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In the absence of corroborative evidence, last seen theory cannot be made the basis of conviction

Supreme Court: The bench comprising of L.Nageswara Rao and Navin Sinha, JJ. held that in the absence of conclusive and consistent proof of circumstantial chain of evidence which lead to the only “hypothesis of guilt” against the accused then, only circumstance of last seen cannot be made basis of conviction.

In the case where the accused were charged with rape and murder of the deceased whose severed body was found on the railway track after she was seen in the house of one of the accused persons, the Gauhati High Court held them guilty for causing death in furtherance of common intention, under Section 302/34 and for tampering with evidences, under sec 201 of Penal Code 1860 and awarded life imprisonment for the same. Prosecution relied on blood samples, postmortem certificate and last seen theory to form chain of evidence.

The Court held that there exist no conclusive proof of corroboration of statement of investigation and the blood stains found on murder weapon couldn’t be established. The Court allowed the appeal and reversed the decision of High Court, stating that last seen together cannot be the only ground for holding accused guilty, a connectivity must be established, the circumstance of “last seen together” does not by itself and necessarily lead to the inference that it was the accused who committed the crime. It further stated that due to the lack of corroborative evidence the appellants are acquitted of the charges under Section 302, 201 read with 34 Penal Code 1860. [Anjan Kumar Sharma v. State of Assam, Criminal Appeal No. 560 of 2014, decided on 23.05.2017]

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AIMPLB to issue advisory to Qazis to tell bridegrooms to refrain from going for instant Triple Talaq

On 22.05.2017, the All India Muslim Personal Law Board (AIMPLB) filed an affidavit before the Supreme Court stating that it would issue an advisory through its website, publications and social media platforms asking Qazis to tell the bridegrooms at the time of performing Nikah (marriage) that in case of differences leading to talaq the bridegroom/man shall not pronounce three divorces in one sitting since it is an undesirable practice in Shariat.

The affidavit that will be placed before the 5-judge constituion bench of  J.S. Khehar, CJI and Kurian Joseph, U.U. Lalit, R.F. Nariman and Abdul Nazeer, JJ, mentioned that “at the time of performing ‘Nikah’, the person performing the ‘Nikah’ will advise both the bridegroom/man and the bride/woman to incorporate a condition in the ‘Nikahnama’ to exclude resorting to pronouncement of three divorces by the husband in one sitting.”

The bench had reserved it’s decision in the Triple Talaq matter on 18.05.2017 after a 6-day long hearing.

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Gujarat to give 50% reservation to in-service medical candidates for PG Courses in the second round of counselling starting tomorrow

Supreme Court: The bench of Dipak Misra and A.M. Khanwilkar, JJ directed the State of Gujarat to give 50 per cent reservation to the in-service candidates for admission to post-graduate medical diploma courses as per the regulations of the Medical Council of India. The reservation is to be granted in the second round of counselling, starting tomorrow for admissions in PG courses. The Court also asked the State Government to define remote rural or difficult areas in which the in-service medical officers will be working.

The in-service medical candidates had challenged the State’s order of granting only 25 per cent reservation to the in-service candidates for admission in PG medical diploma courses. The candidates had pleaded that as per regulation VII of the MCI Regulations, 2000, it is mandatory for the state to reserve 50 per cent of the total seats of government medical college in Post Graduate Diploma Courses for medical officers in the government service, who has served at least 3 years in remote and/or difficult areas.

The Gujarat High Court had, on 05.05.2017, dismissed the petition of in-service medical petitioners on the ground that it was not mandatory for the State Government to follow the rules and regulations issued by the Medical Council of India, particularly the Post Graduate Medical Education Regulations, 2000.

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Supreme Court to decide whether NOIDA is a corporation established by the Uttar Pradesh Government

Supreme Court: The bench of R.K. Agrawal and A.M. Sapre, JJ agreed to examine a plea of the income tax department whether the North Okhla Industrial Development Authority (NOIDA) is a corporation established by the Uttar Pradesh government under the state industrial development law or not. The Court said that it will look into the appeal filed by the IT department against an order of the Allahabad High Court which held that NOIDA is a corporation established under the Act and, therefore, banks are not liable to deduct income tax at source on fixed deposits.

The issue arose in 2013, when the IT department imposed a tax liability on the banks for non- deduction of TDS on the interest income on fixed deposit receipts (FDRs) of NOIDA. The banks, hence, preferred an appeal before the Commissioner of Income Tax (Appeals) (CIT-A), saying the NOIDA is a corporation established by the state law and banks are not under the statutory obligation to deduct and pay the income tax.

