Madras High Court Weekly Round-Up: August 1 To August 7, 2022

Citations: 2022 LiveLaw (Mad) 326 To 2022 LiveLaw (Mad) 338

NOMINAL INDEX

S.Bhanupriya v. The State and others, 2022 LiveLaw (Mad) 326

P.Arumugam v. The Deputy Inspector General of Police and another, 2022 LiveLaw (Mad) 327

P.Ranganathan and another v. The State of Tamil Nadu and others, 2022 LiveLaw (Mad) 328

Vasmi Sudarshini v. The Sub Registrar, 2022 LiveLaw (Mad) 329

P.Ganesan v. M.Revathy Prema Rubarani, 2022 LiveLaw (Mad) 330

S.Pongulali v. The State of Tamil Nadu and others, 2022 LiveLaw (Mad) 331

Subburaj and another v. State and another , 2022 LiveLaw (Mad) 332

Jayalakshmi v. The Managing Director (TASMAC) and others, 2022 LiveLaw (Mad) 333

The District Collector v. Mr R Vetri and others, 2022 LiveLaw (Mad) 334

Dr. Lakshmi v. State, 2022 LiveLaw (Mad) 335

KL Prabakar v. The State and another, 2022 LiveLaw (Mad) 336

Azhagan @ Prabhu v. State, 2022 LiveLaw (Mad) 337

White Cliffs Hair Studio Private Ltd. Versus Additional Commissioner, 2022 LiveLaw (Mad) 338

ARTICLE

1. Hospital's Delay To Shift Patient To Another Hospital For Proper Treatment Amounts To Negligence: Madras HC Awards ₹5 Lakh Compensation

Case Title: S.Bhanupriya v. The State and others

Citation: 2022 LiveLaw (Mad) 326

The Madras High Court bench of Justice Anand Venkatesh has ordered lump sum compensation of Rs. 5 lakhs to a young mother who was forced to undergo three surgeries due to delay on part of a government hospital to shift her to a better facility, consequently kept away from her newborn baby for nine months.

Since the hospital was a government hospital, the State was vicariously liable to compensate the petitioner. Thus, the court directed the state to pay the compensation to the petitioner.

2. Police Officials Making False Statements Before Criminal Court To Protect Fellow Officer Amounts To "Misconduct": Madras High Court

Case Title: P.Arumugam v. The Deputy Inspector General of Police and another

Citation: 2022 LiveLaw (Mad) 327

While upholding the disciplinary action against an erring police official, the Madras High Court heavily criticized the manner in which his fellow officials had given false statements before the trial court in the connected criminal case.

Justice SM Subramaniam remarked that police officials making false or incorrect statements before the criminal courts could be construed as "misconduct" under the Government Service Conduct Rules.

3. Buddha Sculpture Found In Temple : Madras High Court Directs Take Over By Archeological Dept, Halts Poojas

Case Title: P.Ranganathan and another v. The State of Tamil Nadu and others

Citation: 2022 LiveLaw (Mad) 328

The Madras High Court recently directed the Archaeological Department to take control of the property of Thalaivetti Muniyappan Temple at Kottai Road, Periyeri Village, Salem District after the Archaeological department confirmed that the idol inside the temple depicted the mahalakshanas of Lord Buddha.

The court also prevented any further pooja from being conducted in the temple. Justice Anand Venkatesh observed that allowing Hindu Religious and Charitable Endowment (HR&CE) department to continue treating the sculpture as that of Thalaivetti Muniappan would be against the tenets of Buddhism.

4. 'Right To Marry Is A Fundamental Human Right': Madras HC Allows Couple To Solemnize Marriage Virtually

Case Title: Vasmi Sudarshini v. The Sub Registrar

Citation: 2022 LiveLaw (Mad) 329

Coming to the aid of a young couple, the Madras High Court allowed solemnisation of marriage through virtual mode with the groom in USA and bride in India. The court also allowed the bride's plea for getting marriage certificate by observing that she could affix signature in the certificate for both herself and the groom as she had a power of attorney to that effect.

Justice GR Swaminathan of the Madurai bench observed that Section 12 of the Special Marriage Act 1954, gives liberty to the parties to adopt any form of solemnisation of marriage provided that it must be recognised and reasonable and not against public policy.

