LiveLaw (Del) 95
The Delhi High Court has observed that settlements entered into in industrial disputes are legal and valid even though provisions similar to Order XXIII Rule 3 CPC do not exist in Industrial Disputes Act, 1947.
Justice Pratibha M Singh added that settlements can be entered into between Management and Workman even outside the court or conciliation proceedings as is clear from sec. 18(1) Industrial Disputes Act. "Such settlements would be valid and legal. Upon a settlement being entered into, parties may place the same before the forum concerned and the same can be recorded, upon the Court being satisfied that the terms are legal, just and fair. A settlement under Section 18(1) would be binding on the parties. The usual procedure for recording a settlement would be that parties would file an application and appear before the court and confirm the settlement," the Court said.
5. Order XXXVII CPC- Defendant Entitled To Unconditional Leave To Defend Suit If Substantial Defence Or Triable Issues Shown: Delhi High Court
Case Title: SMT. NEELAM BATRA v. SHRI V. RAMCHANDRA RAO
Citation: 2022 LiveLaw (Del) 96
The Delhi High Court has observed that under Order XXXVII of the Code of Civil Procedure, a defendant is entitled to the leave to defend the suit if he satisfied the Court that he has a substantial defence or that there are triable issues by way of which the plaintiff is not entitled to leave to sign judgment.
Justice Suresh Kumar Kait made the following observations: "Order XXXVII CPC was included in the Code of Civil Procedure with the intent to allow the plaintiff who has an undisputed liquidated claim against the defendant, who has no substantial defence and/or raises no genuine triable issues to obtain a quick and summary judgment without pointlessly being kept away from what is due, in respect of any monetary dues, to recover the dues swiftly by a summary procedure instead of taking the extensive route of a regular suit."
"But if the defendant satisfies the court that he has a substantial defence or satisfy the Court that there are triable issues by way of plea the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit."
6. Recourse To S.14 Arbitration Act Not Available In Respect Of Challenge To Arbitrator U/S 12(1): Delhi High Court
Case Title: Union of India v. M/S APS Structures Pvt. Ltd, OMP (T) (Comm) 2/2022
Citation: 2022 LiveLaw (Del) 97
The Delhi High Court has held that recourse to Section 14 (failure or impossibility to act) of the Arbitration and Conciliation Act, 1996 is not available in respect of any challenge to the appointment of arbitrator under Section 12(1) of Act.
Section 12 provides for 'grounds of challenge', whereas sub section (1) provides that an arbitrator must disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality.
Justice Vibhu Bhakru has held, "It is well settled that recourse to Section 14 of the A&C Act is not available in respect of any challenge to the arbitrator under Section 12(1) of the A&C Act."
7. Recourse To S.14 Arbitration Act Not Available In Respect Of Challenge To Arbitrator U/S 12(1): Delhi High Court
Case Title: Manushi Sangathan v. Delhi Fire Service
Citation: 2022 LiveLaw (Del) 98
The Delhi High Court refused to entertain the writ petition filed by Manushi Sangathan, an organization representing 67 hawkers and vendors, challenging the mock drill report submitted by Delhi Fire Service in the suo moto case registered last year following a fire incident at a building in the Nehru Place market.
The Bench comprising of Justice Manmohan and Justice Navin Chawla, which is already examining the matter in the suo moto case, chided the Petitioner, stating, "You are committing an abuse of process by approaching this Court with multiple proceedings. You can't put fear of God in public authorities by filing by abuse of law".
The mock drill report stated that the time taken by various agencies in reaching the spot was too high thereby indicating that there were significant hindrances due to heavy pedestrian movement, heavy traffic, hawkers and parking problems. Accordingly, the report had recommended that the place may be made a hawker free zone.
8. Institutions Can't Cancel Enrolment Of 'Erroneously Admitted' Students Mid-Course In Absence Of Any Wrongdoings On Their Part: Delhi High Court
Case Title: Abha George & Ors Versus All India Institute Of Medical Sciences (AIIMS) & Anr.
Citation: 2022 LiveLaw (Del) 99
The Delhi High Court has allowed a petition filed by students of MSc Nursing at the All India Institute of Medical Sciences (AIIMS), challenging an Office Memorandum (OM) of the Institution canceling their admission.
The students had been admitted based on the eligibility conditions in the Prospectus of AIIMS and offer letters. However, 2 months into the course, the Institution decided to cancel their admissions as it had released the qualifying examination results later than the due date. Thus, the students approached the Court, praying for relief.
Noting that the students had been studying for two months into the course, Justice Prateek Jalan ruled that the Institution could not now hold the students responsible for the University's shortcomings.
9. Legal Representatives Entitled To Motor Accident Claim: Delhi HC Upholds Compensation Given To Children From Deceased's First Marriage
Case Title: UNITED INDIA INSURANCE CO.LTD v. FARIDA SAROSH POONAWALA AND ORS
Citation: 2022 LiveLaw (Del) 100
Reiterating that legal representatives of a person are entitled to motor accident claim, the Delhi High Court has upheld the compensation given to two children from the deceased's first marriage.
Justice Sanjeev Sachdeva was dealing with a plea impugning the award dated 22.03.2021 whereby the detailed accident report was disposed of and compensation was awarded to the children.
It was the case of the appellant, Insurance company, that the tribunal had erred in awarding compensation to two children of the deceased from his first marriage. It was submitted that they cannot be treated as dependent family members of the deceased.
It was also argued that the tribunal had erred in taking the monthly salary of the deceased at Rs. 41,807 whereas as per the claim of the wife of the deceased the salary was only Rs. 35,000 per month.
10. "No Discrimination": Delhi High Court Dismisses Pleas Challenging Allowance Reduction For Air India Employees
Case Title: ALL INDIA AIRCRAFT ENGINEERS ASSOCIATION & ANR.
Citation: 2022 LiveLaw (Del) 101
The Delhi High Court has dismissed pleas challenging office order by which allowances of the Air India employees were reduced, observing that there was no discrimination rather there was a justifiable ground in reducing the allowances for the pilots and engineers.
Justice V Kameswar Rao said that it was for the Centre and Air India to determine, by taking into account relevant considerations, what ought to be the appropriate reduction in allowances. "As long as the reduction is not palpably arbitrary, the scope of judicial review is very limited," the Court said.
The Court was dealing with a plea filed by two associations namely India Aircraft Engineers' Association and Air India Aircraft Engineers' Association.
11. Minor Child Entitled To Claim Maintenance For His Upbringing By Father, Not Bound By Divorce Settlement: Delhi High Court
Case Title: FATEH SAHARAN v. ROHIT SAHARAN
Citation: 2022 LiveLaw (Del) 102
The Delhi High Court has observed that a minor child is entitled to claim maintenance for his upbringing by the father and that such a child is not bound by the divorce settlement regarding maintenance between his parents.
Justice Vipin Sanghi and Justice Jasmeet Singh was dealing with an appeal filed by a minor child being aggrieved by the grant of interim maintenance by the Family Court at Rs. 15,000 per month.
The High Court had vide order dated April 22, 2021 enhanced the said maintenance amount and directed the father to pay Rs. 25,000 per month to the minor, considering that his school fee itself was in that range.
Observing that when the mother of the minor child obtained divorce by mutual consent, the maintenance was fixed in respect of the child at Rs. 5,000 per month, the Court said: "It goes without saying that the appellant being a minor, is not bound by that settlement, and he is entitled to claim maintenance for himself for his upbringing from the respondent i.e., his father."
12. Pre-Trial Detention Impacts Right Of Accused To Defend Himself, Affects Fair Trial Guaranteed Under Article 21: Delhi High Court
Case Title: VIKAS CHAWLA v. STATE OF NCT OF DELHI
Citation: 2022 LiveLaw (Del) 103
Noting that the consequences of pre-trial detention are grave in nature, the Delhi High Court has observed that keeping an undertrial in custody would impact his right to defend himself during trial and that he will be clearly denied the right to a fair trial which is guaranteed under Article 21 of the Constitution.
Justice Chandra Dhari Singh made the observation while granting bail to one Vikas Chawla accused of cheating HDFC Bank as well as BMW Financial Services to the tune of several crores of rupees by using forged and fabricated documents and emails.
Senior Advocate Vikas Pahwa appearing for the petitioner submitted that the petitioner was arrested on 5th August, 2021 and was in custody since then. It was submitted that the investigation of the case was completed and Chargesheet was also filed. He also argued that all the incriminating evidences and materials against the petitioner were documentary in nature and that there was no chances of the petitioner tampering with the same.
13. "Use Of Bank's Seal Unauthorisedly A Matter Of Enormous Gravity": Delhi High Court Upholds Workman's Punishment Of Compulsory Retirement
Case Title: THE CHIEF MANAGER PUNJAB AND SIND BANK v. SHRI PARAMJIT SINGH NANDA
Citation: 2022 LiveLaw (Del) 104
The Delhi High Court has upheld the punishment of compulsory retirement awarded to a workman, guilty of forgery, fabrication of bank statements and other forms of misconduct, observing that the use of a bank's seal unauthorisedly is a matter of enormous gravity which cannot be simply brushed under the carpet.
Justice Pratibha M Singh also observed that forging the signatures of a colleague or even turning a blind eye to such forgery by a third party, and reaping benefits from the same is wholly impermissible.
The Court allowed the petition filed by Punjab and Sind Bank challenging the Award dated 9th October, 2019 passed by the Central Government Industrial Tribunal cum Labour Court wherein the punishment of compulsory retirement imposed on the Respondent Workman was unjustified and unwarranted.
14. Authority Must Have Valid Reasons For Accepting/ Rejecting Bids Even If Tender Clause Stipulates Otherwise: Delhi High Court
Case Title: PKF Sridhar and Santhanam v. Airports Economic Regulatory Authority of India. WP (C ) 12385/2021
Citation: 2022 LiveLaw (Del) 105
The Delhi High Court recently observed that merely because a clause in the tender stipulates that the bids may be accepted or rejected without assigning any reasons, does not mean that the tender authority can act arbitrarily. It must have valid reasons for exercising its discretion.