The IT department approached the Court against the order of the High Court and sought for determination of the issue as to whether NOIDA is a corporation entitled for exemption from deduction of income tax at source under the provisions of a notification issued in 1970 under the Income Tax Act.

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AIMPLB to issue advisory to Qazis to tell bridegrooms to refrain from going for instant Triple Talaq

On 22.05.2017, the All India Muslim Personal Law Board (AIMPLB) filed an affidavit before the Supreme Court stating that it would issue an advisory through its website, publications and social media platforms asking Qazis to tell the bridegrooms at the time of performing Nikah (marriage) that in case of differences leading to talaq the bridegroom/man shall not pronounce three divorces in one sitting since it is an undesirable practice in Shariat.

The affidavit that will be placed before the 5-judge constituion bench of  J.S. Khehar, CJI and Kurian Joseph, U.U. Lalit, R.F. Nariman and Abdul Nazeer, JJ, mentioned that “at the time of performing ‘Nikah’, the person performing the ‘Nikah’ will advise both the bridegroom/man and the bride/woman to incorporate a condition in the ‘Nikahnama’ to exclude resorting to pronouncement of three divorces by the husband in one sitting.”

The bench had reserved it’s decision in the Triple Talaq matter on 18.05.2017 after a 6-day long hearing.

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High Courts to issue directions to subordinate Courts providing timelines for speedy disposal of trials

Supreme Court: Taking note of the problem of delay in disposal of trials, the bench of A.K. Goel and U.U. Lalit, JJ said that ways and means have to be found out by constant thinking and monitoring. It is the constitutional responsibility of the State to provide necessary infrastructure and of the High Courts to monitor the functioning of subordinate courts to ensure timely disposal of cases. Presiding Officer of a court cannot rest in the state of helplessness.

The Court said that an appropriate action plan should be prepared at the level of the High Court and thereafter at the level of each and every individual judicial officer. Hence, the below mentioned directions should be issued by the High Courts to the subordinate courts in order to resolve the menace of pending trails causing hardships to the undertrial prisoners:

  • Bail applications be disposed of normally within one week;
  • Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years;
  • Efforts be made to dispose of all cases which are five years old by the end of the year;
  • As a supplement to Section 436A CrPC, but consistent with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. Such an assessment must be made by the concerned trial courts from time to time;
  • The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports.

The Court also requested the High Courts to ensure that bail applications filed before them are decided as far as possible within one month and criminal appeals where accused are in custody for more than five years are concluded at the earliest. Apart from that the High Courts may prepare, issue and monitor appropriate action plans for the subordinate courts and monitor steps for speedy investigation and trials on administrative and judicial side from time to time.

The High Courts may take stringent measures in the light of judgment of this Court in Ex. Captain Harish Uppal v. Union of India, (2003) 2 SCC 45, if found necessary in case of obstruction of Court proceedings by uncalled for strikes/abstaining of work by lawyers or frequent suspension of court work.

The Bench noticed that there are obstructions at every level in enforcement of right of speedy trial – vested interests or unscrupulous elements try to delay the proceedings, lack of infrastructure, etc. Inspite of all odds, determined efforts are required at every level for success of the mission. [Hussain v. Union of India, CRIMINAL APPEAL NO.509 OF 2017, decided on 09.03.2017]

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Delegated Authority under S. 33 (2) proviso (b) of the Karnataka Stamp Act, 1957 cannot determine the nature of the document

Supreme Court: Interpreting Section 33(2) proviso (b) of the Karnataka Stamp Act, 1957 as to the power of the delegated authority to determine the nature of the document, the Court held that what is delegated under the said provision is only the examination of the instrument for the purpose of determining as to whether the instrument is duly stamped or not and for impounding the same. The delegation by a Judge of the High Court will not clothe the officer the jurisdiction of determining the nature and character of the instrument inasmuch as such fact needs to be determined by the Judge while exercising judicial function. Such judicial function is not to be delegated to an officer of the Court by the Judge of the High Court.