5. Proceedings Under Domestic Violence Act Civil In Nature, Can Be Transferred To Family Court With Victim's Consent: Madras High Court

Case Title: P.Ganesan v. M.Revathy Prema Rubarani

Citation: 2022 LiveLaw (Mad) 330

The Madras High Court has held that proceedings under the Protection of Women from Domestic Violence Act, though before a Magistrate, are civil in nature. It observed that the intention of the legislature in enacting the Domestic Violence Act was to ensure civil law remedies to the victims of domestic abuse by adopting criminal procedure.

The court also held that since the legislature had clear intentions while granting special powers to the Magistrate under the Act, the same could not be diluted by transferring the domestic violence proceedings to a civil court or a family court, without the victim's consent.

The bench of Justice M Duraiswamy and Justice Sunder Mohan was answering a reference made by two single judge benches of Justice R Subramanian and Justice K Murali Shankar.

6. [Custodial Death] Madras High Court Directs CB-CID To Charge Erring Police Officials For Murder, Awards ₹5 Lakh Interim Compensation To Family

Case Title: S.Pongulali v. The State of Tamil Nadu and others

Citation: 2022 LiveLaw (Mad) 331

The Madras High Court recently allowed a mother's plea to register a case for the offence of Murder against the police officials allegedly involved in the custodial death of her 22 year old son. It directed the CB-CID to alter the charge against the accused police officials and proceed against them for the offence of murder and file the final report within a period of eight weeks.

Justice GK Ilanthiraiyan observed that the Police has a responsibility to ensure that a citizen in its custody is not deprived of his right to life, except according to procedure established by law.

7. [Matrimonial Dispute] Entire Family Cannot Be Implicated Based On Omnibus Allegations: Madras High Court

Case Title: Subburaj and another v. State and another

Citation: 2022 LiveLaw (Mad) 332

Criticising the trend of implicating family members in matrimonial cases, the Madras High Court bench of Justice N Satish Kumar observed that in such cases, mere omnibus allegation against the family members could not be the basis for initiating criminal proceedings.

The court also opined that though under Section 482 CrPC, it cannot assume the role of a trial court. However, if it is satisfied that the prosecution has been maliciously instituted, it could go into the materials and find out whether there are materials, which requires a trial.

8. Distance Rule Not Criteria For Permitting TASMAC Shop To Run Near Educational Institution: Madras High Court

Case Title: Jayalakshmi v. The Managing Director (TASMAC) and others

Citation: 2022 LiveLaw (Mad) 333

The Madras High Court recently upheld the decision to close a TASMAC shop after considering that the proposed area had a College, a De-addiction Centre, and temples in the vicinity.

Justice Nirmal Kumar agreed with an earlier order with respect to the same premises which held that the distance rule cannot be the only criteria for allowing a TASMAC shop to function near a college.

9. Illegality Can't Perpetuate On Mere Technicality, Writ Jurisdiction Can Be Exercised To Nullify Decree Obtained By Fraud On Civil Court: Madras HC

Case Title: The District Collector v. Mr R Vetri and others

Citation: 2022 LiveLaw (Mad) 334

The Madras High Court recently set aside an order passed by the civil court declaring title in favour of private respondents qua a government land, after observing that the order was obtained by committing fraud on the court.

Justice Anand Venkatesh held that while exercising jurisdiction under Article 226 of the Constitution, the High Court can nullify the judgment and decree passed by a competent Civil court if it has been obtained by playing fraud on the Court and such a decree is a nullity and non-est in the eye of law.

10. Passenger May Be Prosecuted For Motor Accident Caused By Drunk Driver: Madras High Court

Case Title: Dr. Lakshmi v. State

Citation: 2022 LiveLaw (Mad) 335

The Madras High Court recently held that a co-passenger in a vehicle involved in motor accident caused by an inebriated driver can be prosecuted for instigation and culpable homicide not amounting to murder under Section 304 (ii) of IPC.

Justice Bharatha Chakravarthy held that the co-passengers could not escape liability by merely claiming that they were merely sitting in the passenger seat and were not behind the wheels.

The court noted that the petitioner had committed a "positive act" in opening the door and sitting in the front seat of the car and thus participating in the journey. Whether this positive act would amount to instigating the driver to drive in an inebriated state would depend on the facts of each case. In the present case, the parties were going on a night stroll which would amount to instigation.