The division bench comprising of Justices Vipin Sanghi and Jasmeet Singh said, " No doubt, the tender-inviting authority cannot act arbitrarily or whimsically, or out of mala fides in the matter of awarding or cancelling the tendering process. Even the clause which stipulates that they may not assign reasons for not accepting any bid, or rejecting the bids, does not mean that they should not have any valid reasons to justify their conduct."
The petitioner had preferred the present writ petition being aggrieved by the cancellation of the tender in question, issued by the respondent-Airports Economic Regulatory Authority of India.
15. Objections Against Enforcement Of Foreign Arbitral Award Can't Be Filed In A Piecemeal Manner: Delhi High Court Imposes 1 Lakh Cost
Case Title: TAQA India Power Ventures Private Limited and Ors. vs NCC Infrastructure Holdings Limited, OMP (EFA) (Comm.) 1/2018
Citation: 2022 LiveLaw (Del) 106
The Delhi High Court has held that a Judgement Debtor cannot be permitted under Section 48 of the Arbitration and Conciliation Act, 1996, to file its objections against enforcement of an arbitral award in a piecemeal manner.
Justice Vibhu Bakhru held, " The respondent cannot file its opposition in a piecemeal manner. It is seen that the present petition was filed in the year 2018 and has been pending since. Sufficient opportunity was granted to the respondent to file its objections, however, the respondent has limited its objection only on the ground of territorial jurisdiction of this Court."
The respondent after completing his arguments regarding maintainability of the execution petition had submitted that in the event the Court finds that the petition is maintainable, the respondent should be given an opportunity to file its objection on merits.
16. Accused Can't Be Kept In Custody Indefinitely: Delhi High Court Grants Bail In Rs. Two Crore Cheating Case
Case Title: NANCY GILL v. STATE
Citation: 2022 LiveLaw (Del) 107
The Delhi High Court has observed that an accused person cannot be kept in custody indefinitely when the right to speedy trial is a concomitant of Article 21 of the Constitution of India.
Justice Subramonium Prasad observed thus: "When right to speedy trial is a concomitant of Article 21 of the Constitution of India, it can be presumed that one the facets would also be that the accused cannot be kept in custody indefinitely."
The Court was dealing with a plea filed by a woman seeking bail in an FIR registered under sec. 420 of the Indian Penal Code. The complainant, a jeweler by profession, had alleged that the petitioner, who was his customer, had dishonestly represented that the Prime Minister of India had started a programme wherein the King of Brunei wanted to start 14 Super Specialty Hospitals in different parts of India, with the first opening in Ahmedabad, Gujrat.
17. Right To Speedy Trial Can't Remain Dead Letter: Delhi High Court Grants Bail To Person Accused With Commercial Quantity Ecstasy
Case Title: Mahesh v. State
Citation: 2022 LiveLaw (Del) 108
"Speedy Justice is a Fundamental Right enshrined under the ambit of Article 21 of the Constitution of India, and the same needs to be given effect by this Court in letter and in spirit, else it will remain as a dead letter of law," the Delhi High Court observed on Tuesday.
The remarks were made while granting bail to an accused under the Narcotics, Drugs and Psychotropic Substances Act, 1985, languishing in jail for more than four years.
Justice Chandra Dhari Singh was hearing the regular bail application filed by Mahesh, who was allegedly found to be in possession of 20 grams of Ecstasy (commercial quantity).
The investigation against him was complete and chargesheet was also filed before the Sessions Court. Charges were framed against him in November 2018 under Sections 22 and 29 of the NDPS Act. The High Court noted that till date, out of a total of 14 witnesses only two witnesses have been examined, and as such there is no probability of the trial being concluded in the near future.
18. Rough Estimation Of Prosecutrix's Age Given By Her Father Can't Be Used To Rebut Documentary Evidence: Delhi HC Upholds POCSO Conviction
Case Title: Mohd. Afsar v. State, Crl. A. 274/2020
Citation: 2022 LiveLaw (Del) 109
The Delhi High Court recently refused to accept the rough estimation of age, given by a rape victim's father, to determine whether the offences under the POCSO Act are attracted.
Justice Mukta Gupta observed that to determine the age of a victim, suspected to be a minor, Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules 2007 applies. It provides that the first priority has to be given to the Matriculation or equivalent certificate and in the absence thereof, to the date of birth certificate from the school first attended other than a play school.
In the instant case, the Bench noted that as per the date of birth recorded in the school first attended, the prosecutrix was a child in terms of Section 2(1)(d) of the POCSO Act as she was below the age of 18 years.
Thus, even if in the cross examination, her father had given a rough approximation of her age, the same cannot be taken as an exact estimation of the date of birth of the prosecutrix.
19. Reinstatement In Service Cannot Flow As A Matter Of Right When Acquittal Is Not An Honourable Acquittal: Delhi High Court
Case Title: JAHAN SINGH v. TRIBAL COOPERATIVE MARKETING DEVELOPMENT FEDERATION OF INDIA LTD TRIFED AND ANR
Citation: 2022 LiveLaw (Del) 110
Dismissing a petition filed by an Accountant challenging his dismissal from service on being convicted in a criminal case, the Delhi High has observed that reinstatement in public service cannot flow as a matter of right where the acquittal of such person is not an honourable acquittal.
The petitioner who was working at the post of Accountant Grade I had approached the Court challenging the order dated March 19, 2013 whereby he was dismissed from service under Rule 19(i) of the CCS (CCA) Rules, 1965 based upon his conviction under sec. 7 and 15 of the Prevention of Corruption Act, 1988 on the ground that the petitioner tried to extract a bribe for processing the release of an amount outstanding to a vendor.
The High Court had then vide order dated May 4, 2020 acquitted and exonerated the petitioner from all charges.
IMPORTANT WEEKLY UPDATES
1. Delhi High Court Appoints Administrator To Run Table Tennis Federation Of India In Manika Batra's Plea
The Delhi High Court appointed an administrator to run the affairs of Table Tennis Federation of India (TTFI) thereby suspending the operation of it's Executive Committee after observing that prima facie, conduct of the federation was blameworthy.
Justice Rekha Palli hinted that the administrator appointed is likely to be a retired Chief Justice of a High Court. The Court said that it will also be appointing two or three persons along with the administrator, while adding that there names will be reflected later in the order.
The Court was dealing with a plea filed by Table Tennis player Manika Batra, challenging the Rules issued by Table Tennis Federation Of India (TTFI) which makes attending of National Coaching Camp compulsory for being selected for international events.
2. Amazon- Future Disputes: Delhi High Court To Commence Hearing On February 24
The Delhi High Court said that it will commence hearing in a bunch of pleas pertaining to disputes between Amazon and Future Group, over the latter's deal with Reliance Retail, on February 24.
A single judge bench comprising of Justice C Hari Shankar said that it will first be hearing the appeals filed by the Future Group and then proceed to hear other matters.
While noting the possible and relevant issues between the parties, the Court clarified that it was only jotting out the facts to ascertain the manner in which hearing in the pleas are to be commenced.
The Judge added that it had not even tentatively applied its mind while doing the same and that it has not expressed any opinion on the issues between the parties.
3. Whether 2012 Guidelines To Prevent Detention Of Juveniles In Adult Jails Complied? Delhi High Court Seeks Report
The Delhi High Court directed the Secretary of Delhi State Legal Services Authority ('DSLSA') to submit a report within two weeks on implementation and compliance of the 2012 guidelines and directions regarding the juveniles and children in conflict with law who are lodged in adult jails.
A coordinate bench of the High Court in the case titled Court On Its Own Motion v. Dept. Of Women And Child vide order dated May 11, 2012 had issued a slew of directions to ensure that such juveniles are not remanded and kept in adult jails.
In paragraph 19 of the said judgment, the Court had directed the police authorities to submit a report to the Court in every six months regarding the implementation of the said directions with copies to be given to NCPCR and DSLSA.
4. Illegal Encroachment In Chandni Chow Area: High Court Orders Personal Presence Of Commissioners Of Delhi Police, NDMC
Observing that no desired results were achieved by the efforts of the authorities concerned to permanently end the illegal encroachment by hawkers and vendors in city's Chandni Chowk area, the Delhi High Court directed the personal appearance of Commissioners of Delhi Police and North Delhi Municipal Corporation.
A Bench of Justice Vipin Sanghi and Justice Jasmeet Singh was dealing with a plea concerning illegal encroachments in Chandni Chowk area, being a no hawking and no vending zone.
"Looking to the continuing states of affairs which show that ad hoc actions have been taken for selective removal of encroachments by the MCD and Delhi Police but same has not yet yielded desired result of permanently ending the encroachment by hawkers and vendors in the no-hawking-no-vending zone of Chandni Chowk, we are of the view that time has come for this court to require the presence of Commissioner of Police, Delhi as well as Commissioner North Delhi Municipal Corporation to explain how they propose to deal with the ongoing menace," the Court ordered.
5. Indian Medical Students Unable To Rejoin Colleges In China Amid Covid-19 Travel Curbs: Delhi HC Issues Notice To MEA, NMC
About 150 Indian medical students enrolled in China have moved the Delhi High Court, seeking permission to pursue their physical training here, as they are unable to travel to China amid Covid-19 travel restrictions.
The matter came up this week before the division bench of Chief Justice DN Patel and Justice Jyoti Singh, which has issued notices to the respondents including Ministry of External Affairs and the National Medical Commission.
The plea filed through Advocates PV Dinesh, Ashwini Kumar Singh and Bineesh K. claims that careers of about 18,000 students is stake as they are stranded in India due to the pending restrictions imposed by Chinese government.
6. "Expression Of Opinion Or Criticism Is Not Defamation": Newslaundry Tells Delhi High Court In TV Today's Suit
Online news portal Newslaundry told the Delhi High Court that expression of an opinion does not amount to defamation, thereby opposing the Rs. 2 crores copyright infringement and defamation suit filed against it by TV Today, which owns channels India Today and AajTak.
Senior Advocate Saurabh Kirpal appearing for Newslaundry made three fold submissions before a single bench of Justice Asha Menon.
Firstly, he argued that the cause of action as disclosed in the plaint was extremely unclear and hence it was not possible for the Court to decide interim application on the basis of the said pleadings.