The Court said that a judicial functioning has to be done in a judicial manner. The duty of determination of an instrument or, to explicate, to determine when there is a contest a particular document to be of specific nature, the adjudication has to be done by the Judge after hearing the counsel for the parties. It is a part of judicial function and hence, the same cannot be delegated. Considering the fact that under the High Court Rules, in certain High Courts, the computation is done by the authorities in the Registry with regard to the court fees, the Court said that such computation is also is subject to challenge before the Court when the applicability of a particular provision of the Court-fees Act, 1870 is concerned. Hence, in case of determination of the nature of the document under the 1957 Act, the authority is not empowered to determine the nature and character of the document. He may, however, at the best send a report to the Court expressing his views on a document which is subject to final determination by the Court.

Explaining further, the 3-judge bench of Dipak Misra, R. Banumathi and M.M. Shantanagoudar, JJ said that the word “examination” used in proviso (b) to Section 33(2) of the 1957 Act cannot be allowed to have such wide amplitude as the context does not so envisage. It has to be conferred restricted meaning which is in consonance with the provision and the scheme of the 1957 Act. The delegated power has to be restricted to cover the area, that is, whether the instrument bears the proper stamp and thus complies with the requirement of being “duly stamped”, and the stamp duty payable on the same must be determined only with reference to the terms of the instrument. [Black Pearl Hotels (Pvt) Ltd v. Planet M Retail Ltd, 2017 SCC OnLine SC 185, decided on 17.02.2017]

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Justice Karnan again fails to appear before the 7-judge bench; Bailabale warrant issued

Supreme Court: Owing to the non-appearance of Justice C. S. Karnan before the Court in the contempt proceedings, the 7-judge bench of J.S. Khehar, CJ and Dipak Misra, J. Chelameswar, Ranjan Gogoi, Madan B. Lokur, P.C. Ghose and Kurian Joseph, JJ issued a bailable warrant of Rs.10,000, in the nature of a personal bond, to ensure the presence of Justice Karnan on 31.03.2017.

On 08.02.2017, the Court had restrained Justice Karnan from handling any judicial or administrative work, as may have been assigned to him, in furtherance of the office held by him and had asked him to appear before the Court on 13.02.2017. Upon non-appearance of Justice Karnan on the said date, the Court listed the matter on 10.03.2017, however, on the next date as well he neither entered appearance in person, nor through counsel

The Court noticed that on 08.03.2017, the Registry had received a fax message from Justice Karnan seeking a meeting with the Chief Justice and the Judges of this Court, so as to discuss certain administrative issues expressed therein, which primarily seem to reflect the allegations levelled by him against certain named Judges. It was however said that the abovementioned fax message cannot be considered as a response of Shri Justice C.S.Karnan, either to the contempt petition, or to the notice served upon him.

The suo motu contempt proceedings were initiated against Justice Karnan after he had written letters to Prime Minister Narendra Modi, asking him to take actions against the corrupt sitting and retired judges of the Supreme Court and Madras High Court when he was a Judge of the Madras High Court and had passed an injunction against his own transfer orders. [n Re: Justice C.S. Karnan, SUO MOTU CONMT.PET.(C)No.1 OF 2017, order dated 10.03.2017]

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If the delay is not condonable statutorily, it cannot be condoned taking recourse to Article 142 of the Constitution

Supreme Court: In an appeal preferred under Section 125 of the Electricity Act, 2003, the 3-judge bench of Dipak Misra, A.M. Khanwilkar and M.M. Shantanagoudar, JJ held that the Act is a special legislation within the meaning of Section 29(2) of the Limitation Act and, therefore, the prescription with regard to the limitation has to be the binding effect and hence, the delay cannot be condoned taking recourse to Article 142 of the Constitution

In the present case, it was argued by the respondents that the appeal was barred by 71 days and hence, the Court erred in condoning the delay of 71 days in view of the language employed in Section 125 of the Act. Accepting the contention of the respondents, the Court noticed that as per Section 125 of the Act, this Court, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the period of 60 days from the date of communication of the decision or order of the appellate tribunal to him, may allow the same to be filed within a further period not exceeding 60 days. Hence, this Court has the jurisdiction to condone the delay but a limit has been fixed by the legislature, that is, 60 days. The Bench held that when the statute commands that this Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It is equivalent to Section 3 of the Limitation Act.

The appeal was listed before the Bench on 29.1.2010 on which date this Court condoned the delay and admitted the appeal. In light of the said facts it was contended that when the delay in review was condoned by this Court, the parties should not be permitted to raise a preliminary objection. The Court, however, rejected the said contention and said that if the delay is statutorily not condonable, the delay cannot be condoned. There is no impediment to consider the preliminary objection at a later stage. [ONGC v. Gujarat Energy Transmission Corporation Ltd, CIVIL APPEAL NO.1315 OF 2010, decided on 01.03.2017]

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Consider the strata of society the accused comes from before awarding death sentence and constituting a case as rarest of rare: Calcutta High Court

Calcutta High Court: The Court recently had to decide on a death reference under Section 366 CrPC against the order of conviction under Section 302 IPC and sentence of death passed last year by the Court of Additional Sessions Judge, Hoogly. Also, the accused appellant had appealed against his conviction.

