LEGAL NEWS
In the case of Ravindra Shitalrao Upadyay v. State of Maharashtra, the Bombay High Court recently said that the definition of ‘prohibited place’ in the Official Secrets Act, 1923 is exhaustive but police station has not been included as one of the establishments or places under it.
The court made the observation while quashing an FIR in July this year against a man, who was booked under Section 3 of the Act for recording a video inside a police station in 2018. Justice Manish Pitale and Justice Valmiki Menezes of the Nagpur bench were dealing with an application for quashing of the FIR that was registered on the complaint of a police officer. According to the FIR, there was a dispute between the applicant and the owner of the adjacent agriculture field. The rival parties had registered complaints against each other. When the rival parties were present in the police station and an attempt was being made to settle the disputes, the accused allegedly made a video recording of these proceedings.
The court referred to Section 3 of the Official Secrets Act which provides penalty for spying. According to section 3(1)(a) of the Act, if any person for any purpose prejudicial to the safety or interests of the State approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place, he shall be punished with imprisonment.
‘Prohibited place’ is defined in Section 2(8) of the Act. The court observed that “It is an exhaustive definition, which does not specifically include Police Station as one of the places or establishments, which could be included in the definition ‘prohibited place’.”
The court also referred to case of Satvik Vinod Bangre and others v. State of Maharashtra and another in which video recording was made in police station in context of more serious offences. However, the Bombay High Court had found that there was no material to invoke sections 3 and 4 of the Act.
The bench concluded that none of the ingredients of the alleged offence are made against the applicant in the present case and quashed the FIR registered against him.
LEGAL NEWS
The Supreme Court in the case of Meera Kaura Patel v. Union of India, will examine the validity of the age restriction of 35 years for conducting pre-conception and pre-natal diagnostic tests.
The court issued notice in a petition filed in 2019 by a lawyer Meera Kaura Patel who contended that the age restriction of 35 years in Section 4(3)(i) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 is a restriction on the reproductive rights of women. The Act prohibits pre-natal sex selection. The law was made to curb the evil of female foeticide.
The petitioner referred to the recent judgment of the Supreme Court in X vs. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi, in which it was upheld that the rights of women to make reproductive choices- to contend that the provision would not stand judicial scrutiny.
The bench of Justices Sanjay Kishan Kaul and Abhay S. Oka issued notice restricted to the aforesaid aspect.
LEGAL NEWS
The Supreme Court in the case of M.S.P.L. Limited v. State of Karnataka observed that the Courts should refrain from expressing value judgments and policy views in order to interpret statutes. Statutes are to be read in their plain language and not otherwise, the bench of Justices Hemant Gupta and Vikram Nath observed.
In this case, the land acquisition by KIADB was for two companies viz. M/s MSPL Ltd. and M/s AARESS Iron and Steel Ltd. [AISL is fully owned subsidiary of MSPL]. Allowing writ appeal filed by a land owner, the Karnataka High Court (Division Bench) quashed the notifications under Sections 3(1), 1(3) and 28(1) of the Karnataka Industrial Areas Development Act, 1966. The Apex Court set aside the High Court judgment.
While considering the appeals, the Apex Court bench noted the following observations made in the judgment of the High court:
The bench said that the above ‘value judgments and policy views’ were introduced by the High Court in order to interpret the provisions of the Karnataka Industrial Areas Development Act, 1966 Act and the Karnataka Industries (Facilitation) Act, 2002. In this regard, the court observed that “The Division Bench in the impugned judgment seems to have been swayed by its own philosophy in due deference to the principles of statutory interpretation. The statute is to be read in its plain language.” It further observed that “It is only as a measure of caution that the said aspect is being taken note of. Such value judgments and policy views are beyond the domain of the Courts. The Courts should refrain itself from expressing value judgments and policy views in order to interpret statutes. Statutes are to be read in their plain language and not otherwise.”
The court also added that setting up of industries is part of development. “There has to be a sustainable growth and existence of all facets and, that is why, laws have been framed, cheques and balance have been imposed so that development takes place side by side with the protection and preservation of nature and environment”, it said.
LEGAL NEWS
The Supreme Court in the case of Yogesh Jain v. Sumesh Chadha has observed that the question whether the cheque in question had been issued for a time-barred debt or not cannot be decided in a petition under Section 482 of the Code of Criminal Procedure. It was observed by the bench of Justices S. Abdul Nazeer and J B Pardiwala that this question is a matter of evidence.
In this case, the Punjab and Haryana High Court quashed a complaint under Section 138 of the Negotiable Instrument Acts on the ground that on the date of summoning the accused the legally enforceable debt was time barred. The High Court observed that there is no averment in the entire complaint as regards any kind of acknowledgment of the said debt by the accused within the period of three years i.e., within the limitation period of recovering the debt.
In appeal, the Apex Court bench noted the loan was advanced sometime in the year 2011 and the cheque in question issued by the accused for the discharge of the debt is dated 01.11.2018 and complaint for the offence under Section 138 of the N.I. Act was lodged on 14.01.2019. The bench observed that “It appears that the High Court has gone by the date of the loan transaction to be precise the year of the loan transaction. If a cheque is issued on 01.11.2018 for the discharge of the debt incurred in the year 2011 then prima facie it could be said to be an acknowledgement of the debt. This aspect needs to be re-considered by the High Court in its true perspective.”
The court also disagreed with the view that the acknowledgement of the debt at the instance of the accused should have been within three years from the date of transaction and there is no averment in the complaint in this regard. The bench stated that “We fail to understand such a line of reasoning by the High Court. We say so because the loan which was advanced of Rs. Five Lakh by the complainant to the accused was for a period of seven years. Prima facie, it appears that the liability towards repayment of the loan was to be discharged within a period of seven years. If that be so, then on what basis the initial first three years have been taken into consideration by the High Court for the purpose of counting the limitation. Perhaps what is in the mind of the High Court is that by the time, the cheque in question was issued the debt had become barred by limitation because no acknowledgement was obtained before the expiry of three years from the date of loan. However, as noted above, the understanding was to discharge the liability within a period of seven years. Prima facie, we are of the view that the period of limitation would start reckoning from the expiry of the period of seven years.“
The court also noted that the complainant was not heard while disposing of the Section 482 CrPC petition by the High Court. While allowing the appeal by remitting the matter to High Court for fresh consideration, the court further observed that “Once a cheque is issued and upon getting dishonoured a statutory notice is issued, it is for the accused to dislodge the legal presumption available under Sections 118 and 139 reply of the N.I. Act. Whether the cheque in question had been issued for a time barred debt or not, itself prima facie, is a matter of evidence and could not have been adjudicated in an application filed by the accused under Section 482 of the CrPC.”
LEGAL NEWS
The Supreme Court in the case of Subramanya v. State of Karnataka observed that the extra judicial confession of a co-accused could not be relied on as substantive evidence. The bench of CJI UU Lalit and Justice JB Pardiwala observed that the confession of a co accused could be used only in support of the evidence and could not be made a foundation of a conviction.
The bench observed thus while allowing the appeal filed by a murder convict. In this case, the murder accused was acquitted by the Trial Court, but the Karnataka High Court allowed the appeal filed by the State and convicted the accused. The High Court had relied on an extra judicial confession made by one co-accused to convict the accused.
One of the contentions raised in appeal before the Apex Court was that the High Court committed a serious error in making the extra judicial confession as the basis and thereafter going in search for corroboration. This confession of a co-accused, even if proved, cannot be the basis of a conviction and although it is evidence in the generic sense, yet it is not evidence in the specific sense and it could afford corroboration to other evidence and cannot be the supporting point or the sole basis of the conviction, it was contended.
On the other hand, the State contended that the extra judicial confession alleged to have been made by the co-accused is admissible against the accused.
Referring to Section 30 of the Indian Evidence Act and earlier decisions of the Supreme court, the bench observed that to come to the ratio, we find that the view was affirmed that confession of a co-accused could only be considered but could not be relied on as substantive evidence… The case in hand is not one of a confession recorded under Section 15 of the TADA Act. On the language of subsection (1) of Section 15, a confession of an accused is made admissible evidence as against all those tried jointly with him. So, it is implicit that the same can be considered against all those, tried together. In this view of the matter also, Section 30 of the Evidence Act need not be invoked for consideration of confession of an accused against the co-accused, abettor or conspirator charged and tried in the same case along with the accused. The accepted principle in law is that the confessional statement of an accused recorded under Section 15 of the TADA Act is a substantive piece of evidence against his co-accused, provided the accused concerned are tried together. This is the fine distinction between an extra judicial confession being a corroborative piece of evidence and a confession recorded under Section 15 of the TADA Act being treated as a substantive piece of evidence.
While allowing the appeal and restoring acquittal of the accused, the bench observed that the evidence of discovery of the weapon, clothes and dead body of the deceased at the instance of the accused can hardly be treated as legal evidence.
LEGAL NEWS
The Supreme Court, in a judgment delivered in an appeal against Appellate Tribunal for Electricity (BSES Rajdhani Power Ltd. v. Delhi Electricity Regulatory Commission), explained the test for determining whether a case involves substantial question of law or not. The bench of Justices S. Abdul Nazeer and Krishna Murari said that the appropriate test for determining whether the question of law raised in the case is substantial would be to see whether it directly and substantially affects the rights of the parties.
Section 125 of the Electricity Act, 2003, provides for an appeal to the Supreme Court against the decision or order of the APTEL. In this case, BSES Rajdhani Power Ltd. and BSES Yamuna Power Ltd. had filed appeal. According to the appellants, six issues decided by the APTEL give rise to substantial question of law. The respondent- raised a preliminary objection to this appeal contending that appeals do not involve any substantial question of law as required under Section 125 of the 2003 Act read with Section 100 of the CPC.
The bench noted that the existence of a ‘substantial question of law’ arising from the judgment of the APTEL is sine qua non for exercise of jurisdiction by this Court under Section 125 of the 2003 Act. The court added that an appeal is judicial examination of a decision of a subordinate court by a higher court to rectify any possible error(s) in the order under appeal. The court then referred to observations made in Sir Chunilal V. Mehta & Sons Ltd. v. The Century Spg. & Mfg. Co. Ltd AIR 1962 SC 1314 regarding the test to determine whether a question is a substantial question of law or not. It noted: “Thus, the word ‘substantial’ as qualifying ‘question of law’ means, of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic. For determining whether a case involves substantial question of law, the test is not merely the importance of the question, but its importance to the case itself necessitating the decision of the question. The appropriate test for determining whether the question of law raised in the case is substantial would be to see whether it directly and substantially affects the rights of the parties. If it is established that the decision is contrary to law or the decision has failed to determine some material issue of law or if there is substantial error or defect in the decision of the case on merits, the court can interfere with the conclusion of the lower court or tribunal. The stakes involved in the case are immaterial as long as the impact or effect of the question of law has a bearing on the lis between the parties.
Thus, in a second appeal, the appellant is entitled to point out that the order impugned is bad in law because it is de hors the pleadings, or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against the provision of law or the decision is one which no Judge acting judicially could reasonably have reached. Once the appellate court is satisfied, after hearing the appeal, that the appeal involves a substantial question of law, it has to formulate the question and direct issuance of notice to the respondent/s.
The bench thereafter observed that the appeals involve substantial questions of law and finally allowed the appeals.
LEGAL NEWS
Recently in the case of Md. Jabbar Ali v. State of Assam, the Supreme Court bench of Justices Ajay Rastogi and BV Nagarathna observed that when the witnesses are related/interested, their testimonies have to be scrutinized with greater care and circumspection. This observation was made by the Supreme Court while acquitting the accused in a murder case.
Jabbar Ali and others were convicted by the Trial Court under Section 302 IPC and the Gauhati High Court had dismissed their appeals.
The main contentions of the appellants before the Apex Court were that the prosecution failed to examine any independent witnesses in the present case and that the witnesses were related to each other and that all the witnesses have given contradictory versions as to who gave the fatal blow to deceased.
Reappreciating the evidence on record, the bench noted that the prosecution has examined only related witnesses and not a single independent witness. The court stated that “This Court is conscious of the well-settled principle that just because the witnesses are related/interested/partisan witnesses, their testimonies cannot be disregarded, however, it is also true that when the witnesses are related/interested, their testimonies have to be scrutinized with greater care and circumspection. In the case of Gangadhar Behera and Ors. v. State of Orissa (2002) 8 SCC 381, this Court held that the testimony of such related witnesses should be analysed with caution for its credibility.”
While allowing the appeal, the bench observed that “In the present case, owing to the substantial and material contradictions in the testimonies of the prosecution witnesses, the evidence of the prosecution is considered wholly unreliable. Additionally, the prosecution has examined only related witnesses and not a single independent witness. Therefore, in the facts and circumstances of the case, the evidence does not prove the alleged offences against the accused-appellants.”
LEGAL NEWS
Recently, in the case of Inayath Ali & Anr. v. State of Telengana & Anr., the Supreme Court has set aside a decision of a High Court allowing DNA testing to determine the paternity of two children to verify a claim made by their mother that she had been “forced to cohabit and develop a physical relationship” with her brother-in-law.
This appeal had arisen out of a dowry harassment case in which the complainant had lodged a first information report against her husband and his brother under Sections 498A, 323, and 354 and other ancillary provisions of the Indian Penal Code, 1860.
Allowing the appeal preferred by the accused, the Division Bench has held that the trial court had accepted the application of the complainant “mechanically”. By this order, which eventually came under the scanner of the apex court, the trial court had directed the appellants and the children “to give blood samples to a specified hospital for obtaining an expert opinion on DNA fingerprint test”.
The Supreme Court Bench, comprising Justices Aniruddha Bose and Vikram Nath, held that “Merely because something is permissible under the law cannot be directed as a matter of course to be performed particularly when a direction to that effect would be invasive to the physical autonomy of a person. The consequence thereof would not be confined to the question as to whether such an order would result in testimonial compulsion, but encompasses right to privacy as well. Such direction would violate the privacy right of the persons subjected to such tests and could be prejudicial to the future of the two children who were also sought to be brought within the ambit of the Trial Court’s direction. We, accordingly, allow the appeal and set aside the judgment of the High Court.”
The Supreme Court took a different stand from that of the High Court on the basis of two factors, namely:
LEGAL NEWS
The Bombay High Court in the case of Rahim Manji Kaba v. Moosabhai Gagji Khetani has held that bar under Section 41(1) of the Presidency Small Causes Courts Act, 1882 is not attracted to a dispute regarding declaration of tenancy rights under a partnership deed when the licensor-licensee or landlord/tenant relationship is non-existent. The Bench of Justice B.P. Colabawall held that bar under Section 41 of the Presidency Small Causes Courts Act only applies where the parties have a landlord-tenant or licensor-licensee relationship between themselves.
The applicant/respondent, the claimant, and a third party entered into a partnership deed dated 26.03.1993 to carry on business in the name of M/s Paradise Traders. The claimant was the tenant in the subject premises/Shop. Clause 13 of the Partnership deed provided that the said Shop stands in the name of the Claimant and it shall always belong to him and the other partners of the Partnership Firm shall have no right, title or interest or any claim in the said Shop. A dispute arose between the parties related to the tenancy rights in the subject premises. Therefore, the claimant invoked the arbitration under the partnership deed. The arbitrator passed an award and held that in terms of Clause 13 of the Partnership Deed, the claimant has the exclusive tenancy rights in the subject premises and it does not form a part of the assets of the partnership firm. The applicant did not challenge the arbitral award. Accordingly, it attained finality. The claimant filed for its execution, subsequently, the applicant filed an application thereunder to restrain the claimant from taking out any legal proceedings qua the subject premises.
The Court observed that the issue before the Arbitral Tribunal was whether the said Shop [and which was tenanted] belonged to the Claimant and whether the Applicant could (in his capacity as a partner), claim any right title or interest in the said Shop. The Court held that the objection raised by the applicant is without any merit as for Section 41(1) of the Presidency Small Causes Courts Act to apply there must be a landlord-tenant or licensor-licensee relationship existing. It further stated that it is not even the case of the applicant that there was any landlord-tenant relationship between the parties and the arbitrator adjudicated the same. Therefore, the objection regarding non-arbitrability is wholly misplaced. The Court stated that the arbitrator granted the relief to the claimant on the basis of Clause 13 of the Partnership Deed which expressly recorded the exclusive right of the claimant qua the subject premises. It observed that there was no dispute before the Arbitral Tribunal between a landlord and a tenant which would divest it of its jurisdiction. The Court further rejected the objection of the applicant regarding there being a licensor and gratuitous licensee relationship between the parties. The Court held that the said objection was raised out of sheer desperation and it was not supported by any pleadings. It observed that it was never the case of the applicant that it was a gratuitous licensee of the claimant, the only objection it raised before the arbitral tribunal was regarding Section 41(1) of the Presidency Small Causes Act. The Court held that applicant being the gratuitous licensee of the claimant is a question of fact which is required to be pleaded and thereafter established and any relief would not be granted in absence of the same. Accordingly, it dismissed the interim application as without any merit.
LEGAL NEWS
In the recent case of Firoz Ahmad v. State Consumer Disputes Redressal Commission, Delhi and Ors, the Delhi High Court has observed that the supervisory jurisdiction under Article 227 of the Constitution of India cannot be exercised by High Courts to monitor the progress of cases before lower courts. It was observed by Justice C Hari Shankar that “It is not possible for this Court, exercising jurisdiction under Article 227 of the Constitution of India, to monitor the progress of cases before the fora below.”