Secondly, he argued that even assuming that it was possible to consider some injunctive relief, TV Today had disentitled itself from any interim relief because of the "misleading documents" filed by it.
7. Marital Rape Exception: Delhi High Court Grants Two Weeks Time To Centre For Deciding Its Stand
The Delhi High Court has granted two weeks' time to the Central Government to decide and clarify its stand in a bunch of pleas challenging the exception of Marital rape under Section 375 of the Indian Penal Code.
The development came after Solicitor General of India, Tushar Mehta referred to the recent additional affidavit filed by the Centre wherein it had reiterated the request to defer hearing in view of the pending consultative process.
Mehta told a bench comprising of Justice Rajiv Shakdher and Justice C Hari Shankar that time was sought for providing a stipulated timeline within which the Central Government would conduct an effective consultative process in order to assist the Court on the issue.
Case Name: Amir Khan v. State of Assam and Anr.
Citation: 2022 LiveLaw (Gau) 8
The Gauhati High Court has held that its inherent power under section 482 CrPC is not to be exercised in a routine manner and it is only to prevent gross miscarriage of justice or secure the ends of justice. The Court thus refused to interfere with an order of the Chief Judicial Magistrate, declaring the petitioner to be a foreigner, following admission of guilt.
"The petitioner on being pleaded guilty and serving around one year sentence, has come up with the present petition with certain documents, which he never produced before the I/O as well as before the court, now challenged the impugned order, which cannot be accepted. There appears no any illegality in the order so passed to invoke the provision under Section 482 CrPC. The inherent power under Section 482 CrPC cannot be exercised in a routine manner unless it is shown that the miscarriage of justice has been done in a given case," the Court said.
Case Name: Mr. Jothapuia v. State of Mizoram
Citation: 2022 LiveLaw (Gau) 9
The Gauhati High court, in a criminal appeal, has held that when a Trial Court convicts an accused, it has to give him or her an opportunity of hearing on the sentence as mandated under section 235(2) of CrPC. The provision stipulates: If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
Case Name: Smt.Vanlalmawaii v. Sh. Laltanpuia
Citation: 2022 LiveLaw (Gau) 10
The Gauhati High Court, while hearing an appeal against a judgment of a Civil Court, has held that agreement of settlement arrived at Lok Adalat is deemed a decree of a civil court, and as such it is binding upon the parties. It further held that no appeal lies against it to any court and if any party wants to challenge such an award based on settlement, it can be done only by filing a petition under Article 226 and/or Article 227 of the Constitution.
4. Limitation | In This Age Of Electronic Communication, Govt Can't Take Advantage Of Inherited Bureaucratic Methodology To Justify Delay: Gauhati HC
Case Name : Union of India v. M/s Tenzing Construction
Citation: 2022 LiveLaw (Gau) 11
The Gauhati High Court has dismissed an appeal filed by the Union of India against an order of the trial Court refusing to condone the delay in filing an arbitration appeal under section 34 of Arbitration and Conciliation Act, 1996. The government had argued that the delay was due to official communication as its headquarters is situated outside of the State of Assam and Arunachal Pradesh.
The High Court noted that the law of limitation binds everybody, including the Government. Therefore, the Government, its various agencies and instrumentalities are not entitled to privilege in matter of condonation of delay due to procedural red tapism in the process, at least at this age of electronic communication.
Gujarat High Court
1. Encroachment Over Public Land Can't Be Retained Citing Right To Shelter: Gujarat High Court
Case Title: Bandhkaam Mazdoor Sangathan vs State Of Gujarat
Case citation: 2022 LiveLaw (Guj) 26
While dismissing a PIL seeking to restrain the Railway authority from evicting slum dwellers until rehabilitation, the Gujarat High Court has held that the right to shelter is not a ground to continue encroachment on a public land. The Bench comprising Chief Justice Aravind Kumar and Justice Ashutosh Shastri recalled the observations made by a previous Bench in this regard:
"The debate as regards the rights of encroachers over public land vis a vis the right to shelter should come to an end. The right to shelter and encroachment are two different facet. An encroacher may save himself from being forcibly evicted only if during his period of stay over the encroached public land any enforceable legal right has crystallized in his favour. Otherwise, merely by asserting the Right to Shelter , an encroacher, over public land, cannot say that he cannot be evicted."
Case Title: Rasidaben W/O Sidikbhai Daudbhai v. State Of Gujarat
Case citation: 2022 LiveLaw (Guj) 27
While inquiring into a Habeas Corpus petition filed by the Petitioner seeking the release of her son from Special Operational Group, the Gujarat High Court has remarked,
"the least that is expected of the person who has been given such wide and vital powers of recommending the deportation of a person on the basis that he is not an Indian national, is to avail an opportunity of hearing to the person concerned."
This observation was made in reference to the wide powers that the Central Government is vested with to inquire into the nationality of a person and deport the person if not found to be an Indian national.
3. Equitable Relief Of Interim Injunction At A Belated Stage Is Not Proper: Gujarat High Court
Case Title: Mohammad Iqbalbhai Abdulkarim vs Chhaganbhai Shambhubhai
Case citation: 2022 LiveLaw (Guj) 28
The Gujarat High Court has held that when a party approaches the Court with delay, grant of remedy of interim injunction may not be proper. Justice AP Thaker remarked,
"The Plaintiff had also kept silence for almost 8 years in instituting the suit after the execution of the agreement to sell, the equitable relief of interim injunction at a belated stage is not proper one to be granted in the facts and circumstances of the case."
Case Title: Firoz Hajibhai Sodha vs State Of Gujarat
Case citation: 2022 LiveLaw (Guj) 29
The statement by a co-accused under Section 25 of the Indian Evidence Act can be treated as a clue or piece of information for initiating and conducting an investigation to find out whether there is any independent and satisfactory material for further investigation, the Gujarat Court has clarified. The Bench comprising Justice Vipul Pancholi made this observation while hearing an application under Section 482 of CrPC seeking the quashing of the FIR for charges under sections 65(e), 116B, 81, and 98(2) of the Gujarat Prohibition Act and under sections 465, 468 and 471 of IPC.
Case Title: C.M. Smith And Sons. Ltd Through Deinesh Mohanlal Panchal Versus State Of Gujarat
Case citation: 2022 LiveLaw (Guj) 30
"It is a settled proposition of law that proceedings under Section 138 of the NI Act would lie only in respect of any 'enforceable debt'", the Gujarat High Court has observed today. The Bench comprising Justice Gita Gopi made this observation in connection with an application filed under Section 482 of CrPC, seeking the quashing of the order passed by the CJM Rajkot for offence under Section 138 of the Negotiable Instruments Act.
6. Gujarat High Court Grants Joint Custody Of Differently Abled Corpus To His Father & Major Daughter
Case Title: Krupa Chirag Patel Versus State Of Gujarat
Citation: 2022 LiveLaw (Guj) 31
In a peculiar case, where the corpus lost his memory up to 95% and his wife died by committing suicide, the Gujarat High Court has permitted the corpus' major daughter and his father to share joint custody of the corpus.
The Bench comprising Justice Sonia Gokani and Justice Mauna Bhatt further directed that once the second daughter of the corpus becomes a major, she will also have joint custody of the corpus and if, by then the corpus has completely cured and medically released, they can continue to look after him.
7. Depletion Of Sex Ratio Resulting Into More And More 'Exchange Marriages': Gujarat High Court
Case title - SANDIPKUMAR MANUBHAI PATEL Versus STATE OF GUJARAT
Case Citation: 2022 LiveLaw (Guj) 32
The Gujarat High Court has observed that the depletion of the sex ratio in the State of Gujarat is resulting in more and more cases of exchange marriages. It may be noted that it is a form of marriage involving an arranged and reciprocal exchange of spouses between two groups. The Bench of Justice Sonia Gokani and Justice Mauna M. Bhatt observed thus while hearing a case while uniting a couple after they were separated by the father of the woman as he wanted to marry her 'in exchange'.
Case Title: MINAKSHIBEN LAXMANBHAI PARALIYA Versus STATE OF GUJARAT
Citation: 2022 LiveLaw (Guj) 33
An order of termination referring to the FIR and case filed against the employee without conducting full departmental inquiry is bound to be stigmatic, the Gujarat High Court has observed today. The Bench comprising Justice Biren Vaishnav made this observation in a petition under Article 226 challenging the communication which terminated the services of the Petitioner. Accordingly, the Bench quashed and set aside the aforesaid communication.
Case Title: SAPNA GEHLOT W/O DEVENDRA SINGH GEHLOT THRU POA KULDEEP SINGH CHAUHAN Versus STATE OF GUJARAT
Citation: 2022 LiveLaw (Guj) 34
Emphasising the significance of a mother's guardianship in the upbringing of her children, the Gujarat High Court has directed that the Respondent-Husband to hand over the custody of the three young children to the Petitioner-Mother situated in New Zealand. Coming down heavily on the Respondent-Husband, the Bench comprising Justice Sonia Gokani and Justice Nirzar S Desai remarked tersely:
"Here is the husband who had with predesigned tact had taken the children away from natural guardian mother and the mother's passport also was taken away by him ensuring that she could not travel and could not follow him up. He also simultaneously initiated the legal proceedings for custody and divorce knowing fully well that the wife's passport was with him and she was unable to come to India."
Case Title: ARVIND LIMITED THROUGH AUTHO. REP. HARDIK MOTIWALA Versus SUO MOTU
Citation: 2022 LiveLaw (Guj) 35
Emphasising that the major source of environmental pollution from textile industry is the huge amount of wastewater discharged with high chemical load, the Gujarat High Court has stressed the significance of effluent management in the textile industries discharging wastewater in the Sabarmati River. The Bench comprising Justice JB Pardiwala and Justice Vaibhavi Nanavati has made this observation while declining reliefs to the textile industries which prayed the Court to permit the industries to reconnect the sewer lines to enable them to discharge industrial effluent into the sewer lines.
Case Title: HIRABHAI LAKHABHAI BHARWAD @ VIRABHAI LAKHABHAI BHARWAD Versus STATE OF GUJARAT & 5 other(s)
Citation: 2022 LiveLaw (Guj) 36
"When the land was sold in a public auction and when there is no condition attached to the said order of sale, then there can not be a feater of the rights of the person concerned to sale of the land in question", the Gujarat High Court has held.