11. Madras HC Quashes Advocate's "Motivated" Land Grabbing Complaint, Says Magistrate's Power U/S 156(3) CrPC Must Be Exercised Vigilantly

Case Title: KL Prabakar v. The State and another

Citation: 2022 LiveLaw (Mad) 336

The Madras High Court recently emphasized that directions under Section 156(3) of the Code of Criminal Procedure should not be issued by Magistrates without the application of judicial mind.

Justice N Sathish Kumar also observed that before ordering an investigation of an offence by the police, the Magistrate can, in appropriate cases, verify the truth and veracity of the allegations made. The Magistrate should also ensure that remedies under Section 154(1) and 154(3) of CrPC have been availed. Further, an application under Section 156(3) of CrPC must contain the details of all these applications made before appropriate authorities.

12. Evidence Of The Victim Can Be Taken To Prove Her Age In Absence Of Necessary Documents: Madras High Court

Case Title: Azhagan @ Prabhu v. State

Citation: 2022 LiveLaw (Mad) 337

The Madras High Court recently modified a judgment of conviction under the Protection of Children from Sexual Offences (POCSO) Act to one under the IPC after observing that the prosecution had failed to establish the age of the victim at the time of the offence.

Justice Bharatha Chakravarthy opined that when the prosecution had not produced the Transfer certificate of the victim and when the victim had categorically deposed before the court that her date of birth was 27.07.1995 not making her a minor at the time of the offence, her evidence should be taken as her correct age and therefore altered the charges.

13. Service Of Preparation Of Scalp, Fitment And Maintenance Of Wig- Indivisible Contact: Madras High Court

Case Title: White Cliffs Hair Studio Private Ltd. Versus Additional Commissioner

Citation: 2022 LiveLaw (Mad) 338

The Madras High Court has held that the primary activity is the manufacture of the wig, for which the central excise duty is remitted. The fitment of the wig, including the preparation of the scalp and optional maintenance of the wig itself, is incidental to the manufacturing and supply of the wig.

The single bench of Justice Anitha Sumanth has relied on the decision of the Supreme Court in the case of Imagic Creative Pvt. Ltd. Vs. Commissioner of Commercial Taxes. The Supreme Court has specifically noted the difference between a composite contract and an indivisible one. A composite contract is one that would involve components of sale and service, whereas an indivisible contract, also involving components of sale and service, is one where the distinction between the two is very fine and difficult to determine.

OTHER DEVELOPMENTS

1. TN Bar Council Bars Advocate Accused In Theft Case From Practice

The Bar Council of Tamil Nadu and Puducherry recently passed a prohibitory order against a lawyer for his alleged involvement in a case of theft. Based on the complaint by Marappan, the Bar Council of Tamil Nadu and Puducherry has passed the present resolution prohibiting Balasubramani from practicing as an advocate in all Courts, tribunals, and other authorities in India either in his name or in any assumed name till the disposal of Disciplinary proceedings pending against him.

2. Remarks Against Judiciary : Madras High Court Issues Second Contempt Notice Against Savukku Shankar

The Madurai Bench of the Madras High Court has again issued notice to Youtuber/Commentator for his remarks against the Indian Judiciary in a recent Youtube interview where he made the below remark:

"The entire higher judiciary is riddled with corruption"

When the matter came up before the bench of Justice GR Swaminathan and Justice B Pugalendhi today, the court issued notice to Savukku Shankar as to why proceedings for criminal contempt should not be taken against him.

3. Madras High Court Orders Arrests Of Fake Advocate; Directs Publication Of His Photo In Newspapers To Find Out Clients Cheated By Him

The Madras High Court recently ordered enquiry against a fake advocate. The bench of Justice S Vaidyanathan and Justice AD Jagdish Chandra ordered the Commissioner of Police, Chennai City to conduct depute an officer who shall register a case in accordance with the law, arrest the fake advocate, and conduct a thorough investigation.

The court also directed the investigating officer to widely publish the photograph of the man, both in Tamil and English dailies circulating in the State of Tamil Nadu to find out if any persons have been deceived by him. The Bar Association of Tamil Nadu and Puducherry was also directed to conduct enquiry regarding any pending complaint against the advocate.