The Court was dealing with a petition filed under Article 227 seeking a direction to the State Consumer Disputes Redressal Commission to decide a case expeditiously, preferably on day-to-day basis and adjudicate the appeal on merits.
The court observed that “Supervisory jurisdiction under Article 227 of the Constitution of India can be exercised only in cases where the forum, subject to the superintending jurisdiction of this Court, acts in a manner which calls for supervisory correction.” The Court further opined that the mere fact of pendency of petitioner’s appeal before the SCDRC since 2019 cannot be a ground for High Court to direct the forum to decide it within one month. “This Court is unaware of the number of matters pending before the learned SCDRC or the work constraint under which it is operating.”
The Court thus disposed of the plea merely with the direction to the SCDRC to decide the case preferred by the petitioner, as expeditiously as possible.
LEGAL NEWS
TELANGANA HIGH COURT SAYS THAT IF AGE OF VICTIM GIRL IS SUSPICIOUS & NOT PROVED, BENEFIT OF DOUBT IS EXTENDED TO ACCUSED UNDER POCSO ACT
In a recent case of Guda Mahender v. The State of Telangana, the Telangana High Court ruled that benefit of doubt has to be extended to the accused under the POCSO Act, if the age of the victim girl cannot be proved by prosecution to be below 18 years of age.
In this case, the appellant/accused was convicted for the offence under POCSO Act and Sections 366A, 376(2)(n) and 342 of the Indian Penal Code passed by Special Judge for Trial under POCSO Act. The case of the prosecution was that father of the victim filed a complaint on 20.02.2017 morning hours after she left for school, she did not return and suspected the appellant herein. The victim girl was found and she stated that the accused had taken her by force to a room stating that he would marry her and raped her continuously for 12 days. In her chief examination however, the victim stated that she is acquainted with the appellant and during her stay with him, she used to cook food.
At the outset, the Court observed that as seen from the admissions of victim girl, there was never any force by the appellant in any manner either to accompany him or staying at a room. The admission by victim that they stayed together and she cooked sometimes and used the bathroom outside the house where there were several houses show that she stayed on her own volition without any force. The main reason for convicting the appellant was age of victim as the date of birth of victim according to prosecution was 17.12.2000. As on the date of incident, it was submitted that she was about 17 years and less than 18 years. However, the Court noted that the prosecution did not file any proof to prove her age. In the absence of any certificate issued by the hospital or municipal authorities, the correct age of victim girl could not be inferred, it held. The court held that if the age as projected by prosecution is suspicious and not proved, the conviction on the basis of age of victim cannot be sustained and benefit of doubt has to be extended to the accused herein. Thus, the Criminal Petition was allowed.
LEGAL NEWS
The Bombay High Court in the case of Raman & Manthan v. The State of Maharashtra has held that a child in conflict with law as per the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) can file an application under Section 438 of CrPC, seeking anticipatory bail. A division bench of Justices Sarang Kotwal and Bharat Deshpande observed that, “When a child in conflict with law is apprehended, his liberty is curtailed. Section 438 of the Cr.P.C. affords a valuable right to a person, who is likely to be arrested or in other words, whose liberty is likely to be curtailed. Section 438 of the Cr.P.C. does not make any distinction between different persons.“
Briefly, the background of the case is that a Single Judge had rejected the anticipatory bail plea filed by two siblings, aged 16 and 14, observing that the applicants were covered by the definition of “Child in conflict with law” as defined under the JJ Act and therefore, their application for anticipatory bail under Section 438 of Cr.P.C. was not maintainable. The matter was referred to the division bench in light of different view expressed by other single judges of the court. The division bench noted that judgments, which lay down the ratio that the application under Section 438 of the Cr.P.C. is not maintainable on behalf of child in conflict with law, take a view that Section 12 of the JJ Act is a complete Code in itself. Further, there is no specific provision for anticipatory bail under the JJ Act. In fact, the word “arrest” is not used with reference to a child in conflict with law in the JJ Act. Other judgments, the court stated, which have taken a view that such application is maintainable, have basically relied on the fact that JJ Act is a beneficial legislation and it cannot take away the right which is available to a child.
Taking this into account, the court opined that a plain reading of Article 14 of the Constitution of India, would show that any protection, which is available to any person under the law, is available also to a child as defined under the JJ Act. The provisions of Section 438 of the Cr.P.C. afford the earliest protection during or even before investigation and therefore, even a child in conflict with law has a right to use this remedy.
Assistant Public Prosecutor AV Deshmukh argued that though Article 14 provides for equality before law, in case of the JJ Act, there is a purposeful differentiation made for protection of children and therefore, reasonable classification was permissible. He stated that the JJ Act flows from Sub-Article (3) of Article 15 of the Constitution of India and was for the benefit of children. The JJ Act, as per the APP, treats them as victims and not as offenders and therefore, separate special procedure is provided. He further submitted that JJ Act has overriding effect over all other Acts including the Cr.P.C. According to APP, the word “arrest” was not used in Sections 10 and 12 or for that matter in any other provision relating to a child under the JJ Act and therefore, Section 438 of the Cr.P.C. was not applicable to a child in conflict with law under the JJ Act.
In this connection, the Court noted that Section 3 (viii) of the JJ Act provides that adversarial or accusatory words are not to be used in the processes pertaining to a child. Keeping in mind the spirit of this principle, the word “arrest” is not used in connection with a child. The Cr.P.C., in fact, uses the words “arrest” and “apprehension” interchangeably. “The definition of the word “person” mentioned in Section 11 of the IPC, is an inclusive definition. It does not exclude a child. Section 438 of the Cr.P.C. does not exclude a child from the word “person”. Therefore, there is no reason to deny the benefit of the provisions of Section 438 of the Cr.P.C. to a child, who is likely to be apprehended,” the Court said. The court rejected the argument that the JJ Act does not make provision in the nature of Section 438 of the Cr.P.C. and that Sections 10 and 12 of the JJ Act are complete Code in themselves. It stated that Sections 10 and 12 operate “after” a child alleged to be in conflict with law is apprehended. Thus, they refer to “post” apprehension stage. They do not refer to “pre” apprehension stage. Therefore, they cannot be in conflict with the provisions of Section 438 of the Cr.P.C. Finally, the court stated that if the JJ Act was to provide for procedure in the nature of Section 438 of the Cr.P.C., that procedure would have overridden the Cr.P.C. But if no special form of procedure is prescribed in the nature of Section 438 of the Cr.P.C., then the provisions of the Cr.P.C. shall operate.
LEGAL NEWS
In the case of Sarvinder Singh & Anr. v. Vipul Tandon, the Delhi High Court has held that with respect to a decree for the possession of immovable property, if the Decree Holders are aware of the sale in favour of the Objectors, they must implead the Objectors in the suit filed by them.
It was observed by a single judge bench of Justice Amit Bansal that, “The manner in which the Decree Holders took possession of the properties from the Objectors was ex facie unlawful. The Decree Holders were aware of the sale in favour of the Objectors and also the possession of the Objectors in the aforesaid portions of the suit property. Despite this knowledge, the Decree Holders did not implead the Objectors in the suit filed by them. Even after the decree was passed, no legal notice was served on the Objectors to vacate the property, nor were they made parties in the execution proceedings and straightaway they were dispossessed from the portions of the suit property, of which they had been in a settled occupation for a long period of time.“
In this case, the Objector herein had purchased two floors of the suit property from the Decree Holder’s mother. Thereafter, the Judgment Debtor got the letters of administration in his favour in respect of the will of the mother of the Decree Holders and later a Sale Deed was executed by the Judgment Debtor in favour of the Objector, in respect of the terrace of the suit property. It is averred that the Objector took reasonable care to ascertain that the Judgement Debtor had power to make the transfer. However, in 2016, a suit for possession of the suit property was decreed in favour of the Decree Holder. The grievance of the Objector is that despite being aware of the sale in favour of the Objectors and their possession, the Decree Holder failed to disclose to the Court that three portions of the property had already been sold by the Judgment Debtor. “Despite knowledge of the possession of the Objector, the Decree Holders neither impleaded the Objector.” As a consequence, the Objector along with his parents was dispossessed. Following this, four Execution Applications were filed by the Objector: First one was under Order XXI Rules 99, 101 and 106 of the CPC, seeking relief of status quo ante; Second one was under Section 144 of CPC seeking payment of mesne profits and damages for wrongful dispossession; Third one was for restraining the Decree Holders from creating third party rights in the suit property; Finally, the fourth one sought restoration of possession of suit property. The Objector submitted that he is the bona fide purchaser of the suit property under the Agreement to Sell and had built further on the second and third floor to the knowledge of the Decree Holders. The Decree Holder argued that there is no privity of contract between the Decree Holders and the Objectors and if the Objectors have any grievance at all, the same has to be only against the Judgment Debtor.
In order to reach a conclusion, the Court first analysed the relevant provisions of the CPC, that is, Order XXI Rules 97, 98, 99, 100, 101, 102. The court held that the Decree Holders ought to have filed an application under Order XXI Rule 97 of the CPC, so as to be put back in possession of the portions of the suit property in occupation of the Objectors. The court opined that “It is a matter of record that the Objectors have been in a settled possession of the aforesaid properties on the basis of registered Sale Deeds executed as far back in 1999 and 2002. The Decree Holders could not have unilaterally dispossessed the aforesaid Objectors, while seeking to execute the decree dated 3rd May, 2016 passed by this Court in a suit, where the Objectors were deliberately not made parties despite the Decree Holders/plaintiffs being aware of their possession of the aforesaid portions of the suit property. Even after the decree was passed, no legal notice was served on the Objectors to vacate the property, nor were they made parties in the execution proceedings and straightaway they were dispossessed from the portions of the suit property, of which they had been in a settled occupation for a long period of time.” Additionally, after having a look at the affidavit, the court held that the decree in question did not even mention the third floor of the suit property and yet in execution proceedings, the Decree Holders proceeded to take possession of the third floor of the suit property in an unlawful and mala fide manner. The court held that the conduct of the Decree Holders in dispossessing the Objectors without following the due process of law was unlawful as well as mala fide. The court also held that through the letters of administration granted in favour of the Judgment Debtor, the Objectors purchased the portions of the suit property, on the basis of registered Sale Deeds. It was only in the year 2005, much after the Sale Deeds were executed, that the Decree Holders took steps for revocation of the grant of letters of administration, in which they eventually succeeded. But, in light of the observations in Crystal Developers vs Smt. Asha Lata Ghosh, the court stated that the bona fide intermediate acts of the administrator for the purpose of administration of the estate have to be protected. It opined that “Merely because the letters of administration granted in favour of the administrator were set aside at a later point of time, would not undo or invalidate intermediate acts performed by the administrator, while the letters of administration granted in his favour duly existed, unless the same are shown to be fraudulent or collusive.” The court noted that the fact that the Decree Holders were well aware about the possession of the third parties in the suit property but they deliberately did not implead any of such Objectors in the said proceedings, nor did they challenge the Sale Deeds executed in favour of such Objectors was wrong. Counsel for the Decree Holders placed reliance on Order XXI Rule 102 of the CPC to contend that nothing contained in Order XXI Rules 98 and 100 of the CPC would apply to an Objector to whom the Judgment Debtor has transferred the property after the institution of the suit in which the decree was passed. The court stated that the aforesaid provision recognises the doctrine of lis pendens enshrined in Section 52 of the Transfer of Property Act. Therefore, if a person purchases the property, which is a subject matter of a suit after the institution of the suit, doctrine of lis pendens would apply and the said purchaser cannot approach the Court under Order XXI Rules 98 and Rules 100 of the CPC. Here, the court held that of course, the Decree Holders succeeded in the appeal filed by them and ultimately the letters of administration granted in favour of the Judgement Debtor were revoked. However, there was no lis pending when the Sale Deeds were executed in favour of the Objectors. Therefore, the doctrine of lis pendens had no application in the facts and circumstances of the present case. In light of the aforesaid discussion, the court held that the manner in which the Decree Holders took possession of the properties from the Objectors was ex facie unlawful. Therefore, the court held that the Objectors had made out a case for grant of status quo ante and are entitled to the restoration of possession of the aforesaid portions of the suit. Accordingly, it was directed that the possession of the aforesaid portions of the suit property, that was taken by the Decree Holders pursuant to warrants of possession issued by the Court be restored to the Objectors, within a period of four weeks from today.
LEGAL NEWS
In the case of Neha Saini and Anr. v. Raghubir Singh and Anr., the Delhi High Court has held that “An application under Order XII rule 6 cannot be disposed of in such a laconic fashion. There has to be some modicum of reasoning in the order, meeting the grounds in the application.”
In this case, Justice C Hari Shankar was dealing with a plea challenging the order dated 23rd March 2022, passed by the Trial Court in a civil suit, on an application of the petitioners under Order XII Rule 6 of the Code of Civil Procedure, 1908.
The petitioners claimed to be the daughter and son of one Narender Singh, the pre-deceased son of Surender Kaur, who expired on 3rd November 2012, and, therefore, claimed to be her Class-I legal heirs. On 12th November 2014, Surender Kaur was stated to have died intestate, leaving the petitioners and respondents as her legal heirs. The plaint asserted that the petitioners and respondents became joint owners of the suit property, consequent on the demise of Surender Kaur. The plaint further alleged that Defendant 1 had virtually taken control of all assets and properties of Surender Kaur and was seeking to deprive the petitioners of their shares. On the basis of these and other facts, the suit sought a declaration, in favour of the petitioners, that they were joint owners of the suit property, as well as partition of the suit property, apart from possession and permanent injunction. During the pendency of the suit, the petitioners filed an application under Order XII Rule 6 of the CPC, in which certain assertions made by the respondent had been stated, by the petitioner, to amount to admissions, entitling the petitioner to a decree on the basis thereof under Order XII Rule 6. The application under Order XII Rule 6 of the CPC was disallowed by the impugned order dated 23rd March 2022.
It was observed by the High Court that the impugned order was non- speaking in nature and that the Trial Court had merely rejected the application on the ground that there were no clear and unequivocal admissions on the part of the defendants. “An application under Order XII rule 6 cannot be disposed of in such a laconic fashion. There has to be some modicum of reasoning in the order, meeting the grounds in the application.” The Court further observed that it was imperative on the part of the Trial Court to set out, in the order, the reasons why the assertions which the petitioners regards as admissions were not so.
“I deem it appropriate, therefore, to set aside the impugned order dated 23rd March 2022 and remand the application filed by the petitioners under Order XII Rule 6 to the learned ADJ for a de novo consideration and for a decision thereon on merits,” the Court ordered. The plea was accordingly allowed.
The Supreme Court in the case of Nanda Dulal Pradhan v. Dibakar Pradhan, the bench of Justices MR Shah and BV Nagarathna observed that on setting aside the ex parte decree, the defendants can be permitted to participate in the suit proceedings and cross-examine the witnesses.
In this case, the defendants were set ex parte by the Trial Court. Their application under Order IX Rule 13 was also dismissed by the Trial Court. The First Appellate Court allowed the appeal filed by defendants and set aside the ex-parte judgment and decree observing that on restoration of the suit the same be disposed of after affording opportunities to the parties to adduce their respective evidence and rebuttal evidence. Allowing the petition filed by the plaintiff, the Orissa High Court set aside the order passed by the First Appellate Court solely on the ground that as the defendants did not file the written statement and contested the suit, the reopening of the suit would become futile.
In appeal, the Apex Court bench noted that the order passed by the First Appellate Court was in consonance with the law laid down by this Court in the case of Sangram Singh v. Election Tribunal, AIR 1955 SC 425 and Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993. Referring to these judgments, the court allowed the appeal, and observed that “As observed and held by this Court in the case of Sangram Singh (supra) on setting aside the exparte decree and on restoration of the suit the parties to the suit shall be put to the same position as they were at the time when the exparte judgment and decree was passed and the defendants may not be permitted to file the written statement as no written statement was filed. However, at the same time they can be permitted to participate in the suit proceedings and cross examine the witnesses. In that view of the matter the impugned judgment and order passed by the High Court is unsustainable. Still, on setting aside the exparte judgment and decree, though the defendants who had not filed the written statement, can be permitted to participate in the suit and crossexamine the witnesses. Therefore, the High Court is not right in observing that as no written statement was filed by the defendants, the reopening of the suit by setting aside exparte judgment and decree will become futile. As observed hereinabove the High Court has not at all observed anything on the correctness of the order passed by the First Appellate Court setting aside the exparte judgment and decree on merits.”
The Supreme Court bench comprising Justices Sanjay Kishan Kaul and MM Sundresh in the case of Satender Kumar Antil v. Central Bureau of Investigation, recently observed that any non-compliance of Section 41 and 41A of Criminal Procedure Code at the time of arrest would entitle the accused for grant of bail. It observed that Sections 41 and 41A are facets of Article 21 of the Constitution of India. “The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued in Arnesh Kumar judgment.. Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.”
The court also directed the State Governments and the Union Territories to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code.
Come down heavily on officers violating Sections 41, 41A.
“We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41A. We express our hope that the Investigating Agencies would keep in mind the law laid down in Arnesh Kumar (Supra), the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. Our view is also reflected by the interpretation of the specific provision under Section 60A of the Code which warrants the officer concerned to make the arrest strictly in accordance with the Code.”, the bench observed.