The Bench comprising Justice AP Thaker made this observation in a petition challenging the order passed by the Special Secretary (Appeals) Revenue Department ('SSRD') vesting the Petitioner's land with the Government.
12. Gujarat High Court Grants Protection To Young Couple Wishing To Marry
Case Title: HITESHKUMAR NILESHBHAI PRAJAPATI Versus STATE OF GUJARAT
Citation: 2022 LiveLaw (Guj) 37
The Bench comprising Justice Sonia Gokani and Justice Mauna Bhatt while granting protection to a young couple wishing to marry each other, admitted the writ of habeas corpus seeking the release of Jayaben Shrimali from the care of the District Legal Service Authority, Banaskantha.
The Court had, on an earlier occasion, granted protection to the corpus who was interested in marrying the Petitioner Hiteshkumar Prajapati but was pressurised to state that he was below the age of 21 years. She was accordingly granted accommodation at a Women Protection Home until the Petitioner turned 21 year of age on 07.02.2022. She was granted security and basic amenities by the DLSA Full Time Secretary and the Administrator.
13. Employee Cannot Be Terminated Without Full Departmental Inquiry: Gujarat High Court
Case Title: DINESHBHAI DHUDABHAI PATEL Versus STATE OF GUJARAT and ORS
Case Citation: 2022 LiveLaw (Guj) 38
Gujarat High Court Bench comprising Justice Biren Vaishnav while allowing the Petition challenging the order terminating the Petitioner's services has observed as follows;
"The employer is not allowed to hire and fire even if the employee, maybe ad hoc or probationer, and the services cannot be given a go-bye by one stroke of pen on the ground of misconduct by casting stigma, without holding a regular inquiry in accordance with the principles of natural justice."
Case Title: SONALBEN BHANABHAI TADVI-MINOR THROUGH UNCLE & 2 other(s) Versus MADHUBEN BHAGUBHAI TADVI & 1 other(s)
Citation: 2022 LiveLaw (Guj) 39
Affirming that it is not necessary under Section 163A of the Motor Vehicles Act to prove that somebody else was driving the vehicle rashly and negligently which resulted in the death of the victim, the Gujarat High Court has imposed liability on the insurance company to pay compensation to the family of the deceased.
The Bench comprising Justice Sandeep N Bhatt ordered this in connection with the First Appeal filed under Section 173 of the MV Act by the Appellants who were dissatisfied with the award of the Motor Accident Claims Tribunal.
Jharkhand High Court
Case Title: Sanjay Kumar Aggarwal v. The State of Jharkhand & Ors.
Citation: 2022 LiveLaw (Jha) 13
The Jharkhand High Court has recently reiterated that the writ court does not sit in appeal against the orders passed in departmental proceedings, particularly when there are concurrent findings concerning the proved charges. Referring to the precedent in Pravin Kumar v. Union of India, Justice Anubha Rawat Choudhary noted,
"This Court finds that in the instant case the petitioner has not been able to point out any perversity or illegality or errors of law/ procedural errors leading to manifest injustice or violation of principles of natural justice in the enquiry proceedings or in findings recorded by the disciplinary authority based on the enquiry report. The appellate Court affirmed the order of the disciplinary authority and found that no ground for interference was called for in the findings expressed by the disciplinary authority."
Karnataka High Court
Case Title: Kamal Pant v. State of Karnataka Case No: Writ Petition No.21264 OF 2021
Citation: 2022 LiveLaw (Kar) 39
The Karnataka High Court recently quashed the proceedings initiated against Bengaluru Police Commissioner Kamal Pant and two other police officers, for alleged commission of an offence under Section 166A IPC which pertains to disobedience of law by a public servant. It includes refusal of a Police officer to record any information given to him under Section 154(1) CrPC in relation to cognizable offences pertaining to sexual harassment.
Case Title: Joswin Lobo v. State of Karnataka Case No: Criminal Petition No.6916/2021
Citation: 2022 LiveLaw (Kar) 40
The Karnataka High Court has said there is no bar on a police officer, who is a gazetted officer, on carrying out a personal search to draw a mahazar, on an accused/ suspect under the Narcotic Drugs and Psychotropic Substances Act, 1985. A single judge bench of Justice H P Sandesh said, "Assistant Commissioner of Police is also a Gazetted Officer...Search by the officer of the said department is not a bar and no law prescribes that he (suspect/accused) should be subjected to the personal search in the presence of the Gazetted Officer not belonging to the particular department."
Case Title: Ramesh Malli v. The Deputy Inspector General Of Wireless Case No: W.P. No. 104944/2021
Citation: 2022 LiveLaw (Kar) 41
The Karnataka High Court has said that a probationer in the Karnataka police department cannot be terminated on the grounds of misconduct without carrying out an inquiry under the Karnataka Civil Service (Probation) Rules, 1977. A division bench of Justice S.G. Pandit and Justice Anant Ramanath Hegde said, "It is true that the petitioner has no right to hold the post and he can be terminated at any time during or at the end of the probationary period for general unsuitability, but a probationer cannot be discharged imputing allegations amounting to misconduct. If any misconduct is alleged, then enquiry under Rule 7 of '1977 Rules' is necessary."
Case Title: Resham & Anr v. State of Karnataka
Citation : 2022 LiveLaw (Kar) 42
The Karnataka High Court on Friday uploaded the interim order passed in the petitions challenging Hijab ban in colleges in the state. The Court has requested the State to re-open the educational institutions at the earliest and has restrained students from wearing any sort of religious clothes in classrooms, regardless of their faith, while the matter is pending hearing. The interim order is only applicable to those institutions which have prescribed a uniform dress code.
Case Title: Taghar Vasudeva Ambrish v. Appellate Authority For Advance Ruling Karnataka Case No: W.P. No.14891 OF 2020
Citation: 2022 LiveLaw (Kar) 43
The Karnataka High Court has held that an owner of a building can claim tax exemption under the Goods and Services Act (GST) if the residential premises leased out are used as a hostel to house students and working professionals.
A division bench of Justice Alok Aradhe and Justice M I Arun while allowing the petition filed by one Taghar Vasudeva Ambrish said, "The service provided by the petitioner i.e., leasing out residential premises as hostel to students and working professionals is covered under Entry 13 of Notification No.9/2017 dated 28.09.2017 namely 'Services by way of renting of residential dwelling for use as residence' issued under the Act. The petitioner is held to be entitled to benefit of exemption notification."
Case Title: Indian Institute of Management Bangalore v. Daivanti Thakare Case No: WA 91/2022
Citation: 2022 LiveLaw (Kar) 44
The Karnataka High Court has dismissed an appeal filed by the Indian Institute of Management (Bangalore), challenging an order of the Single Judge bench by which it had set aside the order of the Institute, expelling nine students caught for exam malpractice. A division bench of Chief Justice Ritu Raj Awasthi and Justice Suraj Govindaraj said, "We do not find any infirmity or illegality in the view taken by the learned Single Judge and as such, do not consider it to be a necessary case for interference. The writ appeal is dismissed."
The Karnataka High Court has quashed the circular issued by the Bruhat Bengaluru Mahanagara Palike (BBMP), dated 29.2.2016 by which it directed property owners to relinquish the properties earmarked for road widening in the master plan, free of cost as a condition precedent for processing their applications for sanctioning of building plans.
Hijab Ban Reports:
The Karnataka High Court on Tuesday appealed to the students' community and the public at large to maintain peace and tranquillity, while the hearing in the hijab case was going on. A single-judge bench of Justice Krishna S Dixit made the appeal while hearing a batch of petitions filed by Muslim girl students challenging the hijab ban imposed in their colleges. They seek a declaration that the wearing of hijab is a fundamental right of Muslims as an essential religious practice.
The State government has told the Karnataka High Court that it is not interested in interfering with the religious beliefs but is only concerned to maintain uniformity, cohesiveness, discipline and public order which is indispensable to an educational institution. In the statement of objection filed in response to the batch of petitions filed challenging the action of colleges stopping muslim girls from wearing a Hijab (head scarf) to colleges, the state government has said, "The very purpose of uniform and dress code is to maintain equality among the students and maintain dignity, decorum and discipline in the institution."
The Karnataka High Court today commenced hearing a writ petition filed by a Muslim girl student challenging the action of a government college in denying her entry for wearing a hijab (headscarf).
Justice Krishna S. Dixit has requested the student community and the public at large to refrain from taking onto the streets in connection with the issue and indulging in parallel protests. The Judge orally remarked, "People should have faith in Constitution. Only a mischievous section will keep the issue burning. But making agitation, going on the street, shouting slogans, attacking students, students attacking others, these are not good things. Do not disturb the Court. You should leave the judges to peace. So I appeal to all people to maintain peace and tranquility."
4: Hijab Ban: Karnataka High Court Refers Matter To Larger Bench, No Interim Relief
The Karnataka High Court has referred to a larger bench, the writ petitions filed by Muslim girl students challenging the action of a government college in denying her entry for wearing a hijab (headscarf). Justice Krishna S. Dixit noted that matter gives rise to certain constitutional questions of seminal importance qua personal law, which must be decided by a larger Bench. It directed the Registry to place the papers before the Chief Justice for consideration immediately, considering the urgency pleaded in the petitions.
A Full Bench of the Karnataka High Court will hear tomorrow the petitions challenging the ban of hijab (head scarf) in colleges. Today, a single bench of Justice Krishna S Dixit had referred the petitions filed by Muslim girl students to a larger bench, observing that important questions relating to constitutional rights and personal law are involved.
A bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi will hear the petitions tomorrow at 2.30 PM. While making the reference, the single bench had declined to pass interim orders permitting the students to attend colleges wearing hijab, observing that the interim relief also has to be considered by the larger bench
Other reports
The Full bench of the Karnataka High Court has resolved to place the portrait of Dr. B.R.Ambedkar, Architect of the Constitution of India, in all official functions of the courts.
As per the circular issued on February 4, the portrait is allowed to be placed during functions such as Republic Day on 26th January, Independence Day on 15th August and Constitution Day on 26th November in the High Court of Karnataka, Principal Bench at Bengaluru, Benches at Dharwad and Kalaburagi and also in District and Taluka Courts in the State.