The accused was charged of killing his 26 year old wife and 7 year old son. The Court found that the victim lady was beaten and tortured since the day she entered her matrimonial home by her husband and other family members. Also, the accused threatened her to cut with chopper and both the victims were actually killed by slicing their throats with sharp weapon. Motive was clear and the weapon was recovered.

The accused was found guilty on trial relying on all the witnesses and circumstantial evidence proving his conviction beyond reasonable doubt on which he was awarded death sentence. The Division Bench of the High Court too agreed that the prosecution proved its case beyond reasonable doubt. The next important question that the Court had to decide in this reference was whether the punishment given commensurates with the offence and to ascertain this, the aggravating and mitigating circumstance needs to be considered.

The aggravating circumstances as noted by the Court were that the accused killed his own wife and child, that he had an affair with his sister-in-law and he killed the lady and child in response to the refusal to proposal of marriage by the sister-in-law, that he consumed country liquor in order to prepare himself to commit the brutal and cold-blooded murder and that he informed everyone that his wife was bitten by a snake after killing her.

The Court tried to consider the mitigating circumstances like the reason he consumed liquor knowing that in senses, he would not be able to do it observing that aggravating circumstances clearly outweigh the mitigating circumstances. The Court also considered it important to study from which the appellant came. It noticed that his background was neither defined nor refined. He was a truck driver, was accustomed to consumer liquor showing the strata of the society that he came from. The Court discussed that had he been educated, he could have found some other means of marrying her lady love.

The Court had to look into whether the case could be classified as rarest of rare case and cited Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56 wherein Supreme Court observed that the rarest of rare case comes when a convict is a menace and threat to harmonious and peaceful co-existence of the society. The High Court perceived that there was no reason to believe that the appellant couldn’t be rehabilitated and reformed and it doesn’t seem that he would continue with his criminal activities proving to be threat to society.

At the same time, the Court considered that his acts did not call for sympathy and awarded 30 years of sentence without remission as granted in  Swami Shraddananda (2) v. State of Karnataka(2008) 13 SCC 767State of U.P. v. Sanjay Kumar(2012) 8 SCC 537 and Gurvail Singh @ Gala v. State of Punjab(2013) 2 SCC 713. The death reference was accordingly dismissed. [State of West Bengal v. Lakhikanta Adhikary, 2017 SCC OnLine Cal 197, decided on 10th February, 2017]

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Search Engines to constitute ‘In-house Expert Body’ to delete ‘Gender selection’ related searches

Supreme Court: The bench of Dipak Misra and R. Banumathi, JJ directed Google India, Yahoo ! India and Microsoft Corporation (I) Pvt. to constitute an “In-House Expert Body” which shall take steps to see that if any words or any key words that can be shown in the internet which has the potentiality to go counter to Section 22 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, should be deleted forthwith.

The Court further said that the Expert Body shall on its own understanding delete anything that violates the letter and spirit of language of Section 22 of the 1994 Act and, in case there is any doubt, they can seek suggestions from the Nodal Agency appointed by the Union of India .

On 19.09.2016, the Court had directed Google India, Yahoo ! India and Microsoft Corporation (I) Pvt. Ltd. to develop a technique so that, the moment any advertisement or search is introduced into the system, that will not be projected or seen by adopting the method of “auto block”. Ranjit Singh, Solicitor General had produced a “proposed list of words” like ‘gender selection’, ‘prenatal sex selection’, ‘baby gender selection’, etc., in respect of which when commands are given, there will be “auto block” with a warning and nothing would be reflected in the internet, as it is prohibited in India. [Sabu Mathew George v. Writ Petition (Civil) No.341/2008, order dated 16.02.2017]

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Respecting the National Song is not a fundamental duty under Article 51-A of the Constitution

Supreme Court: In the writ petition where it was prayed a National Policy be framed to promote and propagate the National Anthem, National Song and National Flag in spirit of the Article 51A to achieve the great golden goals, as set out in Preamble of the Constitution of India, the 3-judge bench of Dipak Misra, R.Banumathi and mohan M. Shantanagoudar, JJ said that Article 51A of the Constitution of India does not refer to ‘National Song’ and only calls for respect towards the National Anthem and National Flag as a fundamental duty.