The court noted that Delhi Police viz., Standing Order No. 109 of 2020, provides for a set of guidelines in the form of procedure for issuance of notices or orders by the police officers. “Thus, we deem it appropriate to direct all the State Governments and the Union Territories to facilitate standing orders while taking note of the standing order issued by the Delhi Police i.e., Standing Order No. 109 of 2020, to comply with the mandate of Section 41A. We do feel that this would certainly take care of not only the unwarranted arrests, but also the clogging of bail applications before various Courts as they may not even be required for the offences up to seven years”
The Court also issued a slew of other directions as follows:
Recently, in the case of State of Madhya Pradesh through Principal Secretary & Ors. v. Seema Sharma, it was held by the Supreme Court that an employee can’t claim parity of pay scale with another due to mere similarity of designation or similarity or quantum of work. The court observed that “The doctrine of equal pay for equal work could only be invoked when the employees were similarly circumstanced in every way. Mere similarity of designation or similarity or quantum of work was not determinative of equality in the matter of pay scales. The Court had to consider all the relevant factors such as the mode of recruitment, qualifications for the post, the nature of work, the value of work, responsibilities involved and various other factors.”
The Court observed that fixation of pay scales is a matter of policy that can be interfered by the courts only in exceptional cases where there is discrimination between two sets of employees appointed by the same authority, in the same manner, where the eligibility criteria is the same and the duties are identical in every aspect.
In this case, it was observed by the bench of Justices Indira Banerjee and JK Maheshwari that, “This Court cannot interfere with the policy decision taken by the Government merely because it feels that another decision would have been fairer; or wiser as held by this Court in State of Madhya Pradesh vs. Narmada Bachao Andolan reported in (2011) 7 SCC 639 and relied upon and re-affirmed in Sudhir Budakoti & Others (supra).”
With this observation, the Top Court allowed the appeal assailing Madhya Pradesh High Court’s order of directing the State Authorities to pay UGC scale of pay as paid to the Librarians of colleges under the Higher Education Department to a Librarian who had claimed the said relief.
In the present matter, Seema Sharma, who was appointed as Librarian-cum-Museum Assistant, Government Dhanvantri Ayurvedic College, Ujjain, after completion of 8 years of service, had claimed the UGC scale of pay as paid to the persons in the senior scale of Librarian in colleges under the Higher Education Department. Since her request was not acceded to by the State Authorities, she had approached the High Court claiming the said relief under the Madhya Pradesh Education Service (Collegiate Branch), Recruitment Rules, 1990 (“1990 Rules”).
While granting her the relief, the Madhya Pradesh High Court directed for paying Sharma, UGC scale of pay as paid to the Librarians of colleges under the Higher Education Department. Since the State Authority’s intra court appeal filed by the Appellants was dismissed, the authorities approached the Top Court.
It was urged before the Top Court by the State that the 1990 Rules were never applicable to the Respondent. The 1990 Rules were applicable to institutions under the Higher Education Department and that the college where Sharma was appointed was not under the Higher Education Department, but under the Ayush Department of the Government of Madhya Pradesh. It was also submitted that the Rules applicable to institutions under the Ayush Department do not contain any provision that makes the UGC scale of pay applicable to the employees of institutions under the Ayush Department.
The Supreme Court opined that the single and division bench of the High Court had relied on the judgement in State of Madhya Pradesh & Anr. vs. M.K. Verma & four Ors. which wasn’t applicable in the said case as it related to librarians of Engineering Colleges and Medical Colleges. It further said that the case at hand was covered by the judgement dated July 28, 2009, State of Madhya Pradesh & Ors. vs. Ramesh Chandra Bajpai reported in (2009) 13 SCC 635 where the Respondent, a Physical Training Instructor in Government Ayurvedic College had been claiming the UGC pay scale. In the case, this Court held that it was well-settled that the doctrine of equal pay for equal work could only be invoked when the employees were similarly circumstanced in every way. Mere similarity of designation or similarity or quantum of work was not determinative of equality in the matter of pay scales, court had also observed.
Referring to the fact that the eligibility criteria for appointment of Museum Assistant-cum- Librarian under the 1987 Rules was different from the eligibility criteria of appointment of Librarian under the 1990 Rules, the Court said, “It is also well settled that there can be no equality to a wrong and/or illegality. Just because a librarian may have been erroneously granted the UGC pay scale, that would not entitle others to claim the UGC pay scale, if not applicable under the Rules.”
While allowing the State’s appeal and setting aside High Court’s order, the bench further said, “This Court cannot interfere with the policy decision taken by the Government merely because it feels that another decision would have been fairer; or wiser as held by this Court in State of Madhya Pradesh vs. Narmada Bachao Anadolan reported in (2011) 7 SCC 639 and relied upon and re-affirmed in Sudhir Budakoti & Others (supra).”
Recently in the case of Navaneeth N Nath v. State of Kerala, the Kerala High Court has held that merely because a consensual sexual relationship did not culminate in marriage will not be sufficient to attract the offence of rape under Section 376 of the Indian Penal Code.
Justice Bechu Kurian Thomas said that in order establish the offence of rape, it has to be proved that there was a promise to marry based on which consent of the woman to have sex was obtained, and the maker of the promise should have had no intention to uphold his word at the time of making it. The court observed that “A sexual relationship between two willing adult partners will not amount to rape coming within the purview of section 376 of the Indian Penal Code, unless the consent for sex was obtained by a fraudulent act or misrepresentation. Even if a sexual relationship between two willing partners does not culminate in marriage, still the same will not amount to rape, in the absence of any factor that vitiates the consent for sex. A subsequent refusal to marry or a failure to lead the relationship into a marriage are not factors that are sufficient to constitute rape even if the partners had indulged in a physical relationship.“
The Court underlined that to establish an offence of rape, the promise to marry should be intentionally false and the consent of the woman was predicated on such a promise. It stated that “In order to convert a physical relationship between a man and a woman into rape due to the failure to abide by the promise of marriage, it is essential that the decision of the woman to engage in the sexual act must be based on the promise of marriage. To establish a false promise, the maker of the promise should have had no intention to uphold his word at the time of making it and the said promise should have induced the woman to submit herself to the physical relationship. There must be a direct nexus between the physical union and the promise of marriage.“
In this case, the Court was considering the bail application moved by advocate Navaneeth N Nath, a Central Government Counsel in Kerala, who was arrested in connection with a sexual abuse complaint made against him by a colleague, another lawyer. The allegation against Nath was that he had been in a relationship with his colleague for over four years but in the end, he decided to marry another woman.
When the complainant learnt of this and met Nath’s fiance at a hotel, she allegedly tried to commit suicide by slitting her veins. While speaking to the police after the incident, the woman recounted her story, including that she had been pregnant twice when she was with Nath. Subsequently, the Ernakulam Central Police registered a crime alleging offences punishable under Sections 376(2)(n) and 313 of the Indian Penal Code and accordingly arrested Nath.
The Court noted that in the first information statement given by the complainant, she said that she continued in the relationship even though Nath had conveyed to her that he does not intend to marry anyone. Considering the facts and circumstances of the case, the Court said that even though the offences alleged against the petitioner are very serious, still, the possibility of him fleeing from justice is remote especially since he is stated to be a Central Government Counsel. Therefore, the Court granted Nath bail subject to some conditions and directed him to appear before the Investigating Officer as and when required.
Recently, in the case of Dr. SP Raghunath v. Union of India and Others, the Karnataka High Court has held that the Sri Ram Janmabhoomi Teerth Kshetra, a trust set up for the construction of the Ram Mandir in Ayodhya, is not a ‘State’ under Article 12 of the Constitution.
In doing so, Justice SG Pandit refused to entertain a plea of a 71-year-old retired engineer who worked with the Central government seeking a direction to appoint him as Chief Engineer of the Trust on honorarium basis. The judgment stated that “Sri Rama Janma Bhumi Theertha Kshethra is not a State within the meaning of Article 12 of the Constitution of India, writ would not be maintainable. No writ could be issued for appointing petitioner as the Chief Engineer at Sri Rama Janma Bhumi Theertha Kshethra.”
It was submitted by the petitioner that he had made several representations in this regard, all of which were rejected.
Opposing the plea, Additional Solicitor General H Shanti Bhushan argued that the petitioner has no right to seek any appointment, that too at the Ram Janmabhoomi Trust. It was submitted that the Trust does not comes under the definition of ‘State’ under Article 12 of the Constitution of India.
Agreeing with this submission, the Bench Court that the petitioner has no right to seek appointment as the Chief Engineer of the Trust.
Moreover, the Court was also of the view that for issuance of writ of mandamus, one has to establish his legal right and corresponding legal duty on the authority to consider the request. However, since the petitioner has no right, and the Central government has no duty to consider his request, no relief could be granted in this writ petition.
Consequently, the petition was dismissed.
A division bench comprising of Justice Siddharth Mridul and Justice Gaurang Kanth, in the case of Citicap Housing Developments Ltd v. Union of India & Ors., the Delhi High Court has observed that merely placing the Sale Deed on record will not absolve a party from its burden to establish its right to claim compensation in respect of a land when the fact of possession in its favour is not established from the documents available on record.
The bench was dealing with a plea seeking a direction against the authorities to hand over or restore back the vacant and peaceful possession of a land. In the alternative, the Petitioner also sought a direction against the authorities to acquire the land in question under the Right to Fair Compensation and Transparency in Land Acquisition and Resettlement Act, 2013.
It was the case of the Petitioner, Citicap Housing Development Limited, that the land in question was not acquired by the Government and the same was in possession of its respective owners. It was stated that the Registrar of High Court had executed the sale deed dated November 8, 1993 in favour of the Petitioner. In terms of the said registered sale deed, the Petitioner was claiming itself to be the absolute owner of the land in question. Further, the land in question was mutated in the name of the Petitioner in the revenue records. It was thus the case of the Petitioner that the land in question was in illegal possession of the DDA and hence they approached DDA for handing over the possession of the land in question to the Petitioner.
As DDA failed to take any action on the said request, the Petitioner approached High Court by filing a writ petition. Vide order dated December 1, 1997, the Court directed the parties to maintain status quo with regard to the land in question. It was then contended that during the pendency of the aforesaid Petition, the Petitioner applied for demarcation of the land in question with the SDM (Kalkaji). The demarcation was carried out and the demarcation report concluded that the land in question was the part of a developed colony, however, the exact location of the land in question could not be identified during the demarcation proceedings. It was argued by the Petitioner that they had issued a legal notice to the Delhi Jal Board asking them to vacate the land in question. However, no positive response with regard to the said legal notice was received. The Petitioner had filed various representations with the Respondents for acquiring the land in question and to award market value of the said land as compensation to the Petitioner or in the alternative, to allot another plot having same market value as that of the land in question. However, no response was received. Accordingly, the petitioner approached the High Court.
The Court was of the view that the matter involved disputed questions of fact which could not be adjudicated in a writ petition. It noted that the Petitioner claimed to be the purchaser of the land in question. However, it was also noted that the Respondents were in possession of the land in question even before the execution of the sale deed in respect of the said land in favour of the Petitioner. The court stated that “There appears to be nothing on record to show that the vacant possession of the land in question was ever handed over to the Petitioner. The identity of the land in question is still under dispute and the issue as to in whose possession is the land in question is yet to be established. How, when and under what circumstances, the Respondents came into possession of the land in question is also to be ascertained. All these facts, according to this Court, have to be established by leading evidence in accordance with law.” It added “The Petitioner has to establish its right under the law to claim the substantial relief as claimed in the present Writ Petition. Merely by placing on record the Sale Deed will not absolve the Petitioner from its burden to establish its right to claim compensation in respect of the land in question when the factum of possession in favour of the Petitioners not established from the documents available on record.”
The Court was therefore of the view that the Writ Petition was not the appropriate remedy for the Petitioner. The Court noted that the Petitioner was a subsequent purchaser who purchased the land in question from the earlier original or recorded owners, however, there was nothing on record to show that the possession of the said land in question was handed over to the Petitioner. Therefore, the Court dismissed the petition by ordering thus “The Petitioner is however at liberty to pursue other remedies as available under the law for establishing its rights to claim substantial reliefs as claimed under this Petition. It is clarified that this Court has examined the matter on the limited issue of its maintainability and no opinion has been expressed on the merits of the Petition.”
The Madras High Court Single-judge bench of Justice G Jayachandran, in the case of Dhananchezhiyan v. The State Represented by the Inspector of Police, has held that a husband’s willful conduct of having an extramarital affair and then forcing his wife to accept the same and to give money to sustain that affair, will amount to mental cruelty under Section 498A of Indian Penal Code. However, the court also held that mere act of having extramarital affair will not be sufficient to hold a person guilty of abetment of suicide. It stated that “The cruelty explained in the statute, includes both mental and physical. The willful conduct of the applicant having extra martial affair with another married lady and forcing the deceased wife to accept his conduct and also to feed him money for his affair, can be termed as mental cruelty and harassment. Hence, this Court finds that the conviction of the accused under Section 498A of IPC is perfectly legal and hence confirmed.”
The bench was hearing a criminal revision petition filed by a husband challenging an order passed by a trial court convicting him under Sections 498A and 306 of the Indian Penal Code. As per the prosecution case, the husband was having an extra marital affair with a lady, with whom he eloped leaving his wife and three daughters. After a few years, he returned to his house along with the other lady, and often assaulted the deceased wife asking her to bring money from her house. On the fateful day, the husband and the other lady his wife beat up the wife and drove her out of the house along with his daughters. She left the house and pushed her children into an irrigating well and she too jumped into the well. Two days later, 4 dead bodies were found floating in the well and same was informed to the police, leading to registration of the FIR.
As far as the charge of abetment of suicide was concerned, the bench noted that though the prosecution could prove its case of cruelty, the evidence on record fell short to prosecute the appellant husband. The court noted that “The depression caused by her husband’s extra marital affair was the cause for her to take the extreme decision to commit suicide. But, the very act of having extra marital affair is not sufficient to hold the accused is guilty of abetment. The prosecution has not laid any evidence that the husband aided or instigated the deceased to commit suicide. The evidence for prosecution has only proved that the mental cruelty caused on deceased pressurising her to get money from her parents to meet his expenses and his extra martial affairs satisfies the ingredient of Section 498-A of IPC.” The bench, therefore, partly allowed his plea by acquitting him of the charge of abetment of suicide while upholding the charge of cruelty.
Recently, the Delhi High Court in the case of Social Jurist v. GNCTD, directed the Delhi Government to ensure that there is uninterrupted supply of sanitary napkins to the girl students in government-aided schools under its Kishori Yojana.
A division bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad disposed of a public interest litigation preferred by NGO Social Jurist through Advocates Ashok Agarwal and Utkarsh Kumar, raising concern in respect of halting the scheme. It was stated that the Department of Education of the Delhi Government had adopted a scheme namely Kishori Yojana scheme whereby the girl students were to be provided with sanitary napkins. However, since January 2021, the distribution of the same was stopped, putting the girls students to great discomfort.
Government counsel SK Tripathi apprised the Bench that a fresh tender in this regard had already been floated and that efforts are being made to finalize the same.
In court stated that “In order to ensure that the supply of sanitary napkins is not discontinued, all Heads of Schools, Deputy Director of Education and other officers have been empowered and given sufficient funds to procure sanitary napkins from Government e marketplace for distribution.” In view of the fact that an interim arrangement has been made, the Bench was of the view that no further orders are called for. The Court thus disposed of the plea by ordering thus: “The Government shall also in future ensure an uninterrupted supply of sanitary napkins to girls students under the Kishori Yojana Scheme.”
Recently, the Gujarat High Court in the case of Jayeah Nebhabhai Kambariya v. State of Gujarat has held that no writ can lie on the principle that candidates have a legitimate expectation to get their raw marks known or attempt answer keys. It was further remarked, “merely because the apprehension of the petitioners is that they had got less marks than expected is no ground on which a challenge to the adoption of normalization procedure can be sustained.“
The Bench comprising Justice Biren Vaishnav was hearing an SCA seeking direction to the State Government to declare the attempt answer keys and raw marks of the Petitioners and further elaborate the normalisation method of the examination. It was prayed that the authorities should not initiate the process of awarding appointment letters to selected candidates till the disposal of the petition.
The Petitioners were candidates who had appeared for the recruitment process in an advertisement of 2019 for the posts of ‘Vidhyut Sahayaks’. The test results were declared in 2021. The Petitioners were hopeful to get their raw marks and attempt answers keys of the examinations. It was claimed that the electricity companies had uploaded the answer keys but had removed them from the official website after some time. The RTI filed by the Petitioners in this regard was rejected. It was primarily contested by the Petitioners that they had the ‘fundamental right’ to know their raw marks and the answer keys for the sake of transparency. To bring home this contention, reliance was placed on Mradul Mishra v. Chairman, UP Public Service Commission, Allahabad 2018(3) Apex CJ 359. Further, it was evident from the answer keys that one of the candidates got 104/100 due to which the results were removed from the website. Finally, it was submitted that permitting candidates to see the marks would ensure fair play as was laid down in Kerala Public Service Commission and Others vs. The State Information Commission and Others Civil Appeal No 823-854 of 2016.
The Respondent opposed the petition on the ground that it was clearly stated that normalisation of marks methodology would be adopted. The general rules of the examination did not allow for disclosure of raw marks and therefore, no objection could be raised by the Petitioners after subjecting themselves to the examination process. Further, the Respondent authorities opposed the prayer for restraining the award of appointment letters. Reference was made to Manish Kumar Shahi vs. State of Bihar (2010) 12 SCC 576 to bolster this contention.