Case Title: Vijayan Menon v. Secretary Urban Development Department Case No: WP 42927/2015
The Karnataka High Court on Monday sought for an explanation from the Bruhat Bengaluru Mahanagara Palike (BBMP) as to what arrangement was made for using another technology in place of the Automatic Pothole Filling machines, in case they were not ready to renew the contract of a private agency, which was providing the same. A division bench of Chief Justice Ritu Raj Awasthi and Justice Sachin Shankar Magdum said, "Why the arrangement was not made in advance and why they were waiting till now and now wants time to float tender etc to get the required machines," needs to be explained.
3: Senior Advocate Aditya Sondhi Withdraws Consent For Elevation As Karnataka HC Judge
Senior Advocate Aditya Sondhi of the Karnataka High Court, who was recommended to be appointed as a judge of the High Court has withdrawn his consent for elevation. Confirming his withdrawal to Live Law, Sondhi said, "I have written to the collegium on February 4 in the light of the fact that it has been a year since my recommendation and five months since the reiteration".Kerala High Court
1. Delay Fatal Only If Parties Attempt To Obtain Any Unfair Advantage : Kerala High Court
Case Title: State of Kerala v. Sunil N.S. @ Pulsar Suni & Ors.
Citation: 2022 LiveLaw (Ker) 63
The Court ruled that a delay in filing an application only becomes fatal if by allowing such application, the applicant obtains an unfair benefit or if any prejudice will be caused to the opposite party in the case. Justice Kauser Edappagath while partly allowing a petition seeking to re-examine 7 witnesses and summon 9 additional witnesses observed that the delay in filing the application could be discounted since the prayer herein was only to produce the original documents which were already marked.
Case Title: P. Gopalakrishnan alias Dileep & Ors v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 64
The Court allowed the anticipatory bail plea moved by actor Dileep and other accused in the alleged criminal conspiracy to kill police officers investigating the sensational 2017 sexual assault case. Justice Gopinath P. pronounced the highly-anticipated verdict after two weeks of elaborate hearing. "Your apprehensions regarding non-cooperation with the investigation can be addressed by conditions", the Court informed the Prosecution while dictating the order. It was also clarified that if these conditions were violated, the prosecution was entitled to apply for arrest.
3. For Abetment By Conspiracy, Mere Agreement Not Enough; Something Must Be Done: Kerala High Court
Case Title: P. Gopalakrishnan alias Dileep & Ors v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 65
The Court while granting pre-arrest bail to Malayalam actor Dileep and other accused reiterated the clear distinction between the offences of abetment by conspiracy and criminal conspiracy. Upon referring to several decisions on this issue, Justice Gopinath P. decided that while an illegal omission or act is necessary to constitute an offence of abetment by conspiracy, mere agreement is sufficient to amount to criminal conspiracy.
Case Title : PV Kassim v. Kakkattiri Juma Masjid Mahallu Committee & Ors
Citation: 2022 LiveLaw (Ker) 66
In a notable judgment, the Court has held that ex-communication or externment, whether declared or undeclared, is illegal and impermissible under the Wakf Act. The Court further declared that any bye-law or scheme in relation to the administration of the Wakf Property authorising ex-communication is also illegal as it infringes the fundamental rights guaranteed by the Constitution. Justice SV Bhatti and Justice A Badharudeen were deciding a civil revision petition challenging the orders of the Wakf Tribunal and the State Wakf Tribunal.
Case Title: V.V. Abraham v. Chengannur Municipality & Ors.
Citation: 2022 LiveLaw (Ker) 67
The Court held that the Secretary of a Municipality is empowered to issue notice and initiate suitable action if a building construction is found to be proceeding illegally within their jurisdiction. A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed so while dealing with a set of appeals filed under the Kerala Municipality Act and the Kerala Municipality Building Rules.
Case Title: Madhyamam Broadcasting Limited v. Union of India and connected matters
Citation: 2022 LiveLaw (Ker) 68
The Court upheld the order passed by the Union Ministry of Information and Broadcasting to not renew the license granted to Malayalam news channel MediaOne for broadcast. The Court dismissed the writ petition filed by Madhyamam Broadcasting Ltd (the company running the channel) challenging the Union's decision. Justice N. Nagaresh held that after perusing the files from the Union Ministry of Home Affairs, it has found intelligence inputs that justify the denial of security clearance to the channel.
Citation: 2022 LiveLaw (Ker) 69
The Court took suo motu cognisance of a news report alleging that in Sree Poornathrayeesa Temple, Tripunithura, devotees were made to wash the feet of 12 brahmins for the atonement of their sins. A Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar initiated the suo motu case. The incident came to light after a Malayalam daily Kerala Kaumudi published a report on February 4 citing that such a practice was being followed at the temples as part of 'Panthrandu Namaskaram'.
Case Title: Joel K. Yoyakkim v. Sub Registrar & Ors.
Citation: 2022 LiveLaw (Ker) 70
The Court has ruled that when an Indian citizen intends to solemnise their marriage with an OCI (Overseas Citizen of India) Cardholder, any declaration evidencing their single status would be sufficient to register their marriage in India if the concerned foreign embassy does not issue certificates to that effect due to prevailing laws. Justice N. Nagaresh also opined that this was deemed necessary since no one can be compelled to perform an unattainable task that hinders the registration of their marriage.
Case Title: Nimmy Rose James v. Life Insurance Corporation of India & Ors.
Citation: 2022 LiveLaw (Ker) 71
The Court held that even if a statute does not provide for granting an opportunity of hearing to parties, principles of natural justice have to be read into the statute. While allowing a plea moved by a woman who was terminated from service without personal hearing, Justice Murali Purushothaman held that such a termination order was violative of the principles of natural justice.
Case Title: Peggy Fen v. Central Board of Film Certification & Ors.
Citation: 2022 LiveLaw (Ker) 72
The Court while dismissing a plea seeking to remove Malayalam movie Churuli from OTT platform SonyLiv for its allegedly excessive use of obscene language, observed that a filmmaker has the discretion to decide what type of language should be used by the characters in his film. Justice P.V. Kunhikrishnan added that as long as the language used in a movie was within the contours of the reasonable restrictions imposed on freedom of speech and expression under Article 19(2) of the Constitution of India,
Case Title: Peggy Fen v. Central Board of Film Certification & Ors.
Citation: 2022 LiveLaw (Ker) 73
The Court while dismissing a petition filed against the Malayalam movie 'Churuli' appealed to the lawyers to refrain from making comments on mainstream or social media about a judgment before reading it. Justice P.V. Kunhikrishnan opined that the lawyers should act as the mouthpiece of the judiciary and only engage in fair criticism of a judgment. However, it clarified that not all members of the Bar make such 'immature' comments and that the message was meant for the handful who engage in such practice.
Case Title: Sundareswaran K. & Ors v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 74
The Court ruled that to attract the offence of cheating, the person making the false representation should have knowledge of the fallacy and yet have proceeded to represent the same to another party with the intention of deceiving them. While partly allowing a petition, Justice Sophy Thomas observed that issuance of a faulty test result from an accredited Medical Laboratory will not amount to cheating if there was no intention to deceive. The Court also added that an act does not amount to cheating unless there was deception from the very outset of the transaction.
Case Title: Dr. Uthara v. Dr. Sivapriyan
Citation: 2022 LiveLaw (Ker) 75
In a noteworthy judgment, the Court made several important observations on matrimonial cruelty and the scope of revival of condoned matrimonial offences. A Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas dismissed an appeal filed by a woman seeking to reverse the order of a Family Court which rejected her plea for divorce finding that she had failed to prove any form of matrimonial cruelty allegedly meted out on her.
Case Title: Mahin K.E v. Kalamassery Service Cooperative Bank & Ors.
Citation: 2022 LiveLaw (Ker) 76
The Court ruled that filling up of vacancies over and above the notified vacancies are not permissible in law since it amounts to filling up of future vacancies. Justice Raja Vijayaraghavan noted that the impugned advertisement was only for one post and that the candidate who secured the first rank had already joined the post. Under such circumstances, the bank could not have appointed any further person by preparing a rank list.
15. Teacher Who Administers Moderate Force On Pupil To Enforce Discipline Without Malicious Intention Can't Be Fastened With Penal Liability: Kerala High Court
Case Title: Jaya v. State of Kerala & Ors
Citation: 2022 LiveLaw (Ker) 77
The Court held that a teacher who administers a reasonable force on a pupil without any malicious intention to enforce discipline in a classroom should not be fastened with criminal liability. Holding so, Justice Kauser Edappagath discharged a teacher against whom the trial court had framed charges, finding that there was no sufficient ground for proceeding against her.
Other Significant Developments:
16. Monson Mavunkal Moves Kerala High Court Seeking Bail In Sexual Assault Case
Case Title: Monson Mavunkal v. State of Kerala & Anr.
Infamous fake antique dealer Monson Mavunkal has approached the Court seeking bail in the case where a woman has accused him of sexually abusing her. Justice Gopinath P. directed the Public Prosecutor to get instructions in the matter and posted it on February 15. According to Mavunkal, the woman was anxious of being implicated as a co-accused in various financial crimes and this prompted her to turn against him.
17. [MediaOne Ban] Kerala High Court Reserves Order On Appeal
Case Title: Madhyamam Broadcasting Limited v. Union of India
The Court reserved its orders in the appeal moved by Malayalam news channel MediaOne against the single judge order upholding the recent ban imposed on it by the Ministry of Information and Broadcasting. A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly heard the matter at length. The Court prima facie opined that from a bare reading of the provisions it seemed that revocation was a penalty.
18. Plea Against Lokayukta Ordinance: Kerala High Court Seeks State Response
Case Title: R.S. Sasikumar v. State of Kerala
The Court admitted a plea assailing the recent amendment to Section 14 of the Lokayukta Act for allegedly diluting the judicial powers of the Lokayukta introduced by way of an ordinance and sought a response from the State government. A Division Bench of Chief Justice S Manikumar and Justice Shaji P Chaly also passed an interim order declaring that any decision taken by the authority constituted by way of the impugned ordinance during the proceedings will be subject to the outcome of the petition.
Case Title: Pravasi Legal Cell v. State of Kerala
The Court asked the State to produce on record the letter penned by Chief Minister Pinarayi Vijayan addressed to the Prime Minister apparently seeking permission to disburse amounts from the State Disaster Funds to families of those Indians, who died abroad of Covid-19. Justice N Nagaresh also directed the petitioner to implead the Central government and the National Disaster Management Authority in their plea seeking a declaration that the family members of a non-resident of the State, who died abroad due to COVID-19, are entitled to ex-gratia relief of Rs. 50,000.
Madhya Pradesh High Court
Case Title: Rajlakshmi Foundation v. The State Of Madhya Pradesh
Case citation: 2022 LiveLaw (MP) 28
The Madhya Pradesh High Court, Indore Bench recently dismissed a PIL that sought for transfer of power of a Family Court in respect of deciding custody of a child, to the Child Welfare Committee (CWC). The division bench of Justice Vivek Rusia and Justice Rajendra Kumar (Verma) also imposed a cost of Rs. 10,000 on the Petitioner, calling the petition to be "nothing but a misuse of the process of law".
Case Title: Rahul Islam Khan and Anr. v. State of Madhya Pradesh
Case citation: 2022 LiveLaw (MP) 29
The Madhya Pradesh High Court recently rejected the second bail application moved by the accused under the provisions of the Narcotics Drugs and Psychotropic Substances Act, 1985 along with M.P. Drugs Controls Act, 1949 on the ground that cases of drug abuse are on the rise, which is adversely affecting the young generation.
It also made reference to the effects of organized activities of the underworld and the clandestine smuggling of narcotic drugs on adolescents and students, as notice by the Supreme Court.
Case Title: Harish Chandra Hinunia v. Food Corporation Of India
Case citation: 2022 LiveLaw (MP) 30
The Madhya Pradesh High Court recently prohibited departmental inquiry against an employee with respect to a charge identical to the one for which he was under trial in a criminal case. Justice Atul Sreedharan cited two reasons for doing so:
First, the charge against the employee under Section 7 of the Prevention of Corruption Act involved complicated questions of fact and law.
Second, both proceedings involved same set of witnesses which may lead to disclosure of the accused's defence in the course of the departmental enquiry, and may hamper fair trial if it comes to the knowledge of the prosecution.
Case Title: Madhav Shrama v. State of Madhya Pradesh
Case citation: 2022 LiveLaw (MP) 31
The High Court of Madhya Pradesh recently dismissed a petition filed by a NEET candidate seeking directions of the Court to allow him to change his domicile status to M.P. on his counselling form, since the last date of registration had passed. Citing Rule 6 of the Madhya Pradesh Medical Education Admission Rules, 2018 (hereinafter referred to as, "the Admission Rules"), the division bench of Justice Sujoy Paul and Justice Arun Kumar Sharma held-
Case Title: Subhash Chandra Vs Union Of India And Others
Case citation: 2022 LiveLaw (MP) 32
The High Court of Madhya Pradesh recently reprimanded the Jabalpur Bench of Central Administrative Tribunal for venturing into foreign territory and rendering a finding on the caste status of the Petitioner as the same was beyond its jurisdiction.
The division bench comprising of Justice Sheel Nagu and Justice Sunita Yadav was essentially dealing with a writ petition, wherein the Petitioner was challenging two orders passed by the Jabalpur Bench of the Central Administrative Tribunal (CAT). The Tribunal had dismissed his application on merits and on ground of limitation.
Madras High Court
Case Title: A. Radhakrishnan v. Secretary to Government & Ors.
Citation: 2022 LiveLaw (Mad) 49
Shocked with the allegations about illegalities and frauds related to temple properties, the Madras High Court has held that the state should undertake immediate measures to prevent the looting of temples.
Case Title: The Adjudicating Authority under the Prohibition of Benami Property Transactions Act, 1988 & Anr. v. Anuttam Academic Instituitions Private Limited & Anr.
Citation: 2022 LiveLaw (Mad) 50
In a recent judgment, Madras High Court has held that a reasonable delay in communication of the order will not be counted as non-compliance of the limitation prescribed under Section 26(7) of the Prohibition of Benami Property Transactions Act, 1988. Since the application of the limitation period is uninfluenced by such delay, the court has also clarified that the delay won't negate the validity of the order passed under Section 26(3) of the Act by adjudicating authority.
"...in cases where 'the date of the order' and 'the date of receipt of the order' are separated by considerable time, it is only the date of receipt of the order, which would be material for the purpose of calculating the limitation for appeal and this factor cannot have any bearing on the validity of the orders impugned in the writ petition."
Case Title: R. Henry Paul v. the State of Tamil Nadu
Citation: 2022 LiveLaw (Mad) 51
Reiterating that the date of remand will be computed while considering an application for statutory bail, Madras High Court observed that the right to default bail is part of the procedure established by law under Article 21 of the Constitution, hence an indefeasible fundamental right.
The single-judge bench of Justice M. Nirmal Kumar was considering the plea by a POCSO accused, seeking directions to the Special Court For Exclusive Trial under POCSO Act to grant default bail on an application filed under Section 167(2) CrPC.
Case Title: The Mylapore Club v. The Joint Commissioner/ Executive Officer & Anr.
Citation: 2022 LiveLaw (Mad) 52
In a dispute regarding payment of rent to Kapaleeswar temple by Mylapore Club, the Madras High Court has observed that the writ jurisdiction cannot be invoked in a routine manner against a show-cause notice or demand notice issued by competent authorities.
The court also held that the Mylapore club will be bound to pay fair rent fixed under Section 34 (A) (1) of the Hindu Religious & Charitable Endowments Act (hereinafter 'Act') with regards to the temple land leased out to them
Justice S.M Subramaniam dismissed the writ petition as devoid of merits and noted in the order that the club has the liberty to approach the competent authority in case of a dispute regarding the rental amount fixed as shown in the demand notice.
The court also reasoned that the power of judicial review under Article 226 has been provided to ensure whether the processes through which a competent authority takes a decision is in consonance with the applicable Acts and Rules. The writ jurisdiction is not meant to be invoked for show cause notices or demand notices by competent authorities.
Case Title: Susi Ganesan v. Leena Manimekalai & Anr.
Citation: 2022 LiveLaw (Mad) 53
The Madras High Court has refused to grant leave to film Director Susi Ganesan to appeal against the decision of a single bench which quashed the Regional Passport Office's order for impounding the passport of renowned filmmaker, poet and artist Leena Manimekalai.
The first bench of Acting Chief Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy observed that there is no substance in Ganesan's plea, especially after the Supreme Court has refused to interfere with the single bench order.
6. '10 Yrs Elapsed, CBI Couldn't Even Determine Motive, Unfortunate': Madras High Court Constitutes SIT To Probe Murder Of DMK Minister's Brother
Case Title: N. Ravichandran v. The Director of Central Bureau of Investigation & Ors.
Citation: 2022 LiveLaw (Mad) 54
In the ten-year-old gruesome murder case of K.N. Ramajayam in the heart of Trichy City, Madras High Court has ordered the constitution of a Special Investigation Team in the hopes that a logical conclusion will be reached about the culprit and the motive behind the murder. The deceased was the brother of DMK Minister KN Nehru.
A single-judge bench of Justice V. Bharathidasan pronounced the orders on a plea filed by N. Ravichandran, one of the brothers of the deceased, seeking transfer of investigation from Central Bureau of Investigation to Tamil Nadu State Police.
The Court however noted that the state police investigated the case for nearly five years, and therefore, retransferring the case to TN Police wouldn't be fruitful.
"...It is a very unfortunate situation. The fundamental rights guaranteed under Articles 20 and 21 of the Constitution of India, not restricted only to fair and speedy trial, it also guarantees fair and speedy investigation. The fair and speedy investigation would only lead to advancement of justice and instill confidence in the mind of the victim as well as public. A fair and speedy investigation only would take the case to its logical conclusion."
Case Title: Bharat Heavy Electricals Ltd. v. Sudhir Cranes Pvt. Ltd.
Citation: 2022 LiveLaw (Mad) 55
Justice S.S. Sundar analyzed the pleadings and noted that no new ground is added which is either outside the scope of the original Arbitral proceedings or without the factual background. The Court was unable to find any new ground for which no foundation is laid in the application for setting aside the award under Section 34.
In regard to the application of principles of Order VI Rule 17 CPC to an amendment application under Section 34 of Arbitration Act, the court ruled that it cannot be applied. But the court was of the view that some amount of discretion in the matter of amendment is still available with the Court and the Court cannot refuse unless the Court has reasons to believe that the amendment proposed are not legitimate or that the amendment is likely to take away the right accrued to the other side
Case Title: Rangarajan Narasimhan v. Additional Chief Secretary To Government & Ors. & Other Matters
Citation: 2022 LiveLaw (Mad) 56
Today, Madras High Court has heard a batch of writ petitions filed in public interest seeking various directions to the HR & CE Department for correcting the alleged lapses in the administration of temples.
One of the major issues was an allegation pertaining to the live telecast of Prime Minister Narendra Modi's speech from Kedarnath in 16 TN Temples on the occasion of dedicating the rebuilt samadhi of Adi Shankaracharya.
Narasimhan primarily contended that the respondents must be prevented from hosting gatherings that are of a political nature since the recognised religious practises and Agama Sastras prohibit such meetings.
On the issue of telecasting of the Prime Minister's speech, the court observed in the order that the materials produced point towards the following conclusion: "The petitioner in person has referred to the last paragraph of the speech in which the Prime Minister has appreciated the efforts of Uttarakhand Government in controlling the pandemic as showcasing the political agenda prohibited under Sections 3-5 of the Act. We find that the Prime Minister's speech refers to religious issues and contributions of Adi Shankaracharya since the programme was for rededicating the statue. Referring to the last paragraph of the speech about 'devabhoomi' which is otherwise known as Uttarakhand, development of Chardham for promoting pilgrimage and development of other religious places are given along with the mention about controlling Covid-19. It cannot be said to be propagating the political propaganda", the court noted.