Referring to the recruitment advertisement, the High Court concluded that it was known to the candidates that the examination would be held in multiple batches if the number of candidates is too large. It was further stated that normalisation methodology would be utilised for finalising the scores. The Bench disagreed with the Petitioners with regard to the disclosure of raw marks by opining that merely because the Petitioners were unemployed individuals who would benefit from the disclosure of marks, there was no ground basis which such a writ could be granted.
Perusing the normalisation methodology in detail, the High Court held that the Petitioners could not have a legitimate expectation to get their marks known. Accordingly, the petitions were rejected.
The Kerala High Court recently ruled that a Magistrate Court is bound to apply its mind while exercising the powers conferred to it under Section 156(3) of the Code of Criminal Procedure (CrPC).
Justice Kauser Edappagath stated that while taking cognizance of offences or ordering an investigation into any cognizable case, courts should not merely forward all complaints they receive like a post office. As such, it was emphasised that the powers under Section 156(3) cannot be exercised casually or mechanically but are required to be exercised judiciously. The court stated that “True, at that stage, the Magistrate/Court is not required to embark upon an in-depth roving enquiry as to the reliability or genuineness of the allegations in the complaint. However, the Magistrate/Court should not adopt the easy way of forwarding the complaint unmindful of the consequences of forwarding such complaints. The Magistrate/Court is not merely functioning as a “post office” in forwarding anything and everything filed in the form of a complaint.” The Court added that “The Magistrate/Court has a duty to protect the interest of the accused also since, at the time of conducting inquiry or forwarding of the complaint to the police under S.156(3) Cr.P.C, the accused does not get any right of hearing.”
In this case, an Additional Public Prosecutor of a District and Sessions Court in Lakshadweep had approached the High Court seeking to quash a Sessions Court order directing a police investigation into a complaint registered against him under the POCSO Act and the Juvenile Justice Act. The 2nd respondent herein is a lawyer practising in Lakshadweep and was representing an accused in another POCSO case where a minor girl was kidnapped and sexually assaulted. Initially, the 2nd respondent put up a Facebook post alleging that the petitioner was constantly contacting the minor survivor and had a role in her missing. However, a case was registered against the 2nd respondent for revealing the identity of the survivor in the post. Following this, the 2nd respondent filed numerous complaints with the same allegation. However, the Station House Officer did not register a case. Soon the Sessions Court forwarded a private complaint it received from the 2nd respondent to the SHO for investigation under Section 156(3). This order is challenged by the petitioner here.
Advocate S. Rajeev appearing for the petitioner argued that the 2nd respondent’s complaint was maliciously instituted with an ulterior motive to wreak personal vengeance on the petitioner and that the Sessions Court forwarded the complaint mechanically without application of mind.
Standing Counsel V Sajith Kumar appearing for the Union Territory of Lakshadweep agreed with the petitioner and submitted that the court below ought to have rejected the complaint at the threshold rather than forwarding the same for investigation under Section 156(3).
However, Advocate Vijin Karthik appearing for the 2nd respondent argued that the Magistrate was not required to conduct a roving enquiry as to the allegations in the complaint at the time of forwarding the same to the police for investigation u/s 156(3). The Court noted that to attract the offence u/s 75 of the JJ Act, the accused must have sexual intent and actual control or charge over the minor.
“Without ascertaining whether there is an allegation anywhere in the complaint that the petitioner had any sexual intent to attract S.11(iv) of the POCSO Act or whether the petitioner had actual control or charge over the child, the court below simply forwarded the complaint to the police without a speaking order.” The Judge also examined a report from the SHO which communicated that the allegations were found to be baseless as per the investigation.
Therefore, going through some decisions, the Court held that even though a Magistrate/court is not required to conduct a roving enquiry, it has to apply its mind and issue a speaking order after ascertaining if the offences alleged would be prima facie attracted.
“The Magistrate/Judge should certainly scrutinize the allegations in the complaint to satisfy himself that it discloses the necessary ingredients of the offence for which investigation is intended to be ordered and to find out whether it is a matter to be forwarded to the police to collect materials for a successful prosecution against the accused. The Magistrate/Court should ensure that the complaint is supported by an affidavit duly sworn in by the complainant.” Since this was not done by the Magistrate, the High Court quashed the case against the petitioner to prevent an abuse of process of law.
The Supreme Court bench of Justices CT Ravikumar and Sudhanshu in the case of Dhulia K.M. Manjunath v. Erappa. G (D) reiterated that mere acceptance of the rent by the landlord after the expiry of the period of lease would not amount to waiver of the termination of lease.
In this case, in a suit for eviction filed by a landlord, the tenant took a contention that there was no valid termination of tenancy as per Section 106 of the Transfer of Property Act, 1882. Accepting this contention, the Trial Court dismissed the suit. Allowing the revision petition filed by the plaintiff-landlord under Section 18 of the Karnataka Small Cause Courts Act, the Karnataka High Court held that in view of Section 111(a) of the Act, the lease would determine by the efflux of time and under such circumstances notice of termination under Section 106 of the Act was not required. Referring to the case of Shanti Prasad Devi & Anr. v. Shankar Mahto & Ors., the High Court held that mere acceptance of the landlord after the expiry of the period of lease would not amount to waiver of the termination of lease. Therefore, the defendant, approached the Apex Court by filing a Special Leave Petition.
The Apex Court bench referring to evidence on record, noted that the parties have agreed to go by the provisions of the TP Act and thus the lease could be taken as lease for a period of eleven months. The court observed that “In view of the evidence thus obtained and taking into account the decision in Shanti Prasad Devi’s case (supra) the High Court held that mere acceptance of the rent by the landlord after the expiry of the period of lease would not amount to waiver of the termination of lease. Relying on a Division Bench decision of the High Court in M.C. Mohammed Vs. Smt. Gowramma (AIR 2007 KAR 46) rendered relying on the decision in Pooran Chand Vs. Motilal & Ors. (AIR 1964 SC 461), held that on expiry of the term fixed under the deed the tenant would not be entitled to statutory notice under Section 106 of the TP Act. It was found that on determination of the lease by efflux of time no further termination of the tenancy by issuing a statutory notice to bring termination of a lease already terminated is necessary.“
Dismissing the SLP, the bench held that the judgment and decree of the Civil Court was not ‘according to law,’ and therefore the High Court was certainly within its rights to set aside the decree in exercise of its revisional jurisdiction.
In the case of Sadik Khan @ Sadik v. State of Karnataka, Justice K Natarajan while denying relief to brothers Sadik Khan and Adil Khan, who are in custody for almost one and half year and sought release to look after their ailing father. It observed, “Merely stating that amount of Rs.5 to 6 lakhs required that itself is not a ground for grant of bail to these petitioners to save the life of their father as they have committed murder and taken life of a innocent person. Life is important to everybody not only to the accused. But also, to the victim family.“
The accused were charged by the Electronic City Police Station, Bengaluru for the offence punishable under Sections 341, 323, 143, 144, 148, 302 r/w section 149 of Indian Penal Code, 1860 on the basis of a complaint lodged by Akram Pasha, brother of deceased Syed Afzal. It was alleged that the accused has assaulted and murdered the complainant’s brother and one Irfan was an eye-witness to the incident. The Petitioners’ bail pleas were rejected by the Sessions Court and the High Court in 2021. The instant plea was filed allegedly in view if the “changed circumstances”. It was contended that all the co-accused persons were granted bail by the coordinate bench, except these petitioners whereas the trial is yet to begin. It was further submitted that father of the two accused is suffering from health ailment and since there is no one there to look after him, their presence is very much essential. Prosecution opposed the successive bail petition and submitted that there are no changed circumstances since the court has already considered these grounds in detail on earlier occasion.
The bench on going through records and the previous order of the High Court refusing bail to the accused noted “Considering all the grounds earlier this court has rejected the bail petition.” The Court noted that even though the accused claimed that now their father is in “dangerous condition” and they require approximately 6 lakh rupees for his treatment, yet, “Except this document, no other document is produced by the petitioners to show that he has taken treatment in any other hospital and he has not gone to the Jayadeva Cardiology Specialty Government Hospital.” It added, “Merely stating that amount of Rs.5 to 6 lakhs required that itself is not a ground for grant of bail to these petitioners to save the life of their father as they have committed murder and taken life of a innocent person. Life is important to everybody, not only to the accused. But also to the victim’s family. Therefore, when petitioners have committed brutal murder of one person they cannot seek bail to save life of another person i.e. their father. That apart, there are no additional grounds made out for release them on bail.“
The Karnataka High Court single judge bench of Justice Suraj Govindaraj sitting at Dharwad, in the case of Dada s/o Balu Rooge v. Appasaheb s/o Kiran Keste has held that even if the plaintiff has not sought a relief of possession in a suit for specific performance, but had only sought the prayer for execution of the sale deed, the Execution Court can issue a delivery warrant directing the Judgment debtor to handover possession of the property, upon decree holder performing all obligations as stated in decree.
The bench observed that “Such an order would be within the purview of Subsection (3) of Section 28 of the Specific Relief Act, 1963 and would not amount to going beyond the decree for specific performance.“
The bench observed that Section 22(1) of SRA provides the manner and nature of relief that could be sought for by the plaintiff. Section 22(2) provides that the reliefs which have been sought for in sub-clause (a) and (c) of Section 22(1) of the Act cannot be granted unless it has been specifically claimed. The proviso, however, provides an opportunity to the plaintiff to seek the said relief at any stage of the proceedings of the suit if not already sought by way of amendment to include such a claim or relief. It then observed, “it is clear that unless the relief of possession or partition and separate possession of the property in addition to performance is sought for, no such relief can be granted.“
Then the court adverted to Section 28 of the Specific Relief Act and said “A perusal of Sub-section (3) of Section 28 indicates that if the purchaser or lessee pays the purchase money as directed, then such a purchaser would be entitled to the execution of the proper conveyance or lease, delivery of possession or partition and separate possession and further that no separate suit in respect of any relief which could be claimed under the Section would lie at the instance of the vendor, purchaser, lessor or lessee.“
Following which it held, “The decree-holder having paid the consideration amount and having complied with the directions issued in the decree, I am of the considered opinion cannot be deprived of possession of the property inasmuch as the mere execution of a sale deed would confer no right on the purchaser/decree holder and the title of the purchaser would only remain on paper without the purchaser being entitled to make use of the property subject matter of the decree, despite having made payment of valuable consideration for the same.“
The bench held thus while dismissing a petition filed by one Dada challenging an order passed by the Execution court allowing an application made by the decree holder and issuing a delivery warrant against the judgment debtor in respect of the subject suit property.
BOMBAY HIGH COURT WHILE ALLOWING TERMINATION OF MINOR’S 16 WEEK PREGNANCY SAYS THAT CAN’T FORCE RAPE VICTIM TO MOTHER A CHILD
In the case of ‘A’ v. State of Maharashtra and Anr., the Bombay High Court bench of Justices A.S. Chandurkar and Urmila Joshi-Phalke allowed the termination of a 16 weeks pregnancy of a minor who was a victim of sexual abuse and was also in custody at an Observation Home for a crime of murder under Section 302 of the Indian Penal Code (IPC).
A bench noted that the Apex Court has observed that reproductive choice is an insegragable part of a woman’s personal liberty as envisaged under Article 21 of the Constitution of India. “She cannot be forced to give birth to a child…She has a choice to give birth to the child or not,” it observed.
In this case, the petitioner was a minor who had committed murder and was in custody at an Observation Home. It was discovered by the Investigating Officer that she was pregnant because of sexual abuse. A crime under Protection of Children from Sexual Offences Act, 2012 was registered. It was pleaded by the petitioner that she is from an economically weak background, and has also undergone trauma due to sexual abuse, which she continues to suffer from. She pleaded that given her circumstances it would be difficult for her to raise a child. Neither was she equipped financially nor mentally. Moreover, this was an unwanted pregnancy.
The bench called for a Medical Report, which stated that her pregnancy was 16 weeks, yet it consented for termination of her pregnancy. The bench noted that Section 3 of the Medical Termination of Pregnancy Act, 1971 provides for termination of pregnancy:
• when the length of the pregnancy does not exceed twelve weeks
• When the length of the pregnancy exceeds twelve weeks, if more than two registered medical practitioners are of the opinion that the termination is in good faith
• If the continuance of the pregnancy would involve a grave risk to the life or mental health of the pregnant woman
• If there is a substantial risk that if the child were born, it would suffer from serious physical or mental abnormalities
Explanation 1 further allows termination if the pregnancy is caused by rape as the anguish caused by such pregnancy shall constitute a grave injury to the mental health of the pregnant woman.
The High Court held that termination of pregnancy can be permitted post twelve weeks in certain situations. The bench noted that in the present case the petitioner is a minor and is unmarried. She is a victim of sexual abuse. Moreover, she is lodged in an Observational Home for an offence of murder. She is from an impoverished background. She also contends that the pregnancy is unwanted, and she is suffering from severe trauma.
The bench stated that declining permission to terminate the pregnancy would be tantamount to compelling her to continue with her pregnancy which in the circumstances will not only be a burden on her, but it would also cause grave injury to her mental health. Considering these observations, the court allowed the termination of the petitioner’s pregnancy regardless of her having completed sixteen weeks.
In the case of Dr. Mandati Thirupathi Reddy v. Secretary General P.C. Mody and Ors., the Supreme Court, refused to entertain the plea of Dr. Mandati Thirupathi Reddy who had sought to file nomination for the ensuing election of President of India, but the same was rejected by the returning officer of Secretary General, Lok Sabha, Parliament House. “No case to interfere by this court is made out. Dismissed.”
A vacation Bench comprising of Justices Surya Kant and J.B. Pardiwala noted that the petitioner’s nomination paper did not comply with the requirements envisaged under Section 5B(1)(a) of the Presidential and Vice Presidential Election Act, 1952. “It is undeniable that the nomination paper sought to be submitted by the petitioner is not in conformity with S5B(1)(a) of the 1952 Act.”
Reading out his educational and professional qualifications from his petition and his eligibility for filing nomination, the petitioner appearing as party-in-person submitted that he has in-depth understanding of the Constitution, which is essential for holding the prestigious post of the President of India. He apprised the Bench that he is an Advocate in service, has three international honorary doctorates and secured 72 marks in his LLM paper on Constitutional Law: New Challenges. He also submitted that candidates well-versed in the law of the land should be given importance rather than those politically strong.
Observing that the rejection of the nomination did not suffer from any infirmity, the Bench refused to interfere with the decision of the returning officer. “In this view of the matter, the rejection of the nomination form of the petition does not suffer any infirmity.”
A vacation bench of the Supreme Court had to rise within 30 minutes after adjourning all the regular hearing matters listed before it as there was no appearance by lawyers in any of the cases.
It may be noted that the bench had already heard the fresh matters in the first 30 minutes. The cases which couldn’t be taken up due to non-appearance of lawyers were the regular hearing matters (item numbers 101-105) all dating back to 2014-2015.
The bench had to direct that the same list for regular matters be repeated tomorrow as no counsel was present before it in these matters, either physically or through virtual mode. “Repeat the same list tomorrow, no one is there today”, the Bench observed.
In the case of Manoj Pratap Singh v. State of Rajasthan, while upholding the death sentence awarded to a man for the rape and murder of a seven and a half year old girl who was mentally and physically challenged, the Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar observed that it has never been the effort of the Courts to somehow make the death penalty redundant and non-existent for all practical purposes. It stated that “The quest for justice in such cases, with death sentence being awarded and maintained only in extreme cases, does not mean that the matter would be approached and examined in the manner that death sentence has be avoided, even if the matter indeed calls for such a punishment.“
In this case, the victim was kidnapped by the convict on a stolen motorcycle by misusing the trust gained by offer of confectionery items. Thereafter, she was raped and her head was smashed, resulting in multiple injuries including fracture of frontal bone. There were gruesome injuries on the private parts of the victim.
Dismissing the appeal, the bench observed that the crime in question had been of “extreme depravity”, particularly looking at the vulnerable state of the victim and also the manner of committing the crime. The court observed that the judicial process, in our view, would be compromising on its objectivity if the approach is to nullify the statutory provision carrying death sentence as an alternative punishment for major offences (like that of Section 302 IPC), even after it has passed muster of judicial scrutiny and has been held not unconstitutional. The pursuit in collecting mitigating circumstances could also not be taken up with any notion or idea that somehow, some factor be found; or if not found, be deduced anyhow so that the sentence of death be forsaken. Such an approach would be unrealistic, unwarranted and rather not upholding the rule of law.
The court also rejected the suggestion made on behalf of the appellant that his psychological evaluation report may be called. The appellant had relied on the case of Anil @ Anthony Arikswamy Joseph v. State of Maharashtra: 2014 (4) SCC 69, in which it was observed that, in appropriate cases, after conviction, the Court may call for report to determine whether the accused could be reformed or rehabilitated; and it would depend on the facts and circumstances of each case.
“Again, there cannot be any universal formula for calling for a report in terms of the said decision in Anil. For example, in the present case, where the appellant is found to be indulging incessantly in criminal activities before the crime in question; has carried out gruesome deeds of the present crime; has further been involved in questionable jail conduct, including quarreling with a fellow inmate and earning 7 days’ punishment; and then, to cap it all, has been involved in an offence of no less degree than murder of another jail inmate, calling for any further report of the likelihood of reformation and rehabilitation of the appellant could be proposed only if the judicial process is determined to annul the death sentence altogether, by finding one way or the other to avoid the same in every case. Such an approach would be counter-productive to the entire system of maintenance of order in the society; and could be countenanced only if we would be inclined to think that whatever be the society’s cry for justice, the statutory provision of death sentence should itself be given its interment or burial. Obviously, this approach would be squarely contrary to the statutory mandates as also the principles enunciated by multiple Constitution Bench decisions of this Court; and would strike at the roots of the rule of law. In the given set of circumstances of this case, the suggestions about calling for any so called psychological evaluation report could only be termed as impractical and unrealistic and could only be rejected.”, the court observed.