Case Title: Maridhas v. S.R.S Umari Shankar
Citation: 2022 LiveLaw (Mad) 57
The Madurai bench of Madras High Court has quashed a defamation case pending against YouTuber M. Maridhas for targeting Dravida Munnetra Kazhagam (DMK) over the announcement urging its cadre to draw 'Kolams' as a form of Anti-CAA Protest.
Justice G.R Swaminathan quashed the case pending in the file of the Thootukudi Judicial Magistrate after observing that the complainant, S.R.S Umari Shankar, is not an aggrieved party and the continuation of the case would be an abuse of the legal process.
The origin of the case can be traced back to Advocate Gayathri Kanthadai who resorted to a novel form of Anti-CAA protest in Besant Nagar by drawing 'kolams' containing slogans. The Advocate was detained by the police that drew ire from the then opposition party, DMK. Later, the Tamil Nadu Police alleged that the detained advocate was associated with Pakistan based NGO "Bytes for all". Before that, DMK had urged the party members to imitate the Advocate's form of protest across Tamil Nadu. Afterwards, a video was uploaded by Maridhas in January, 2020, allegedly defaming DMK Party and Advocate Gayathri Kanthadai.
The complainant had previously submitted before the court that he was a party man and an office bearer of DMK.
"The petitioner (Maridhas) had only made imputations against Ms.Gayathri Kanthadai and DMK. No imputation has been made against DMK partymen as such. The complainant has not suffered any legal injury. His reputation has not in any way been lowered. The Party has not authorised the filing of the complaint. If the partymen or the members of DMK had been defamed, then as a member of a definite class of people, the respondent could have maintained the complaint. Such is not the case here. The complainant on his own has filed the complaint", the court clarified in the quashing order.
Case Title: S. Vasanthi v. M. Baggyalakshmi, Inspector of Police
Citation: 2022 LiveLaw (Mad) 58
In a contempt petition filed against a Police Inspector alleging willful disobedience of the court order, Madras High Court observed that the police department is running with 90 per cent corruptive officers as on date.
Justice P. Velmurugan remarked that the Department is also plagued by police officials not having the required expertise to go forth with an investigation. According to the judge, only 10 per cent of the officers are 'honest and abled' but they alone cannot do all the investigation.
"...Though this Court finds that the capacity of the investigating officer is not up to the mark, and within her capacity she has investigated the case, the incapacity of the investigation officer cannot be treated as wilfully disobeying of the order of this Court. Unfortunately, as on date, the police department is running with 90% of the corruptive officers as well the officers not having adequate capacity to do the investigation and only 10% of the officers are honest and abled officers. The 10% of officials alone cannot do all the investigation."
Case Title: Prof. M.K Surappa v. The Joint Secretary, Department of Higher Education & Ors.
Citation: 2022 LiveLaw (Mad) 59
The Madras High Court has ordered the TN Higher Education Department to furnish a copy of the Justice P.Kalaiyarasan Inquiry Report to Professor M.K Surappa on the allegations levelled against him.
Directing the respondent department to make available a copy of the report to the former Anna University Vice Chancellor within fifteen days, Justice V. Parthiban noted that failure to furnish inquiry report to the petitioner at this stage would lead to 'travesty of justice, opposed to fair play and good conscience' and Article 311(2) of the Constitution.
Upon receipt of the report copy, the former VC can opt to submit his objections within four weeks.
"....From the conjoined reading of the case laws, the Courts have consistently ruled that there cannot be any slightest departure from complying with the principles of natural justice, namely furnishing of copy of the inquiry Report before the disciplinary authority forms an opinion on the inquiry Report. Such mandate in the opinion of this Court is the sublimest hallmark of fair play and good conscience in action consistent with the constitutional imperatives", the single bench observed.
Case Title: Dr. Elizabeth Rajan, Daughter of late Mr.Thanarajan v. The Inspector General Of Registration & Ors
Citation: 2022 LiveLaw (Mad) 60
Answering the question of whether a sale deed registered with a power of attorney that was executed in Malaysia is valid or not, Madras High Court has held that the notarial acts of notaries in the foreign countries can be given legal recognition by Indian Courts even in the absence of 'reciprocity' under Section 14 of the Notaries Act.
The Division Bench of Justice Pushpa Sathyanarayana and Justice Krishnan Ramasamy observed that once the original document of power of attorney executed and attested as given in Section 85 of the Evidence Act is produced, it is open to the court to presume that all the necessary requirements for the proper execution of Power of Attorney have been duly fulfilled.
"...Therefore, the purpose of Section 85 is to cut down recording of evidence for such matters like the due execution of Power of Attorney etc., in the present day international commerce. The words 'Notary Public' in Section 85 not only applies to Notaries appointed in India but also include the Notary Public of foreign countries. For raising the statutory presumption, Sections 57 and 85 do not require any recognition of notarial acts of the country or place, as the case may be where such Power of Attorney is executed or authenticated. In fact, there is nothing in the language of Section 14 which requires that only those notarial Acts which are declared as recognized by the Central Government by notification in the official gazette, are to be recognized in India", the court noted.
Case Title: A. Thilakam v. The Joint Director/ Appellate Authority & Anr.
Citation: 2022 LiveLaw (Mad) 61
Madras High Court has recently observed that the second appeal under Section 24 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 is not restricted to the dismissal, removal or reduction in rank or termination of appointment alone.
The single-judge bench of Justice S.M Subramaniam has categorically stated that the appeal remedy before the tribunal under Section 24 extends to any alteration of service conditions in Section 23 after exhausting the right to seek relief before the competent authority, i.e, the first appeal.
Under the Act, the competent authority includes the Joint Director of Elementary Education (Aided Schools) and the tribunal empowered is the respective jurisdictional Principal Sub Court.
"The language employed in Section 24 is that a teacher or other person or the educational agency are entitled to prefer the second appeal. Therefore, even in respect of minor punishment falling under Section 23(b), the educational agency or the teacher or other person may file a second appeal... The second appeal is not restricted with reference to the dismissal, removal or reduction in rank or termination of appointment alone...", the court observed.
Case Title: Vellore Institute of Technology, Represented by its Chairman and Managing Trustees v. The Central Board Of Direct Taxes & Anr. and Others.
Citation: 2022 LiveLaw (Mad) 62
The Madras High Court has recently set aside a number of reassessment notices issued under the 1961 Income Tax Act by iterating that the Taxation Relaxation Act, 2020 only extends the period of limitation and not the application of repealed provisions in light of the amended provisions effective from 1st April, 2021.
The first bench of Acting Chief Justice Munishwar Nath Bhandari and Justice PD Audikesavalu followed the previous judgments by Allahabad and Delhi High Courts and held that the procedure contemplated under the amended provisions from Sections 147-151 of the Act ought to have been followed for the issue of reassessment notices. The court underscored that Section 3(1) of the enabling act of Taxation and Other Laws (Relaxation and Amendment Of Certain Provisions) Act, 2020 (TOLA, 2020) does not control the validity of amended reassessment provisions and there is not a saving clause in the amended Act to save the pre-existing provisions or defer the operation of substituted provisions.
Other Important Developments
15. 'We Are A Secular Country; There Is An Effort To Divide The Country By Religion': Madras HC CJ
Case Title: Rangarajan Narasimhan v. Additional Chief Secretay To Government & Ors.
While hearing a public interest litigation before Madras High Court to mandate the customary dress code for entry inside temple complexes, Chief Justice Munishwar Nath Bhandari expressed anguish at the divisive narratives in the name of religion.
Reminding that our country is a secular country, the Chief Justice cautioned that there is an effort to divide the country by religion.
" What is of paramount importance? Country or religion? It is really shocking to see that somebody is for Hijab, some others are for dhotis inside temples. Is this one country or is it divided by religion?", the Chief Justice asked.
16. Justice Munishwar Nath Bhandari Appointed As Chief Justice Of Madras High Court
Justice Munishwar Nath Bhandari has been appointed as the Chief Justice of Madras High Court. In exercise of the powers conferred under Clause (1) of Article 217 of the Indian Constitution, the President of India in consultation with the Chief Justice of India has made the appointment, states the notification issued by Additional Secretary (Ministry of Law & Justice) dated 10th February, 2021.
Case Title: Digital News Publishers Association & Anr v. Union Of India & Anr. & Connected Matters
In a batch of writ petitions challenging the constitutional validity of Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021, Madras High Court has instructed the parties to argue soon since there is no interim order from the apex court restraining the Court.
The first bench of Chief Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy listed the matter on 25th February for enabling the parties to argue on the constitutional validity of IT Rules.
Case Title: S.P Chockalingam v. Principal Chief Conservator of Forests & Ors.
In a public interest litigation filed for effective implementation of a 2019 notification issued by the Erode District Collector banning traffic movement in Sathyamangalam Tiger Reserve, the Madras High Court has directed that the restriction should come into force from February 10, 2022.
The first bench of Acting Chief Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy was hearing the petitioner in person, S.P Chockalingam, who alleged that nearly 155 animals have lost their lives due to the non-implementation of the District Collector's order.
According to the Erode District Collector's order, plying of commercial vehicles on the stretch of National Highway between Bannari and Karapallam within the tiger reserve from 6 pm- 6 am was banned. Similarly, the Collector's order also restrained private vehicles, light commercial vehicles and other four-wheelers from plying on this stretch between 9 pm - 6 am.
Case Title: T. Elango v. Union of India & Ors.
In a public interest litigation filed seeking directions to the state government for regularization and relocation of temples constructed on poramboke lands and water bodies, Madras High Court has asked the petitioner to file a detailed affidavit on how the current demolition drive for removal of encroachments have been religiously discriminatory.
The first bench of Acting Chief Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy was hearing a PIL filed by T. Elango, one of the spokespersons for Hindu Munnani in Tamil Nadu. The petitioner submitted before the bench that the ongoing temple demolition drive by the State Government was motivated and not based on any transparent policy. The petitioner also sought a stay on the demolition drive by the state.
Case Title: Selvan R v. State of Tamil Nadu & Ors.
In a public interest litigation filed by a school teacher alleging caste based discrimination in Pudhupatti hamlet of Pudhukottai District, Madurai Bench of Madras High Court has issued notice to the respondents including the state government and the Director-General of Police, returnable in four weeks.