Theory of Residual doubt: The court also refused to proceed on the theory of residual doubt. It said that the question of sentence has to be determined in accordance with sentencing principles enunciated by the Constitution Bench in Bachan Singh (supra) and the principles/norms further evolved by this Court in the other decisions. Regarding the theory, the bench observed in the case based on circumstantial evidence, the conclusion of guilt is recorded only after the circumstances are found to be forming an unbreakable chain, so consistent as to rule out any other hypothesis except the guilt of the accused. These being stringent norms, as followed consistently by the Courts based on the panchsheel principles expounded in Sharad Birdhichand Sarda (supra), and requirement being of the proof of the case beyond reasonable doubt, theoretically there is no scope for any ‘residual doubt’ operating even in the cases of circumstantial evidence. The cases in which theory of residual doubt has at all been referred, had been standing on their own facts, where alternative to death sentence was considered appropriate. However, while taking up the matter for sentencing, it is not expected to reopen the chain of circumstantial evidence to find any weak link which may fall in the category of residual doubt. Needless to reiterate that if at all any such doubt is reasonably existing, the very basis of conviction would be in question. To put it in other words, after the final conclusion on the guilt and after pronouncing conviction, no concept of residual doubt as such is available for the purpose of sentencing.
The Orissa High Court has ordered compensation to a woman who got pregnant even after undergoing sterilization process conducted by the State. While criticising the State for not following the proper procedures, a Single Bench of Justice Arindam Sinha observed that “State not having itself followed the procedure to the letter cannot turn around and say that petitioner had omitted to act as per undertaking given by her, to report that she missed menstrual cycle after the operation. As aforesaid analysis of pleadings in paragraphs 4 and 6, respectively of the petition and counter, do not support this contention of State.”
In this case, the petitioner underwent the sterilization procedures organised by the State on 2nd January 2014. Even after that, she missed her regular menstrual periods. Subsequently, she discovered herself to be pregnant. Being aggrieved by the aforesaid negligence and being unable to bear the expenses to rear the child, she had approached the High Court praying compensation from the State.
The Court noted that there appears to have been omission by the State in obtaining current pregnancy status before conducting sterilization operation on petitioner. The Court concluded that the sterilization operation resulted in failure to prevent the pregnancy of the petitioner. Hence, it held that she is entitled to compensation at par with the aforementioned indemnity limit of Rs. 30,000/- and the State was also directed to pay Rs. 20,000/- towards the costs. The compensation and costs were ordered to be paid within three weeks of communication of the order.
The US Supreme Court overturned the landmark ruling of Roe v. Wade that established the constitutional right to abortion in the U.S. in 1973. The Court in a 6-3 ruling powered by its conservative majority upheld a Republican-backed Mississippi law that bans abortion after 15 weeks.
The landmark ruling is in favour of the state of Mississippi in a highly controversial case, Dobbs v. Jackson Women’s Health Organization wherein the State of Mississippi sought to invalidate Roe v. Wade and outlaw nearly all abortions at and after 15 weeks gestation. The ruling also overturned the court’s precedent in Planned Parenthood v. Casey, which was based on Roe and found in 1992 that states can’t enact abortion restrictions that pose an “undue burden” on the person getting the abortion.
Writing for the majority, Justice Samuel Alito held that the 1973 Roe ruling, and subsequent High Court decisions reaffirming Roe, “must be overruled” because they were “egregiously wrong,” the arguments “exceptionally weak,” and so “damaging” that they amounted to “an abuse of judicial authority.” The majority opinion was endorsed by Justice Clarence Thomas, appointed by the first President Bush, and the three Trump appointees — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Chief Justice Roberts, appointed by President George W. Bush issued a concurring opinion. “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives”, the majority opinion held.
Justice Alito averred further, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely the Due Process Clause of the Fourteenth Amendment,”. “That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty,” he added.
Near the end of the opinion, Justice Alito sought to allay fears about the wide-ranging nature of his opinion by underscoring, “To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
The dissenting judges were Justices Stephen Breyer, appointed by President Clinton, and Justices Sonia Sotomayor and Elena Kagan, appointed by President Obama. In their scathing joint dissent, the Court’s liberal justices wrote, “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.” “The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman’s rights to equality and freedom,” the dissent highlighted. While concluding, the liberal justices underscored, “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent,”.
Stressing that the preventive detention law “strikes hard on the freedom and liberty of an individual, and cannot be exercised in a routine manner”, the Supreme Court in the case of Shaik Nazneen v. The State of Telangana & Ors. has observed that “the powers to be exercised under this law are exceptional powers which have been given to the government for its exercise in an exceptional situation”.
The Court has once again highlighted the distinction that while a law and order situation can be dealt with under the ordinary law of land, it is only when there is a public order situation that the invocation of the powers under the law of Preventive Detention is justified, absent which the preventive detention would be bad and would be in violation of Articles 21 and 22 of the Constitution as it encroaches upon the liberty and freedom of an individual.
The bench of Justices C. T. Ravikumar and Sudhanshu Dhulia was hearing an appeal against the March decision of the Telangana High Court by which the Habeas Corpus Writ Petition of the petitioner- wife challenging the order of prevention of detention of her husband had been dismissed. The brief facts of the case, as recorded by the top court, are that the prevention detention order was passed against the husband of the petitioner on 28th October, 2021 by the Commissioner of Police, Rachakonda Commissionerate on grounds that the detenu was involved in gold chain snatching offences, where victims were mostly women. He has been doing this since the year 2020 in the states of Andhra Pradesh and Telangana. He was involved in as many as 36 gold chain snatching offences. Earlier, the detenu, along with three others, had formed a gang to commit these offences in order to make quick money. It was alleged that they had come to Hyderabad in a car and took shelter in a lodge. Their modus operandi was to first conduct recce of some residential areas and after selecting a suitable residential area, lift two wheelers and motor cycles which were then used in the chain snatching offences. The Apex Court recorded that although according to the Authority the detenu was involved in more than 30 cases but only 4 cases of chain snatching were considered as ground for detention, as the other cases were reported to be behind the proximity period and out of the jurisdiction of Commissionerate.
The bench of Justices Ravikumar and Dhulia noted that in short, against the detenu the FIRs are primarily for an offence of ‘robbery’ under Section 392 of the IPC; that the detention order also says that the crimes were committed in broad daylight and have thus resulted in creation of fear and panic in the minds of the general public, especially women and hence, the government had to interfere in order to “maintain public order”.
“The said four cases were allegedly committed by the detenu within a span of two months between 06.05.2021 to 26.07.2021 and were committed within the jurisdiction of one police station i.e., Medipalli police station. In all these cases, the detenu had moved bail applications before the concerned Metropolitan Magistrate and was granted bail under Section 167(2) CrPC, which is commonly known as ‘default bail’ and the detenu was released on 16.10.2021. The detention order was later passed on 28.10.2021, which was subsequently confirmed by the Advisory Council on 13.01.2022, i.e., within the stipulated time. The detenu is under detention since 28.10.2021. The Preventive Detention Law, under which the powers have been exercised is a long winded statute called the ‘Telangana Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986”, noted the bench.
The bench noted that the powers have been exercised in the present case under Section 3(1) of the Act; that under the aforesaid provision, inter alia, a detention order can be passed against a “goonda”, and a “goonda” has been defined under Section 2(g) of the Act; that since the allegation is that the detenu is involved in four cases of chain snatching i.e., robbery, which comes under offences given under Chapter XVII of the Indian Penal Code, he has been declared a habitual offender and thus a “goonda” vide the detention order dated 28.10.2021; and that under section 3(1) of the Act, detention order can be passed, inter alia, against a “goonda”, “with a view to prevent him from acting in any manner prejudicial to the maintenance of public order…”, and due to the detenu’s alleged involvement in four criminal cases relating to “robbery” he has been declared a “goonda” and it is said that this is acting in a manner which is “prejudicial to the maintenance of public order”.
“A bare reading of the aforesaid provision shows that the “maintenance of public order” has a crucial bearing here and unless the government is justified in holding that the act of the detenu is prejudicial to the maintenance of public order, the preventive detention would be bad and would be in violation of Articles 21 and 22 of the Constitution of India as it encroaches upon the liberty and freedom of an individual”, observed the bench.
Continuing, the bench asserted that there is absolutely no doubt in its mind that the facts and circumstances of the case as alleged in the detention order dated 28.10.2021 reflect a law and order situation which can be dealt with under the ordinary law of land, and that there was absolutely no occasion for invoking the extraordinary powers under the law of Preventive Detention.
“The reasons assigned by the authority in its detention, justifying the invocation of the provisions of the detention law are that the detenu has been granted bail in all the four cases and since he is likely to indulge in similar crime, hence the order of preventive detention. The reason why bail was granted in all four cases, however, has not been given. Bail was granted in all the four cases due to the inability of the prosecution, which did not complete its investigation in time. The bail had to be given as the charge sheet was not filed by the police in all the cases within the stipulated period of 60 days. The fault thus lies with the prosecution. The other reason assigned is that the Trial Court while granting bail did not lay down any conditions. This is again a wrong presentation of the case. Conditions were not imposed simply as it was a default bail, and in bail of this nature conditions are not liable to be imposed”, discussed the bench.
The bench was of the considered view that in the present case invocation of the Preventive Detention Law against the petitioner was not justified; that “the powers to be exercised under the Preventive Detention Law are exceptional powers which have been given to the government for its exercise in an exceptional situation as it strikes hard on the freedom and liberty of an individual, and thus cannot be exercised in a routine manner”.
“The distinction between law and order situation and a public order situation has been dealt with by the Supreme Court in a catena of decisions…In any case, the State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case”, declared the bench. The Court referred to the precedent in Ram Manohar Lohia Vs. State of Bihar on the point of distinction between “public order” and “law and order”.
Mentioning how in a recent decision of the Supreme Court, the Court had to make an observation regarding the routine and unjustified use of the Preventive Detention Law in the state of Telangana, the bench allowed the appeal, set aside the order of detention dated 28.10.2021 and order dated 25.03.2022 of the Division Bench of the High Court and ordered that the detenu be released immediately in case he is not required in any other case.
In the case of Vijay Babu v. State of Kerala & Anr., the Kerala High Court has held that Section 438 of the Code of Criminal Procedure has no restrictive mandate that a person outside India cannot file an application seeking anticipatory bail. The only limitation is that prior to the final hearing, the applicant must be inside the country to enable the court to impose and enforce conditions contemplated under the statutory provisions.
The pronouncement was made by a single bench of Justice Bechu Kurian Thomas while granting anticipatory bail to actor-producer Vijay Babu in a rape case. It stated that “Section 438 Cr.P.C does not contain a restrictive mandate that a person residing outside the country cannot file an application for anticipatory bail. It is possible that a person can apprehend arrest even outside the country for an offence that occurred in India. With the advancement in investigative technology and communication, the various agencies of investigation could even be deployed to arrest a person outside the country. An apprehension of arrest can arise even while the applicant is residing outside the country. Thus, when a bonafide apprehension exists, the statute confers power on such a person to seek protection from arrest. In the absence of any restrictive clauses in S.438, restricting the right of a person residing outside the country from filing an application for pre-arrest bail, court cannot read into the provision such a restriction which the legislature did not incorporate”.
The prosecution had raised a preliminary objection to the maintainability of the bail application on the ground that Babu was outside the country when the application was filed.
On the basis of decisions in Souda Beevi and Another v. S.I. of Police and Others (2011 (3) KHC 795) and Shafi S.M. v. State of Kerala and Another (2020 (4) KHC it was argued that the presence of the petitioner outside the country disentitles the applicant to seek pre-arrest bail. However, the bench said that no absolute restriction has been laid down in these decisions. “On the other hand, all that those two decisions say is that, atleast before the final hearing, the Court must be convinced that the applicant is within the jurisdiction of the Court so that the conditions if any imposed, could be effectively enforced”, the bench observed.
The bench also referred to the judgment delivered by a Constitution Bench of the Supreme Court in 2020 in the case Sushila Aggarwal and Others v. State (NCT of Delhi) and Another, as well as Shri Gurbaksh Singh Sibbia and Others v. State of Punjab [(1980) 2 SCC 565], wherein it was held that courts cannot read into section 438 Cr.P.C. a restriction, which the legislature had not thought it fit to impose. In fact, the Court deprecated the practice of an over-generous infusion of constraints into section 438 and even observed that such restrictions can make the provision itself constitutionally vulnerable.
In this backdrop, Justice Thomas observed that “Therefore, I am of the considered view that an application for pre-arrest bail can be filed even by a person residing outside the country. However, the only limitation is that prior to the final hearing, the applicant must be inside the country to enable the court to impose and enforce conditions contemplated under the statutory provisions”.
The High Court had earlier observed that it will hear Babu’s application only after he returned to India. Following that, he came back to India and the Court granted him interim anticipatory bail. In the interim order as well, Justice Thomas had made a prima facie observation that the bail application filed by person outside India is maintainable.
In the case of Saud Faisal v. State of Uttar Pradesh & Anr., the Supreme Court has held that “merely because a different statement was given by the same prosecution witness in another case relating to the same incident, that itself would not be a reason for recalling the witness under Section 311 of the Cr.P.C.”
In this case, the petitioner is facing trial in a murder case. In 2014, during the trial, one prosecution witness named Naushad gave a statement that he had identified the petitioner as one of the assailants carrying rifle. Relating to the crime, the petitioner was facing another trial under the Gangsters Act. In the proceedings under the Gangsters Act, the same witness Naushad gave a statement in 2021 that he could not identify the petitioner as one of the assailants as he was wearing a cloth over his face. Relying on the second statement given by the witness in 2021, the petitioner sought to recall him as a witness in the first trial. The trial court rejected this application and the High Court affirmed the rejection. In this backdrop, he approached the Supreme Court.
Affirming the view of the trial court, the Supreme Court bench of Justices Ravikumar and Dhulia proceeded to assert, “The trial court has rejected this application and in our view rightly so, for the reasons that merely because a different statement given by the same prosecution witness in another case that itself would not be a reason for recalling the witness and that too, after a period of seven years.” The bench further held that “It is not a case where a contradictory statement was given by some other witnesses in the present trial.”
The bench then stated that “Under these circumstances, we are not inclined to interfere with the order impugned passed by the High Court. Accordingly, the special leave petition is dismissed.”
LEGAL NEWS
Recently, in the case of Deen Mohd. v. State of Haryana, the bench comprising Justice Pankaj Jain of the Punjab and Haryana High Court upheld an order of the trial court which denied anticipatory bail to an accused, solely on the ground that he had tried to mislead the Court by concealing facts regarding dismissal of his earlier plea. It was observed by the court that “The law is well settled that where a process is “ex debito justitiae” the Court would refuse to exercise its discretion in favour of the applicant where the application is found to be wanting in bona fides…In the considered opinion of this Court, the petitioner has not approached the Court seeking relief of pre-arrest bail with the clean hands and the Lower Court was justified in dismissing the application filed by the petitioner.“
In this case, the petitioner was seeking pre-arrest bail apprehending his arrest in the First Information Report which was registered under the provisions of Haryana Gauvansh Sanrakshan and Gausamvardhan Act, 2015, Prevention of Animals of Cruelty Act, 1959 along with Section 120B of the Indian Penal Code, 1860 and Sections 181/192 of Motor Vehicle Act, 1988.
The application was rejected by the Additional Sessions Judge stating that the Petitioner failed to disclose that his first anticipatory bail application was dismissed as withdrawn. Aggrieved by the decision of the trial court, the petitioner approached the High Court, contending that the reason recorded by the Sessions Court alone cannot be a reason to dismiss the bail.
It was held by the court that the petitioner concealed the very fact of filing first application seeking pre-arrest bail and its dismissal thereof from the Sessions Court. In such a situation, the law is well settled that where a process is “ex debito justitiae” the Court would refuse to exercise its discretion in favour of the applicant. The court concluded that the petitioner has not approached the Court with the clean hands. Court further held that the Lower Court was justified in dismissing the application filed by the petitioner.
Accordingly, the case was dismissed by the court, finding it sans any merit.
LEGAL NEWS
A single judge bench of the Gujarat High Court consisting of Justice Biren Vaishnav in the case of Bhalodiya Ravikumar Jaynatilal v. State of Gujarat held that delay in appointment, when entirely attributable to the employer and caused due to no fault of the candidate could not be allowed to result in a delayed promotion for the said candidate.
In this case the Gujarat Panchayat Services Selection Board issued an advertisement for recruitment to the post of Multi-Purpose Health Worker (Male). The petitioner applied for the same online. He was placed at Serial No. 677, as his written test marks were 55.80 and he got additional 2.79 marks for sports, making his total 58.59.
He was later called for verification of documents. Here he presented himself with a certificate issued by the Principal of Shri Saraswati Vidya Mandir certifying the petitioner’s proficiency in cricket. The Rajkot District Panchayat Services Selection Board informed him that he would not be entitled to the additional 2.79 marks for sports as the certificate was of a school. The petitioner wrote a letter to the respondent indicating that even if his marks for the sports were not considered, he would still be on merit, therefore, he did not insist on the additional marks. The petitioner was not issued an order of appointment on 01.10.2012 like other candidates who were able to join by 03.10.2012. Instead, he was offered an appointment on 08.07.2013 which he accepted and joined on 09.07.2013. Based on this date of joining, the petitioner was placed at merit seniority No. 184 in the seniority list. This petition was filed challenging the said seniority list as the petitioner contended that his placement should not be at Serial No. 184 in list, rather, it should be at Serial No. 105- A
The counsel for petitioner submitted that the candidates who were offered appointment along with the petitioner and who joined on 03.10.2012 were placed on the seniority list at Serial No. 105, merit order 985 and at Serial No. 106 merit no. 1053. Since the petitioner had a higher merit than the candidate at 106, he was entitled to placement at 105-A. The candidates shown at 106 and 107 have subsequently been based on this placement promoted as Multi-Purpose Health Supervisors by an order of 08.03.2019. The petitioner thus submitted that there was no delay on his part which could go against him as it was a delay purely attributable to the respondents who, despite the petitioner accepting the stand of the respondents of not insisting a certificate of cricket issued an appointment order only after nine months and eight days.
Per contra, the counsel for respondent submitted that since the petitioner could not produce the Sports Certificate in accordance with the rules, he was addressed a letter dated 03.10.2012 to submit the same within four days. He did not do so. Though the petitioner was not holding a requisite Sports Certificate for availing the benefit of additional marks, he had misrepresented his case while submitting his application by providing incorrect information for availing employment. Thus, it was submitted that the delay was solely on account of the petitioner for which the authorities could not be held responsible.
The court held that the delay could not be attributed to the petitioner who had immediately within four days offered himself without insisting for the Certificate of Cricket and on consideration of the merit at 55.80 minus the score of 2.79 percent of cricket. The court further held that “Immediately, after offering appointment to the petitioner, the petitioner stepped back accepting the stand of the respondents in not insisting for his Sports Certificate being considered. The respondents reacted and responded in appointing the petitioner only on 08.07.2013 which was a delay purely attributable to the respondents. Pending the petition, the candidates at serial numbers 106 and 107 have been appointed as Multi Purpose Health Supervisors. The petition is allowed, accordingly. The consequential effect of quashing the placement at 184 of the petitioner would entitle the petitioner for being promoted to the post of Multi Purpose Health Supervisor with effect from 08.03.2019 with all consequential benefits including arrears of pay.”
LEGAL NEWS
A Public Interest Litigation has been filed by Advocate Vishal Tiwari in the Supreme Court seeking the setting up of a Special Investigation Team to enquire into mass violence and damage to public properties, including that of railways, during the widespread protests against the Centre’s “Agnipath” recruitment scheme for armed forces.
The petitioner says that the “angry aspirants” set fire to at least 20 bogies of the New Delhi – Bhagalpur Vikramshila Express and New Delhi-Darbhanga Bihar Sampark Kranti Express at Lakhisarai and Samastipur stations and blocked highways in the state of Bihar. The intensity of protests is such that the Eastern Central Railway had to cancel 164 trains. It is further said that a large number of passengers were seen stranded on the different railway stations including Patna Junction. People are also standing in bus terminals waiting for buses as the highways are also blocked due to the protest.
Quoting news reports, the petitioner says that nationally more than 300 inter-state trains have been affected and more than 200 prime trains have been cancelled so far.
The petition has added the Union of India and the States of Uttar Pradesh, Rajasthan, Haryana, Bihar and Telangana as the respondents.
The petitioner also seeks the constitution of an expert committee under the Chairmanship of Retired Supreme Court judge to examine the impact of the “Agnipath” scheme on the armed forces and national security.
Questioning the Agnipath scheme, the petitioner says “such short term contractual army recruitment is a demotivation to the army aspirants as it brings an uncertainty to such aspirants as there will be no future for such individuals after the fixed 4 period as only 25% personnel are retained”.
LEGAL NEWS
A single judge bench comprising Justice Rumi Kumari Phookan of the Gauhati High Court in the case of Dharampal Satyapal Ltd. v. The State of Maharashtra and 3 Ors., held that only a Food Inspector can investigate a commission of offence related to food items as per the Food Safety Standards Act, 2006 (FSS Act).
The petitioner in this case was a company which has been granted license by the competent authority under the FSS Act to manufacture pan-masala, which is classified as a food product under Food Safety and Standard Regulation. An FIR was registered against one Md. Imran Mohammed Hanif under Section 188/272/273/328 IPC, read with Section 26(2)(i)—(iv)(e) and Section 59 of the FSS Act, for possession of Rajanigandha pan-masala and Scented Tobacco and Baba Nabaratan pan-masala, etc. which are prohibited items of food, in view of the notification issued by the Commissioner of FSS and Drug Administration, Maharashtra. In course of investigation, the stock of pan-masala, tobacco, recovered from the accused was seized and he was arrested. Various notices were served upon the petitioner Company at New Delhi, for production of certain documents under Section 91 of the CrPC and the petitioner immediately responded to the same. However, the investigating officer of the case, visited the factory of the petitioner and entered into the premises along with police officials without any document/search warrant from the Court of Law and forcibly seized the entire machinery and articles from the factory and also sealed the gate of the petitioner company’s factory. The seized/finished pan-masala was worth more than one crore and was lying in the production hall, to be sent for packaging. Such pan-masala contains highly hygroscopic substance like katha, which attract moisture and exposure to such moisture has caused huge loss to the articles. Challenging the aforesaid search and seizure, a writ petition was preferred contending that the Maharashtra Police had no jurisdiction and power to seize as the petitioner had not contravened any law in Solapur, Maharashtra and had due license to produce pan-masala given by the appropriate authority. Further, the company was not named as accused in the FIR either.
It was argued by the petitioner that such search and seizure had been made in utter disregard to the prescribed procedure under Section 102 CrPC and police authority has no power to seize such property in view of the provision of Section 30(2) of the FSS Act, which is a special Act. Further, it has been submitted that even if Rajanigandha pan-masala, if found in possession of someone in Solapur at Maharashtra, manufactured lawfully in the factory of the petitioner at Guwahati, could not be stopped and sealed by the investigating officer of Solapur Police Station, as such production was not made in Maharashtra. The petitioner also contended that seizure of factory was not required for investigation of an offence arising out of contravention of provision of the FSS Act, as the factory and the machinery at Guwahati were not concerned with distribution, sale or storage of pan-masala in Maharashtra. Thus, the petitioner submitted that it was entitled to compensation.
Per contra, the respondent relied upon an affidavit they had filed to submit that there had been no illegality while conducting search and seizure as there was nothing to reflect that the petitioner company was manufacturing its product strictly in accordance with the provisions of the Act and Regulations. It was further contended that the product manufactured by the petitioner company was found to be sold and stored in Maharashtra, which was prohibited under the notification issued under Section 30(2)(a) of the FSS Act.
The petitioner stated that a notification/order of prohibition issued at Maharashtra could not lead to any reasonable adverse inference against the lawful manufacturing of Rajanigandha pan-masala in Guwahati. The petitioner further contended that it cannot exercise any control over sales and purchase after it is sold to the purchaser.
The court found the licence issued to the petitioner company valid and stated that they were authorized to manufacture and sell pan-masala. Further, it also found that there was no standing prohibition for manufacturing of pan-masala in the State of Assam under the competent authority. The court then opined upon the FIR lodged in the case. It stated that “The FIR has been registered on the basis of the prohibition issued by the Commissioner of Food and Safety, in Maharashtra. It transpires that such a notification that was issued under Section 30(2) by the Commissioner (FSS) for a period of one year and that being so, the validity of which has already been expired in July, 2020 but the FIR has been registered on 06.12.2021. Validity of such FIR itself is a questionable, whereas on the basis of such FIR the I/O has continued his investigation…The police officials who lodged the FIR, has not indicated the involvement of any other person in the business of said accused person (not even the present petitioner).”
The lack of any order of the court for the search and seizure caused the court to come to the conclusion that the respondent had acted without any authorization. Respondent also failed to bring on record as to how jurisdiction was assumed or how the FIR named accused has direct dealings with the present petitioner. Further, nothing was brought on record regarding the compliance of Section 102. At the same time, the court recognised that dealing of articles such as pan-masala were covered under the special law of FSS Act, which, due to being a special law, as per Section 4(2) of the CrPC, had an overriding effect on the provisions of the CrPC. The court quoted the judgement of Christy Fried Gram Industry v. State of Karnataka to establish the same.
Section 41 of the FSS Act prescribes the Food and Safety Officer the power to search and seizure of food articles. Section 42 prescribes that the Food and Safety Officer is responsible for inspection of food business, drawing samples and sending the same to the food analyst for analysis and thereafter can launch the prosecution in appropriate case. The court stated that these provisions indicate that only the Food Inspector can carry out such investigation.
In view of the same, the court held that the I/O did not have the jurisdiction to investigate the matter. The court held that “The fundamental rights of the petitioner to carry out the lawful business has been hampered for such illegal conduct on the part of the investigating officer…Impugned seizure list prepared is hereby quashed and set aside with a direction to release all the seized article to the petitioner forthwith, if not released yet…Petition is allowed with cost of Rs. 2 lakhs to be paid by the respondent no.2 to the petitioner company, with a liberty to the petitioner to prefer claim damages before the appropriate forum.”
LEGAL NEWS
Recently, the Madras High Court in the case of S. Manjula v. G. Shoba and others upheld the cancellation of a gift deed after noting that the possession was not handed over and that the deed was not acted upon by the parties. The bench of Justice AA Nakkiran agreed with the finding of the court below that the possession was not handed over and the gift deed was not acted upon hence, it was not a valid gift deed.
In this case the appellant is the plaintiff in the original suit. The 4th defendant is her mother and defendants 1-3 are her sisters. The suit property and other properties belonged to the 4th defendant. The 4th defendant had gifted the suit property, by a Registered Gift Deed dated, 13.06.2012, in favour of the plaintiff and the defendants 1 to 3 and since then, they have been in possession of the same and they became the absolute owners of the same. The plaintiff contended that she and the defendants 1 to 3 had sold 0.37 cents of land out of the total 2.37, by a sale deed, and paid the amount to the 4th defendant for her needs. The 4th defendant was also an attestor in the sale deed. Subsequently, the plaintiff came to know that the 4th defendant had executed a deed for cancellation of the Gift Deed. It is contended by the plaintiff that the same is not sustained in law. The gift deed is an irrevocable and unconditional one. Even as per GO.Ms.No.139, dated 25.07.2007 and the decision of Madras High Court reported in D.Mohan and another v. Sub Registrar, Chennai and others, the Sub-Registrars have been directed not to cancel any document without consent of other parties. The plaintiff submitted that since the 4th respondent was making arrangements to alienate the property, the suit was filed for declaration that the deed of cancellation of Gift Deed is null and void and not binding on the plaintiff and the defendants 1-3. The plaintiff also sought for a permanent injunction against the 4th defendant and for partition of the suit property into 4 equal shares and to allot one such share to the plaintiff. The 4th defendant, on the other hand, denied that the plaintiff and the defendants 1-3 had obtained possession through the Gift Deed. The 4th defendant submitted that the original document were still retained by her with the consent and concurrence of the plaintiff and the defendants 1 to 3. The 4th defendant argued that the Gift Deed was not executed out of her own volition and that the plaintiff had persuaded her to execute the settlement deed in favour of herself and defendants 1-3 by giving false assurance to take care of her. The plaintiff’s actions were adverse to the interest of the defendants 1 to 3. The defendant also submitted that the revenue records and the assessment were still in her name and that the Settlement Deed was a sham and nominal document. It was also submitted that the Cancellation Deed was executed with the consent and concurrence of the plaintiff and the defendants 1-3. She further submitted that she was still in the possession and enjoyment of the suit property. Further, the Gift Deed was not acted upon. Thus, the contention of the plaintiff that she and the defendants 1-3 had become absolute owners of the property and that the 4th defendant had lost her right by virtue of execution of gift deed was not true. Thus, the suit was liable to be dismissed.
The court, after consideration was of the opinion that the decision of the court below did not warrant any interference and hence dismissed the appeal.
LEGAL NEWS
In the case of BEML Ltd. v. Prakash Parcel Services Ltd. the High Court of Karnataka has held that a subsequent Section 8 application would be non-maintainable when the order of the arbitrator accepting objection to its jurisdiction was not challenged.
The Division Bench of Justice Alok Aradhe and Justice J.M. Khazi held that once the order of the arbitrator terminating the arbitral proceedings has attained finality, it would not be open for a party who did not lay any challenge to the order to contend that the dispute once again be referred to arbitration.
In this case the parties entered into an agreement dated 25.06.2008. The agreement had an arbitration clause. A dispute arose between the parties which was referred to a sole arbitrator. Thereafter, the respondent filed an application regarding under Section 16 of the A&C Act. The arbitrator vide order dated 07.11.2016, accepted the respondent’s objection to its jurisdiction and permitted the respondent to take recourse to appropriate legal remedy. The appellant did not challenge the order of the arbitrator.
Consequently, the respondent filed a Civil Suit for recovery of the amount in question. The appellant filed an application under Section 8 of the A&C Act to refer the parties to arbitration. The trial court rejected the application on the ground that the appellant did not challenge the order of the arbitrator, therefore, the parties cannot be referred to arbitration. The appellant filed an appeal against the order of the trial Court.
The appellant challenged the order of the trial court on the grounds that the parties admittedly have an arbitration clause between themselves. The provisions of Section 8 are mandatory and the parties must be referred to arbitration when there exists an arbitration agreement between them.
The Court observed that the provisions of Section 8 of the A&C Act are mandatory and make it obligatory for the Court to refer the parties to arbitration in terms of the arbitration agreement.
However, the appellant not having challenged the order of the arbitrator by which it has held that it has no jurisdiction to adjudicate the dispute has waived its right to contend that the dispute should be referred to arbitration.
The Court held that once the order of the arbitrator terminating the arbitral proceedings has attained finality, it would not be open for a party who did not lay any challenge to the order to contend that the dispute once again be referred to arbitration.
Accordingly, appeal was dismissed by the Court.
LEGAL NEWS
In the case of Udhaya Kumar v. The State and others while quashing the criminal proceedings against a person who was arrayed as an accused during a raid of a Massage centre which was allegedly a brothel, the Madras High Court bench of Justice N Sathish Kumar observed that merely because the petitioner was in the place, he could not be fastened with penal consequences.
In the present case, the allegation against the petitioner was that he was present along with the sex workers at the time when the police party raided a massage centre. He was thus apprehended and arrayed as an accused. He was charged with offences punishable under Sections 3(2) a, 4(1), 5(1)a and 5(1)d of the Immoral Traffic (Prevention) Act, 1956 and 370A (2) of the Indian Penal Code.
It was contended by the petitioner that even if the allegations were to be taken together, it would not attract the offences as alleged. He submitted that doing sex work was not illegal and it was running a brothel which was illegal. He further submitted that the sex workers were engaged in prostitution of their own volition and without any inducement, force, or coercion and therefore no prosecution was warranted under Section 370 of the Indian Penal Code.
After going through the documents, the court noticed that the First Information Report does not reveal the presence of the petitioner at the alleged place. Even as per the submission of the respondent, the brothel was run by Accused 1 and not the present petitioner. Further, the petitioner was not shown as an accused in the FIR but only in the Alteration report. Even if the reports were to be considered, it would not show any offence committed by the petitioner except his presence at the place.
The bench relied on the decision of Budhadev Karmaskar v. The State of West Bengal & Ors., wherein the Apex Court had held that whenever any brothel is raided, sex workers should not be arrested or penalised or harassed or victimised and it is only the running of the brothel, which is unlawful.
The court opined that since there was no evidence to show that there was coercion by the petitioner on the sex workers to commit the act, he could not be penalised for his mere presence at the place. The court reiterated that as per the decision of the Supreme Court in the above case, any sex worker, being an adult and indulging in a sexual act with his/her own consent, the police authorities should refrain from taking action against such individuals. The act of the petitioner would not amount to an act of pressurizing the sex workers to commit acts against their volition.
Therefore, the petition was allowed by the court and the court quashed proceedings against the petitioner.
In the case of Dhanpreet Singh and Anr v. State of Punjab, the Punjab and Haryana High Court, while dealing with a matter wherein usage of non-updated machinery led to the death of two labourers, held that provision of Factories Act, 1948 are not in substitution but are supplemental to any other Act; and thus they do not override the provisions of the Indian Penal Code.
The bench comprising Justice Vinod S. Bhardwaj observed that perusal of statement of objects and reasons of the Factories Act shows that the provisions are concerned with the working conditions and protection of the workers but the said Act does not prohibit operation of any other statute.
In this case, a petition was preferred by two sons of a factory owner, seeking to set aside an order framing charges against him under Sections 304-A, 337 and 338 IPC. The allegation in the FIR was not that the petitioners did not prescribe the safety precautions mandated by the Chief Inspector of Factories, but that the machinery installed had outlived its life and even though it was brought to the notice of the management, no action was taken thus risking the lives of the labours.
The Petitioners, while denying any responsibility in the matter, also contended that the offence in question would be governed by a special statute, viz. The Factories Act, 1948, as the field is occupied by a special statute and as such proceedings under the general provisions of Indian Penal Code could not have been instituted.