The petitioner, R Selvan who belongs to the Periyar Ambedkar Makkal Kazhagam, has submitted that the caste discrimination in the hamlet goes to the extent of denying the Scheduled Castes Parayar Community from getting a haircut in the barber shops within the hamlet.
Case Title: Safai Karamchari Andolan v. Union Of India & Ors.
In a writ petition filed by NGO Safai Karamchari Andolan for the eradication of manual scavenging from Tamil Nadu, Madras High Court has asked the state government to file a reply to the specific allegations made about urban local bodies in a 2021 writ miscellaneous petition.
The Special Government Pleader has been granted four weeks time to file the reply.
The first bench of Acting Chief Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy has observed that they will be taking up the issues in the prayer of the petitioner one by one and issuing directions. The court acknowledged that the tenders must be terminated and urban local bodies employing manual scavengers through contractors has to be done away with. When the counsel was faced with the question of whether he is aware of any municipal corporations still employing manual scavengers through contractors, the counsel replied that he wasn't sure.
Case Title: M. Saravanan v. State of Tamil Nadu & Ors, Indic Collective Trust & Anr v. State of Tamil Nadu & Anr & Connected Matters
In a batch of writ petitions regarding the melting of temple jewellery into gold bars under Gold Monetisation Scheme, the Madras High Court has granted three weeks time to the state to file its counter-affidavits.
The first bench of Acting Chief Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy has also allowed one of the petitioners to file a rejoinder affidavit.
In October last year, Madras High Court passed an interim order asking the Tamil Nadu government to refrain from taking any decision on melting temple jewellery into gold bars, as part of the recently announced Gold Monetisation Scheme, until Trustees are appointed to Hindu temples in the State.
Justice G.R Swaminathan of Madras High Court has expressed his resolve to dispose off 445 second appeals pending since the year 2010 within 58 days.
In a letter addressed to the members of the Bar, the judge, who will be handling the second appeals for the time span of 2010-2014, has made it clear that adjournments won't be granted to ensure expeditious disposal of pending cases.
He has made the proposition to clear all the pending appeals within the end of April, 2022 and urged the bar members to extend their full cooperation.
Punjab and Haryana High Court
Case title - Neha v. State of Haryana & another
Case citation: 2022 LiveLaw (PH) 21
In a significant ruling, the Punjab and Haryana High Court has observed that the right of a convict to have conjugal relations is not an absolute one and is subject to 'reasonable restrictions', 'social order', 'security concerns', 'good behavior' in the jail, etc.
Significantly, the Bench of Justice Augustine George Masih and Justice Jasjit Singh Bedi expressed its agreement with Madras High Court's recent ruling wherein it was ruled that the right of a convict to have conjugal relations is not an absolute right and what is available to a convict is his right to obtain infertility treatment.
Rajasthan High Court
Case Title: New India Assurance Company Ltd., through Regional Manager v. Smt. Kanchan Devi
Reversing the findings of a Motor Accident Tribunal which had fixed 50% contributory negligence on the truck driver against which the claimants' car had dashed, the Rajasthan High Court has directed the car insurance company to reimburse the payments made by insurer of the truck.
The bench thus ordered,
"Accordingly, the impugned judgment is set aside to the extent that the Tribunal has fixed the liability to pay compensation on respondent Nos.2 and 3 i.e. owner and insurer of the truck. In fact, the liability was against the owner and insurer of car during use whereof the accident took place...Accordingly, the same is set aside and it is ordered that the entire liability to pay compensation goes against the owner and insurer of the car. Since the car was insured with respondent No.12 it is liable to pay entire compensation payable to the claimants...It has been informed that the appellant (truck insurer) has already paid Rs.5,10,500/- to the claimant. Therefore, the appellant would be entitled to be reimbursed by respondent No.12."
Case Title: Rajasthan High Court Bar Association Versus State Of Rajasthan & Ors.
Citation: 2022 LiveLaw (Raj) 56
The Rajasthan High Court restrained state from issuance of registration certificate to Rajasthan High Court Senior Lawyers Association, Jaipur till further orders. The plea was filed by Rajasthan High Court Bar Association, Jaipur through its General Secretary Adv. Girraj Prasad Sharma.
Case Title: Bhanwar Singh v. State of Rajasthan and Ors., with connected matters
Citation: 2022 LiveLaw (Raj) 57
The Rajasthan High Court has held that the government has authority in terms of Section 90B of the Land Revenue Act, 1956 as it stood at the relevant time and Section 90-A as it stands today to regularise unauthorised conversions of agricultural lands.
"Insofar as the Government's desire to regularise the existing land uses, the same falls into broad categories, (a) where agricultural land is put to non-agricultural use without permission and (b) where such lands as aforesaid or other lands of nonagricultural character which have been put to uses other than land use specified in the development plans. So far as clause (a) category of uses are concerned, per se we find no illegality in the approach of the Government. The Government has the authority in terms of Section 90B of the Act of 1956 as it stood at the relevant time and Section 90-A as it stands today to regularise such unauthorised land conversions."
Case Title: Asharam @ Ashumal v. State
Citation: 2022 LiveLaw (Raj) 58
The Rajasthan High Court recently issued an order to summon Additional Commissioner of Police, Jaipur, Rajasthan, Ajay Pal Lamba for recording his evidence as a court witness in connection with Asaram's appeal challenging his conviction by lower Court in a minor's rape case.
The Bench of Justice Sandeep Mehta and Justice Vinod Kumar Bharwani issued the order while allowing an application filed by Asaram under Section 391 CrPC [Appellate Court's power to take further evidence or direct it to be taken] to summon Senior IPS Officer Lamba as a court witness and to record his evidence, based on certain excerpts of the book co-authored by Lamba.
Other Important Updates
Case Title: Vichitr & Anr v. Registrar Examination, Rajasthan High Court, Jaipur
The division bench of Rajasthan High Court, Jaipur issued notice in a writ petition challenging the answer key of Civil Judge Cadre of Rajasthan Judicial Services (Preliminary Examination), which was conducted on 28.11.2021 and the final result for the same was declared on 11.01.2022.
Justice Manindra Mohan Shrivastava and Justice Birendra Kumar, ruled,
"Issue notice of writ petitions as well as stay applications to respondents by registered post as well as usual mode on payment of PF and notices on or before 31.01.2022. Notices are made returnable within two weeks. List these matters on 16.02.2022 for further orders on reply, admission as well as on stay. A copy of this order shall go along with the notices. A copy of this order be also placed on records of all the petitions."
The petitioner alleged that she was awarded 50 marks, yet she has not been selected for main examination by subjecting her to discrimination. She alleged that for the first time different criteria of cut off marks has been provided for various categories/subcategories and though reduced cut off marks have been provided to General Widow as 45, no such reduced cut off marks have been provided for Scheduled Tribe Widow
Case Title: Rajasthan High Court Bar Association Versus State Of Rajasthan & Ors.
The Rajasthan High Court restrains state from issuance of registration certificate to Rajasthan High Court Senior Lawyers Association, Jaipur till further orders. The plea was filed by Rajasthan High Court Bar Association, Jaipur through its General Secretary Adv. Girraj Prasad Sharma.
Justice Mahendra Kumar Goyal, ruled , "Taking into consideration the contentions advanced by learned Senior Counsel and the material on record, the respondents No.1 & 2 are restrained from issuing registration certificate in favour of the respondent No.3 & 4, till further orders."
The court issued notice in this plea challenging the registration of 'Rajasthan High Court Senior Lawyers Association, Jaipur' in the name of society as it being violative of Section 3 read with Clause 17 of the Schedule of The Emblems and Names (Prevention of Improper Use) Act, 1950.
Case Title: Madhu Kumari Nagar and Ors. v. The State Of Rajasthan and Ors.
A public interest litigation has been filed before the Rajasthan High Court, Jaipur seeking to cancel the Rajasthan Eligibility Examination for Teacher 2021 (REET-2021) and to investigate the paper leak by the Central Investigation Agency. The REET examination was conducted on 26.09.2021. In the present matter, the bench has listed the matter on 28.02.2022.
Justice Mahendar Kumar Goyal, ordered, "The applications (1/2022) shall be considered at the time of admission/hearing of the writ petitions. List these matters for admission on 28.02.2022 as prayed."
Telangana High Court
Cause Title: D. JANARDHAN REDDY v. K. MURALI and ANR
Citation: 2022 LiveLaw (Tel) 9
The Telangana High Court recently ruled that in case of violation of insurance policy conditions, the insurer is still liable to pay the compensation to the claimant and it may recover the same from the owner of the offending vehicle later. It relied upon the principle of "pay and recover" as laid down by the Apex Court in Manuara Khatun v. Rajesh Kr. Singh, 2017.
Case: Janapally Anjilaiah v. The State of A.P.
Citation: 2022 LiveLaw (Tel) 10
The Telangana High Court has reiterated that circumstantial evidence is a weak form of evidence and the conviction of an accused cannot be solely based on circumstantial evidence unless the chain of evidence leaves no other conclusion except accused's guilt.
It further held that to decide whether the chain of evidence pertaining to circumstantial evidence is complete, every hypothesis but the one supposed to be proved must be excluded
Case title: Syed Inayathullah vs The State Of Telangana
Case Citation: 2022 LiveLaw (Tel) 11
The Telangana High Court has observed that after issuance of notice under Section 41-A Cr.P.C., if the police feel that the accused has to be arrested, then, without obtaining permission from the Magistrate concerned, they cannot arrest the accused.
The Bench of Justice Lalitha Kanneganti observed thus while dealing with an anticipatory bail plea filed by the application in a case registered for the offences punishable under Sections 406, 420 read with Section 34 IPC.
Uttarakhand High Court
Case: Dr. Mirtunjay Kumar v. State of Uttarakhand & Anr.
Citation: 2022 LiveLaw (Utt) 6
The Uttarakhand High Court has reiterated that inherent jurisdiction under Section 482 must not be exercised arbitrarily or capriciously but only in appropriate cases, to do real, substantial justice. It further held that the High Court does not act as a Court of Appeal or Revision, while exercising jurisdiction under this Section and thus, quashing of charge sheet or dismissing cognizance order using Section 482 is not justified.