The Court observed that the petitioners failed to point out any provision of law that merely because an offence also happens to be in violation of a special statute, the offence punishable under the Indian Penal Code would not get attracted, despite, the necessary ingredients being satisfied. It observed that “As a matter of fact, Section 119 of the Factories Act has been given an overriding effect with anything inconsistent contained in the Contract Labour (Regulation and Abolition) Act 1970 or any other law for the time being in force. Learned counsel has failed to point out as to how the provisions of Section 304-A IPC would be inconsistent with the provisions contained under the Factories Act, 1948. The provision of the Factories Act, 1948 are not in substitution of any other Act but are supplemental to the same. It does not override the Indian Penal Code or laws other than those specified above.“
Nevertheless, the Court was of the view that the petitioners cannot be forced to undergo a criminal trial since no material establishing their involvement in the operations of the factory has been placed on record. Further, there was no testimony of any expert establishing that the machinery deployed was outdated or was sub-standard having outlived its life. A criminal liability cannot be fastened against an accused merely on account of an incident. Culpable liability arises on account of the said incident having occurred as a result of rashness or negligence on the part of an accused.
Accordingly, the present petition was allowed for the reason that the Revisional Court has not properly appreciated the evidence on record and its admissibility in law along with necessary ingredients required for prosecuting a person for the instant offence.
In the case of Kulvinder Singh Kohli V. State of Nct of Delhi & Ors, the Delhi High Court has observed that summons or notices under Section 160 of the Code of Criminal Procedure can be issued by a Police Officer in order to set investigation into motion and that registration of FIR is must for the same.
Justice Chandra Dhari Singh made the said observation while answering the question as to on what stage a notice under Section 160 of Code can be issued. The Court observed that without registration of FIR, an investigation cannot be said to have been initiated. Furthermore, it said that even for an enquiry to be held legal and valid, the Police Officer has to act in accordance with provisions of the CrPC and he may not act beyond his powers by conducting a preliminary enquiry without making a report to a Magistrate.
“The provision says that a Police Officer making investigation may require attendance of “any person being within the limits of his own or any adjoining station”, thereby, clearly and unequivocally setting limits to the jurisdiction within which the police officer is permitted to act,” the Court said.
A division bench of Chief Justice Ritu Raj Awasthi and Justice Ashok S Kinagi of the Karnataka High Court in the case of Rakesh P v. State of Karnataka asked the state government to respond to the allegations relating to grant of permanent licenses for installing loudspeakers in Mosques.
The Court also asked the state as to under what provision licences for playing loudspeakers, by 16 mosques (which are before the court), can be granted and which authority is authorised and under what law and for what duration, are such permissions being granted.
The bench during the hearing of a batch of petition orally asked the state government to respond on the larger issue of under what provisions licences were granted to play the loudspeakers permanently under the Noise Pollution Rules. The bench referred to its previous order dated November 16, 2021, wherein it referred to Rule 5(3) of the Noise Pollution rules which restricts the use of loud speakers/ public address system (and sound producing instruments). It authorises the State Government to permit use of loudspeakers and the likes during night hours (between 10.00 p.m. to 12.00 midnight) on or during any cultural, religious or festive occasion of a limited duration not exceeding fifteen days in all during a calendar year.
The bench said that there should be some material placed on record by the petitioners that such permissions are being issued. The government advocate also filed a status report informing that the respondents (mosques) who were playing loudspeakers without licences have stopped the loudspeaker and removed the loudspeakers. Time was also sought by the government counsel to respond to the arguments advanced by the petitioners. Accordingly the court posted the matter for further hearing in the next week.
The Supreme Court bench of Justices MR Shah and Aniruddha Bose in the case of Swaminathan Kunchu Acharya v. State of Gujarat observed that income, age, bigger family cannot be the sole criteria to tilt balance in child custody cases, while granting custody of five years boy who lost his parents due to covid to his paternal grandfather.
In this case, the paternal grandfather of the boy had approached the High Court by filing a writ petition (habeas corpus) alleging that the boy’s maternal aunt is not allowing them to enter the house of his son and daughter in law and that he is not even permitted to meet the boy. While disposing of the petition, the High Court gave the custody to the maternal aunt. Aggrieved with this, the grandfather approached the Supreme Court.
Before the Apex Court, the grandfather contended that merely because he is aged 71 years and his wife is aged 63 years, it cannot be presumed that the paternal grandparents would not be in a position to take better care of the grandson. The respondent contended that the maternal aunt would be in a better position to look after and take care of the boy than the appellant – paternal grandfather.
Agreeing with the submissions made by the grandfather, the court observed that “There cannot be any presumption that the maternal aunt being unmarried having an independent income; younger than the paternal grandparents and having a bigger family would take better care than the paternal grandparents. In our society still the paternal grandparents would always take better care of their grandson. One should not doubt the capacity and/or ability of the paternal grandparents to take care of their grandson. It is said that the grandparents love the interest rather than the principle. Emotionally also the grandparents will always take care better care of their grandson. Grand Parents are more attached emotionally with grandchildren.”
The order of the High Court was set aside by the bench and it observed that the present order shall subject to the final outcome of the proceedings under Section 7 of the Guardians and Wards Act, pending before the competent court.
“We request both, paternal grandparents and maternal aunt & her family (on maternal side) to act jointly and cordially and have cordial relations which shall be in the larger interest of the minor . We request to all the concerned to forget bitterness and forget the past and look in the future taking into consideration the future of the minor, who unfortunately, has lost his parents at the age of five years only. With this hope and trust, we close the present proceedings.”, the court observed while disposing the appeal.
The Allahabad High Court in the case of Jagveer v. State of U.P. and Another has observed that once the Magistrate has taken cognizance for offences under certain sections/offences, it has no power to review its own order for dropping section(s) from the cognizance order.
It was observed by the Bench of Justice Raj Beer Singh that as it upheld an order of the magistrate rejecting an application filed by the accused to withdraw cognizance order in connection with one of the offences of the charge sheet (on which the magistrate had earlier taken cognizance).
Essentially, an FIR was lodged against the accused under Sections 147, 323, 324, 504 and 506 of the Indian Penal Code and during the investigation, Section 308 of the Indian Penal Code was also added. After the investigation, police submitted charge sheet for the offences under Sections 147, 323, 324, 325, 308, 504, 506 of the Indian Penal Code in the Court of C.J.M., Saharanpur and accordingly cognizance was taken. Thereafter, the accused persons moved an application before the Magistrate alleging that no case under Section 308 of the Indian Penal Code is made out, hence cognizance under section 308 of the Indian Penal Code be withdrawn. Said application was rejected by the C.J.M. Saharanpur. This order was upheld by the Sessions Judge, Saharanpur in revision.
Now, he had moved the High Court with the instant Article 227 Plea wherein he argued that none of the injuries inflicted on the injured person was dangerous to his life, but despite that, the C.J.M. Saharanpur had taken cognizance under Section 308 of the Indian Penal Code, besides the other sections of IPC.
The Court observed that the scope of judicial review in such matters where the orders of Courts below are assailed before the High Court in a writ petition under Article 226/227 of the Constitution is very limited. The Court observed that “…the power under article 227 of the Constitution is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. This Power is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence.”
It stated that once the Magistrate had taken cognizance for offences under section 147/323/324/325/504/506/308 IPC, it had no power to review its own order for dropping the section 308 IPC from the cognizance. “Section 308 IPC is a Session triable case and petitioner would have opportunity before the Sessions Court at the time of charge to raise the plea that no offence under section 308 IPC is made out…As observed earlier, in exercise of its extraordinary powers under Article 227 of the Constitution, this Court cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of court below,” the Court further noted while dismissing the plea.
In the case of Deputy Commissioner Excise v. M/s 2 Bandits Restaurant the Delhi High Court has observed that unless the license of a liquor vend is shown to fall foul of any statutory provision or otherwise established to be in violation of any rule or regulation, the same cannot possibly merit cancellation, merely because “public sentiment” may be opposed to its location. Justice Yashwant Varma further added that public opinion or sentiment is not a factor relevant or germane under the Delhi Excise Act for locating a liquor vend.
In this case, the Court was dealing with a petition preferred by the Department of Excise assailing the order of 28 June 2019 passed by the Financial Commissioner. The impugned order restored the excise license which was granted to the respondent, M/S 2 Bandits Restaurant, setting aside an order in terms of which the same had been cancelled.
The Court however did not agree with the submission after observing that the Department acting as a public authority is obliged to act fairly and surely not whimsically. It was observed by the court that “The expression “for any reason whatsoever” cannot be recognised as empowering the respondent to cancel a license on grounds which are not contemplated under the Act. The provisions of Section 16 cannot be viewed as granting the Department of Excise a carte blanche to cancel a license validly granted in terms of the provisions of the Act and Rules framed thereunder on a ground which may not be legally sustainable or not contemplated under the Act“. Furthermore, the Court noted that the Financial Commissioner had noted that the solitary ground on which the license was sought to be cancelled was the issue of “public sentiment” and an “apprehension of disturbance of law and order”.
In this backdrop, it was observed by the Court that “It becomes pertinent to note that the grant of license under the Act and Rules framed thereunder is not subject to “public sentiment”. The apprehension of a law and order situation is clearly a different issue altogether and which must necessarily be looked into by the concerned police authorities. Unless the license of the liquor vend is shown to fall foul of any statutory provision or otherwise established to be in violation of any rule or regulation, the same cannot possibly merit cancellation merely because “public sentiment” may be opposed to its location.” “Public opinion or sentiment is not a factor relevant or germane under the Act for locating a liquor vend. While the Court is aware that principles of res extra commercium apply to trade in liquor, that would not justify the cancellation of a license validly granted and which is not established to be in violation of the law.”
Henceforth, with the said observations, the plea was dismissed.
In the case of Sumit Deb v. Joy Deb and another the Tripura High Court Bench of Justice Arindam Lodh held has made it clear that a court is required to issue notice to the accused and hear him before condoning the delay in filing a complaint under Section 138 of the Negotiable Instruments Act. It was observed by the bench that “…under Section 138 of the NI Act, if the original complaint is filed after the expiry of the statutory period, then, in such cases, before condoning the delay, according to the proviso to Section 142 (b) of the NI Act, the accused shall be given a notice along with a copy of the application for condonation of delay.”
In this case, the Court was hearing an appeal filed challenging a 2020 judgment passed by learned Chief Judicial Magistrate, Agartala, West Tripura, in connection with a NI Act Case. In its judgment, the Court acquitted the accused-respondent had been acquitted from the charges leveled against him under Section 138 of the Negotiable Instrument Act, 1881 and dismissed the application filed by the complainant-appellant. The trial Court dismissed the case of the appellant-complainant with the observation that in the filing of the complaint, there was a delay of 10 days and the matter was proceeded without condoning the delay as apparent on the face of the record. Consequently, the respondent/accused was acquitted.
At the outset, the Court noted that if a complaint is filed beyond the statutory period, as prescribed under Section 138 of the NI Act, then, the complainant must satisfy the court that he had sufficient cause for not making the complaint within such prescribed period, i.e., within one month of the date the cause of action arises under the proviso (c) of Section 138 of the NI Act. The Court also noted that in terms of the proviso of clause (b) of sub-section (1) of Section 142 of the NI Act, the court can take cognizance only when the complainant would be able to satisfy the court that he had sufficient cause for not making the complaint within such one month.
Regarding the question as to whether the accused should be heard before condoning the delay, the Court took into account the case of Sankar Choudhury v. State of Tripura and Another, (2019) 2 TLR 134 and observed that “So, to avail the benefit of proviso to Section 142(b) of the NI Act the complainant is mandated to file an application for condonation of delay explaining sufficient and satisfactory reasons for such delay since the said proviso appended therein is substantive and not only procedural. On receipt of such condonation application, the Court has to issue notice on it along with a copy of the complaint and dispose of the same after giving the accused a reasonable opportunity of being heard. The Court would pass an appropriate order to the merits of the application of condonation of delay at its discretion. Without exhausting this stage, cognizance shall not be taken.”
In the above stated case, the Court noted that the complaint was filed before the court after 10 days of a statutory period of 30 days without filing an application for condonation of delay, and no specific order was passed condoning the said delay.
In view of this, the Court opined that the Court had taken the cognizance wrongly, and further proceeding with the trial had caused serious prejudice to both the complainant and the accused from rendering equitable justice to them. As a result of this, the impugned judgment of acquittal was set aside and the matter was remitted to the court of the learned Chief Judicial Magistrate, Agartala, West Tripura to proceed afresh.
A division bench of Chief Justice Ritu Raj Awasthi and Justice Ashok S Kinagi of the Karnataka High Court in the case of Ramesh Naik L v. State of Karnataka directed the State government to place on record measures taken by authorities to implement the Animal Birth Control (Dogs) Rules, 2001, which prescribes the methodology for Street/ Stray dog population management. While issuing the notice, the court directed the State government to file its statement of objections in ten days time.
The direction was given while hearing a public interest litigation filed by Advocate Ramesh Naik L. In his petition, Naik stated that Rule 6 and 7 of the Animal Birth Control (Dogs) Rules, 2001, prescribes the methodology for Street/Stray dog population management, ensuring rabies eradication and reduction in man-dog conflict based on scientific studies and recommendations of the World Health Organisation. However, inaction on the part of state authorities in discharging their mandatory duty towards Street/ Stray dogs resulted in the violation of aforesaid provisions of the said Rule. The plea also cites two unfortunate incidents related to Street/Stray dogs. One being a case of Street/Stray dogs attack on 4 year old baby girl, who died, in Athani Taluk of Belagavi District and other being a case of Adi Narayana, grand-son of politician-businessman Adi Keshavalu, alleged to have ran his Audi car over Street/Stray dog sleeping on a pavement in Jayanagara area of Bangalore. The plea further states that “As times move on, man becomes more concerned about his security. Lot of emphasis and stress has been laid that due to Street/Stray dogs, there has been threat to life, health, movement of human beings. On the other hand, when any incident of human-dogs conflict occurs and complaints being made to concerned authorities, Street/Stray dogs are being annihilated without any justifiable reasons.” The plea prays for issuance of directions to the state authorities to carry out their obligations as prescribed in Rule 6 and 7 of the Animal Birth Control (Dogs) Rules, 2001 time to time, within the jurisdiction of all local bodies in the State of Karnataka
In the case of C. Parthasarthy v. Director of Enforcement, the Telangana High Court bench of Justice K. Lakshman ruled that the accused under the Prevention of Money Laundering Act, 2002 is entitled to statutory bail under Section 167(2) of CrPC if the charge sheet is not submitted in terms of Section 173(2) of CrPC without completion of investigation.
It held that “At the cost of repetition, this Court holds that the complaint dated 19.03.2022 was not a final complaint based on which cognizance could have been taken. A complaint/report cannot be treated as final report unless the investigation is completed, In the present case, the investigation is admittedly not completed and the statutory period of sixty days expired on 21.03.2022. Therefore, in the absence of complete investigation and absence of filing a final complaint, the Petitioner is entitled for statutory bail under Section 167(2) of the Cr.P.C.”
In this case, the Petitioner is the Chairman and Managing Director of M/s Karvy Stock Broking Ltd. (KSBL) The Respondent authority had registered the offence of money laundering under the Prevention of Money Laundering Act, 2002 (PMLA) against KSBL. The allegations against KSBL and the Petitioner included diversion of large-scale clients’ funds through shell companies which resulted in huge losses to the investors. Various FIRs were registered against the petitioner and he was arrested and produced before the Metropolitan Sessions Judge cum Special Court (Designated Court) on 20.01.2022 and on the same day the Petitioner was remanded to judicial custody. The Petitioner had been in jail since 20.01.2022. According to the Petitioner, the offences alleged against him are not punishable for a term not less than 10 years, death, life imprisonment. Therefore, he was entitled for statutory bail under Section 167(2) of CrPC as the investigation was not completed within 60 days.
According to the Petitioner, the period of 60 days expired on 21.03.2022. Therefore, he filed an application for default bail. But the said application was dismissed as the complaint/charge sheet was filed by the Respondent on 19.03.2022. However, on 31.03.2022, another application under Section 167 was filed by the Respondent seeking extension of remand. The application was filed seeking further custody of the Petitioner to complete the investigation. The said application was allowed and the custody of the Petitioner was extended till 13.04.2022. Subsequently, another application on 13.04.2022 was filed by Respondent seeking extension of remand. The remand was extended till 27.04.2022.
The issue in this case was whether the Petitioner is entitled for statutory bail under Section 167(2) of the Cr.P.C.
Justice K. Lakshman relied on many decisions to observe that Section 167(2) of the Cr.P.C. obligates the investigative agencies to complete the investigation in a time bound manner. It observed that “It was in this backdrop that Section 167(2) was enacted within the present day CrPC, providing for time-limits on the period of remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible right to bail. As is evident from the recommendations of the Law Commission mentioned supra, the intent of the legislature was to balance the need for sufficient time-limits to complete the investigation with the need to protect the civil liberties of the accused. Section 167(2) provides for a clear mandate that the investigative agency must collect the required evidence within the prescribed time period, failing which the accused can no longer be detained. This ensures that the investigating officers are compelled to act swiftly and efficiently without misusing the prospect of further remand. This also ensures that the court takes cognizance of the case without any undue delay from the date of giving information of the offence, so that society at large does not lose faith and develop cynicism towards the criminal justice system.”
Thus, it was clear that a charge sheet can be filed only after the completion of investigation. Investigation is said to be completed if sufficient material is collected by the Investigating Officer based on which cognizance can be taken under Section 167 of the Cr.P.C.
In this case, if complaint dated 19.03.2022 was filed after completion of investigation, the Designated Court would have taken cognizance of the offence. Not taking cognizance of the offence when complaint dated 19.03.2022 was already filed indicates that investigation is incomplete. Therefore, complaint dated 19.03.2022 cannot be treated as a complaint/charge sheet under Section 173(2) of the Cr.P.C.
The court observed that as has already been pointed out, a police report as defined in section 2(r) of the Code can only be filed “as soon as the investigation is completed”. If it is not complete; no such report can be filed. When no report is forwarded as required by the Code, the Magistrate cannot take cognizance…The question thus emerges naturally is, whether the Magistrate can take cognizance on the admittedly “incomplete charge-sheet” forwarded by the police. The answer stubbornly and admittedly must be in the negative, because the investigation is yet incomplete and the “police report” yet remains to be filed. Thus, the filing of the incomplete charge-sheet cannot circumvent the provisions of sub-section (2) of section 173 of the Code and incomplete report or an incomplete charge-sheet with whatsoever expression it may be called does not meet the obligatory requirements of law.
Justice K. Lakshman reiterated that the complaint dated 19.03.2022 was not a final complaint. Therefore, the Petitioner was entitled to statutory bail under Section 167(2). The Petitioner cannot be remanded under Section 309 of CrPC as it comes into operation only after cognizance of the offence was taken. Thus, the Criminal petition was allowed and it was held that the Petitioner was entitled for statutory bail under Section 167(2) of CrPC.
The Supreme Court vacation bench comprising Justice BR Gavai and Justice Hima Kohli in the case of Ardhendu Kumar Das v. State of Odisha dismissed two petitions filed against the construction and redevelopment works undertaken by the Odisha Government at the iconic Shree Jagannath Temple premises at Puri.
Terming the petitions as frivolous and contrary to public interest, the Court dismissed them with cost of Rupees one lakh each. The bench observed that “We highly deprecate practice of filing such frivolous petitions. They are nothing but abuse of process of law. They encroach upon a valuable judicial time which could be otherwise utilized for considering genuine issues. It is high time that such socalled public interest litigations are nipped in the bud so that the developmental activities in the larger public interest are not stalled”. It further held that the activities undertaken by the State are necessary in the larger public interest and are in tune with the Ancient Monuments and Archeological Sites and Remains Act, 1958 and also with the earlier directions issued by the Supreme Court in relation to the administration of the temple. “The construction is being carried out for the purpose of providing basic and essential amenities like toilets for men and women, cloak rooms, electricity rooms etc. These are the basic facilities which are necessary for the convenience of the devotees at large. As already discussed hereinabove, the legislative intent appears to be clear. The legislature has deliberately excluded four categories from the definition of “construction”. The purpose behind it appears to be that the repairs and renovation of the buildings, which are existing and the constructions which are necessary for providing basic facilities like drainage, toilets, water supply and distribution of electricity should be kept out of the rigour of requirement of statutory permissions:”
The petitioner raised an argument that such permission can be given only to an individual residing in the area for construction or renovation of an existing structure and not for the State to provide facilities for the public. Rejecting this argument, the bench observed that “If an individual person can construct a toilet in a prohibited area; can the State be denied to do so, when the State finds it necessary to do it in the larger public interest for providing basic facilities to the lakhs of devotees visiting the shrine? The answer is an emphatic ‘no'”.
The Court said that a hue and cry was made that construction was against ASI report, however note of the Director General would falsify this position. The High Court had recorded the Advocate General’s submission that no archeological remains are missed out or damaged.
The Kerala High Court remarked that the offence of rape should be made gender-neutral while adjudicating upon a matrimonial dispute moved by a divorced couple over custody of their child.
Justice A Muhamed Mustaque made the observation when during the course of the case when the party brought up the fact that the husband in the case had once been accused in a rape case. However, the husband’s counsel argued that he was currently released on bail and that the said allegation was based on unsubstantiated accusations of sex under a false promise of marriage.
At this juncture, the Court made an oral remark on his concern about Section 376 (punishment for rape) of the Indian Penal Code not being gender-neutral. It observed that “Section 376 is not a gender-neutral provision. If a woman tricks a man under false promise of marriage, she can’t be prosecuted. But a man can be prosecuted for the same offence. What kind of law is this? It should be gender-neutral” “It is to be remembered that the statutory provisions of the offence of rape as understood in the Indian Penal Code, is not gender-neutral. A woman, on a false promise of marrying and having a sexual relationship with a man, with the consent of the latter obtained on such false promise, cannot be punished for rape. However, a man on a false promise of marrying a woman and having a sexual relationship with the woman would lead to the prosecution’s case of rape.”
In the case of MOHAMAD ILIYAS MOHAMAD BILAL KAPADIYA v. THE STATE OF GUJARAT, opining that for invoking the provisions of the draconian Gujarat Control of Terrorism and Organised Crime Act, 2015, it is necessary that more than one charge-sheet must have been filed in respect of an activity which can be said to have been undertaken by one as a member of an organised crime syndicate on behalf of such syndicate, the Supreme Court bench of Justices B. R. Gavai and Hima Kohli released the petitioner on bail.
The bench was hearing an SLP against the January decision of the Gujarat High Court rejecting the application filed by the petitioner/applicant for grant of bail in connection with a 2021 FIR for offence under Sections 3(1)(2), 3(2) and 3(4) of the Act.
It was recorded by the bench that, “We have heard Mr. Mukul Rohatgi learned senior counsel for the petitioner/applicant and Ms. Deepanwita Priyanka, learned counsel appearing for the respondent-State. Mr. Rohatgi submits that for invoking the provisions of the Gujarat Control of Terrorism and Organised Crime Act, 2015 (hereinafter referred to as “the GCTOC Act”) which is analogous with the Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as “MCOCA”), two requirements have to be satisfied. The first one is that an activity undertaken is either singly or jointly as a member of an organized crime syndicate or on behalf of such a crime syndicate. The second one is that in respect of such an activity, more than one charge-sheet must have been filed in the preceding period of last 10 years. Mr. Rohatgi submits that in the present case, the second requirement is not satisfied. He submits that in the Chart wherein all the crimes registered against the petitioner/applicant have been listed, it could be seen that only FIR No.64 of 2021 dated 26th January, 2021 is in respect of an activity committed by two members of the syndicate. He therefore submits that requirement of filing of more than one chargesheets is not satisfied in the present case. Mr. Rohagti further submits that the petitioner/applicant has already been released on bail in respect of other FIRs. Only on account of him being implicated in FIR No. 66 of 2021 under GCTOC Act, he is deprived of his liberty. Mr. Rohatgi further submits that unless there is some act in respect of which an offence is registered, the provisions of the GCTOC Act cannot be invoked”
The bench noted that Ms. Deepanwita Priyanka on the contrary submits that all the offences alleged in the FIRs which are given in the Chart, are directly or indirectly committed for the benefit of the crime syndicate of which the petitioner/applicant is a member.
The bench observed, “Undisputedly, the perusal of the Chart would reveal that only one offence, i.e., FIR No. 64 of 2021 would show that it has been committed by seven accused out of which two are the members of the syndicate. In respect of offences at Serial Nos. 1 to 4 in the Chart, no members of the syndicate are arrayed as accused” The bench proceeded to state that it is the Court’s the prima facie view that for invoking the provisions of the GCTOC Act, the following conditions will have to be fulfilled:
The bench then noted, “Undisputedly, in the present case only one charge-sheet was filed in respect of an activity which can be said to have been undertaken by the petitioner/applicant as a member of an organised crime syndicate on behalf of such syndicate.”
Taking into consideration this aspect of the matter and further that the petitioner/applicant has already been directed to be released on bail in respect of crime registered at Serial Nos. 1 to 5, the bench was inclined to allow the present Special Leave petition. “The petitioner/applicant is, therefore, directed to be released on bail on such terms and conditions as found appropriate by the Trial Court. In addition, the following conditions were imposed on the petitioner:
In the recent case of Pragya Higher Secondary School v. National Institute of Open Schooling, allowing a writ petition filed by a school, the Supreme Court bench of Justices S. Abdul Nazeer and PS Narasimha observed that the National Institute of Open Schooling (NIOS) has a duty to fix examination centres in a manner to enable students to appear in the examination with certainty and ease. The bench observed that “It is for NIOS to go an extra mile rather than expecting the students to walk long distances from villages and towns to take the examination.”
The writ petition was filed by Pragya Higher Secondary School seeking a direction from the National Institute of Open Schooling to fix examination centres for open schooling students at a reasonable distance from their study centres, referred to as Accredited Institutions. They had also sought a direction to NIOS to evolve a policy of distance criteria while fixing the examination centres for the Public Examinations conducted by NIOS. The school contended that despite the presence of either an NIOS Education Centre or other recognized institution existing within a maximum distance of 10 kilometers from the AIs, the students have to travel to the identified examination centre in Category A to Category E as provided in the Guidelines.
The court observed that the need for holding an examination within a distance of a maximum of 10 kilometers seems reasonable. It stated that “It is documented that a substantial number of students resorting to open schooling invariably come from rural areas. Most of these students come from poor strata of the society, depend on unreliable public transport and in all probability are employed for their livelihood. It is not difficult to imagine the consequences of inaccessible examination centres for such students. There is yet another factor. The primary, secondary, or senior secondary examinations invariably involve answering multiple papers spread over a period of time. Inability to travel long distances for each examination, will only have the consequence of the student dropping out, which is the biggest challenge the Country is facing today. It is interesting to note that the New Education Policy, 2020 in Chapter 6 records the beneficial effect of reducing the burden of distance to prevent dropping outs from schools through group walks, provision of cycles etc. for the Socially and Educationally Disadvantaged groups”
It was further held by the court that fixing examination centres is a sensitive duty involving security and continuous monitoring and that integrity in the conduct of examination is as important as the education itself. It observed that “Every step must be taken to prevent cheating and copying which are antithesis to education. NIOS must have the freedom, which they have retained in Norms mentioned in Chapter-5, to identify, accept or reject an application offering to be an examination centre. While exercising that right, NIOS will also keep in mind its duty to provide accessibility of educational certification by enabling students to reach the examination centres.“
The writ petition was disposed by the court. Also, the court issued the following directions for NIOS:
The Supreme Court of India on April 11 transferred the investigation in the case of death of a minor girl in a boarding school in Uttar Pradesh, to the Central Investigation Bureau (CBI).
The Bench comprising of Justice Ajay Rastogi and Justice CT Ravikumar stated that “Let papers/documents regarding investigation be handed over to the CBI by the State of Uttar Pradesh and State of Haryana in reference to the FIR Nos.332/2020 and 635/2020 within four weeks and CBI is permitted to further investigate into the allegations made by the petitioner within further period of four weeks.”
The directions were issued in a special leave petition (Sonia v. State of Haryana and Ors.) filed against Punjab and Haryana High Court’s order refusing to transfer investigation from local police in UP and Haryana to CBI.
The present case deals with the death of a 14 years old girl who was allegedly found hanging in the classroom of her boarding school in 2020. The family of the deceased girl has alleged that its a case of rape and murder.
The Court had on 8th December last year issued notice on the case. The transfer had been sought in relation to two FIRs – one registered in UP for murder and alleged rape of minor girl (petitioner’s daughter) and second FIR in Haryana for abduction of her parents and 2 siblings.
The Petitioner (deceased girl’s mother), argued that the case involves a heinous crime of alleged rape and murder against her minor daughter followed by a continuous chain of crimes against her family members like their abduction from Noida to Haryana via Delhi. According to the girl’s family, the school’s principal called them to the school and once they reached, he along with 5 others snatched their phones so they wouldn’t take pictures or call police. They were then told that their daughter is dead and shown their daughter hanging from the roof in a classroom.
The girl’s family has alleged that they were wrongfully confined in a classroom and were forced to sign blank papers, and compelled to cremate the girl’s body without calling police or doing post mortem, under threat that if they make noise their other children studying in the same school will face similar consequences. They also alleged that the same evening they were abducted by two goons under instructions of the principal to kill them if they make noise, and were finally dropped in Haryana.
The girl’s family was aggrieved by no action on part of the police in both UP and Haryana moved the High Court seeking transfer of investigation but the same wasn’t granted. The petitioner has argued that the Principal and other accused committed a cruel, barbaric and degrading act by not informing either police and any doctor to save life of the minor girl and kept the body hanging in the classroom.
“The crime that started with alleged rape and then murder of a minor girl and which was followed by other offences like 495, 120B, 380, 365, 506 IPC against mother, father, minor sister and brother of deceased girl,” the petition states
The petitioner has sought for investigation by CBI or some other independent agencies raising following questions of law:
The transfer of investigation has been sought arguing that the series of crime involved in present case was committed within the territorial jurisdiction of three states namely, UP, Haryana and Delhi.
In a significant development in the case of Nimisha Priya, an Indian woman who is facing death sentence in Yemen for the murder of a Yemeni citizen, former Supreme Court judge Justice Kurian Joseph has agreed to lead a mediation attempt for her release.
Nimisha Priya, a nurse from Kerala, was convicted for the murder of Yemeni national Talal Abdo Mahdi in 2017 by injecting sedatives into the body. Reportedly, the motive of the crime was that she wanted to procure her passport which was under the possession of Mahdi.
As per Yemeni law, a convict in a murder case can be released if the family members of the victim pardon the crime.
Justice Kurian Joseph was approached by Advocate Subhash Chandran, who represents the NGO “Save Nimisha Priya Council”, to lead the negotiation talks to secure her pardon. He agreed to it. He stated that “I agreed. I only thought if this could save somebody’s life, well and good..”, He also clarified that it is a purely voluntary undertaking, without the involvement of the Government.
Recently, a writ petition was filed in the Delhi High Court by “Save Nimisha Priya Council” seeking the intervention of the Union Government for her release. The Centre told the Court that it will take proactive steps to pursue the appeal against her conviction. However, the Centre added that it cannot participate in the negotiations with the victim’s family. But, the Centre undertook to provide all necessary consular support and to facilitate the travel of the negotiators. However, the petition was disposed of by the Court.
In the case of Madan Lal v NDMC & Anr, the bench of Justices MR Shah and BV Nagarathna of the Supreme Court observed that “Any hawker can be permitted to hawk in the market only as per the hawking policy and not de hors the same. The petitioner, being a hawker, has no right to insist that he may be permitted to keep his goods and wares at the place where he is hawking overnight”.
The observations were rendered while considering a SLP assailing Delhi High Court’s order dated January 12, 2022. Before the Delhi High Court, Madan Lal who is a hawker in the Sarojini Nagar Market had sought for permission to leave his goods and wares at the place of hawking overnight. The contention before the High Court was that NDMC was not permitting the hawkers to leave its goods and wares at the place of hawking overnight and were insisting on removal of the same from the area of allotment once the activity was over. However, the petition was dismissed by the bench of Justices Vipin Sanghi and Jasmeet Singh.
While upholding the order of the High Court, the Apex Court stated that “We are in complete agreement with the view taken by the High Court. The concerned authority must act as per the hawking policy.”
In the case of Kamatchi vs Lakshmi Narayanan, the bench of Justices UU Lalit and PS Narasimha of the Supreme Court has held that the limitation period under Section 468 of the Code of Criminal Procedure is not applicable for the filing of an application by an aggrieved woman under Section 12 of the Protection of Women from Domestic Violence Act, 2005.
This case came before the Supreme Court as an appeal against the judgment of the Madras High Court which quashed the proceedings under Domestic Violence Act on the ground of limitation. In this case, the woman filed the application under Section 12 almost ten years after she had left her matrimonial home. The High Court quashed the proceedings as time-barred as according to Section 468 CrPC. The High Court said that as per Sections 28 and 32 of the Domestic Violence Act, 2005 r/w Rule 15(6) of the Protection of Women from Domestic Violence Rules 2006, the provisions of Criminal Procedure Code are applicable.
Condemning the approach of the High Court, it has been held by the Supreme Court that a Section 12 application cannot be treated as an application in respect of an “offence”. The offence under the Domestic Violence Act arises only under Section 31 when there is a violation of an order passed under Section 12. The court observed that “Filing of an application under Section 12 of the Act cannot be equated to lodging of a complaint or initiation of prosecution”.
Section 12 of the Domestic Violence Act allows an aggrieved woman to file an application before the Magistrate seeking various reliefs against the acts of domestic violence committed by her husband or in-laws. Section 468 CrPC sets out the period of limitation for taking cognizance over offences.
The Supreme Court held as erroneous a judgment of the Madras High Court which held that the Section 12 application ought to have been filed within one year of the acts of alleged domestic violence.
While having an online conversation on Comparative Constitutional Law with Justice Stephen Breyer of the Supreme Court of the United States of America, Chief Justice of India NV Ramana said that “65 years is too early an age for someone to retire”. During the session, CJI Ramana and Justice Breyer exchanged their thoughts on various significant topics, which includes judges appointment process, separation of powers, judicial independence, PIL jurisdiction and many more.
Earlier, on various occasions, there have been calls from many quarters for raising the retirement age of judges of the Supreme Court and the High Courts. The same suggestion has also been put forth by the Attorney General for India KK Venugopal. He has also suggested a minimum of 3 years tenure for the CJI.
The CJI’s comments assumed a particular relevance in the light of the fact that there is no fixed retirement age for US Supreme Court judges. CJI stated that “In the Indian judiciary, at the time of joining we know our date of retirement. There are no exceptions. As for me, I am still left with decent amount of energy. I am a son of an agriculturalist. I am still left with some land to cultivate.” CJI’s retirement is due on 27th August 2022.