However, the Court agreed to hear petition on other aspects, including the feasibility of singing /playing the National Anthem and National Song in Schools on every working day and tagged it with Shyam Narayan Chouksey v. Union of India, Writ Petition(s)(Civil) No(s). 855/2016, which relates to the similar matter. [Ashwini Kumar Upadhyay v. Union of India, Writ Petition(s)(Civil) No(s). 98/2017, order dated 17.02.2017]

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Section 50 CPC permits the execution of decree of permanent injunction against the legal heirs of judgment debtor

Supreme Court: In the matter relating to the executability of decree for permanent injunction against the legal representatives of judgment-debtor, the bench of Arun Mishra and Amitava Roy, JJ said that normally personal action dies with person but this principle has application to limited kinds of causes of actions and hence, in view of the specific provisions contained in section 50 CPC, such a decree can be executed against legal representative.

The Court noticed that If an injunction decree is capable of being enforced against a person other than the judgment-debtor by virtue of a statutory provision contained in Section 50 CPC, it can be executed equally against the son who inherits the estate of his father as well as against one who was joint with the father and brought on the record as his legal representative.

In the present case, the defendant in the original suit had sold 1.68 acres of land, though the land allotted to him on partition was only 1.58 acres. He had then tried to remove and destroy the wooden fence and made an effort to forcibly dispossess the plaintiff, the owner of the neighbouring property, thereby resulting into a permanent injunction. After his death, his heirs, in violation of the decree for permanent injunction, tried to forcibly dispossess the decree-holder from his property.

Taking note of the abovementioned facts, the Court said that the right which had been adjudicated in the suit in the present matter and the findings which have been recorded as basis for grant of injunction as to the disputed property which is heritable and partible would enure not only to the benefit of the legal heir of decree-holders but also would bind the legal representatives of the judgment-debtor. It is apparent from section 50 CPC that when a judgment-debtor dies before the decree has been satisfied, it can be executed against legal representatives. Section 50 is not confined to a particular kind of decree. Decree for injunction can also be executed against legal representatives of the deceased judgment-debtor. [Prabhakara Adiga v. Gowri, CIVIL APPEAL NOS. 3007-3008 OF 2017, decided on 20.02.2017]

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Reduction of sentence of an acid-attack accused from 1 year to 1 month imprisonment is completely unacceptable

Supreme Court: In the case where the refusal to marriage proposal by a girl resulted into a house trespass by the accused carrying an acid bottle and pouring it over the head of the girl and the Hyderabad High Court had reduced the sentence of one year imposed by the Trail Court to the imprisonment already undergone by the accused i.e. 1 month,  the Court said that when a substantive sentence of thirty days is imposed, in the crime of present nature, that is, acid attack on a young girl, the sense of justice is not only ostracized, but also is unceremoniously sent to “Vanaprastha”.

The Court said that the case at hand is an example of uncivilized and heartless crime committed by the accused. It is completely unacceptable that concept of leniency can be conceived of in such a crime. A crime of this nature does not deserve any kind of clemency as it is individually as well as collectively intolerable. When there is medical evidence that there was an acid attack on the young girl and the circumstances having brought home by cogent evidence and the conviction is given the stamp of approval, there was no justification to reduce the sentence to the period already undergone. The bench said that it unfathomable whether the High Court has been guided by some unknown notion of mercy absolutely ignoring the plight and the pain of the victim; a young girl who had sustained an acid attack, a horrendous assault on the physical autonomy of an individual that gets more accentuated when the victim is a young woman or remaining oblivious of the precedents relating to sentence or for that matter, not careful about the expectation of the collective from the court, for the society at large eagerly waits for justice to be done in accordance with law.

Apart from setting aside the order of the High Court and restoring the sentence imposed by the Trial Court, the Court directed the accused to pay a compensation of Rs.50,000/- and the State to pay a compensation of Rs. 3 lakhs. It was further directed that if the accused fails to pay the compensation amount within six months, he shall suffer further rigorous imprisonment of six months, in addition to what has been imposed by the trial court. [Ravad Sasikala v. State of Andhra Pradesh, CRIMINAL APPEAL NOS.406-407 OF 2017, decided on 27.02.2017]

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Article 311 of the Constitution applies only to civil posts, not to autonomous bodies

Delhi High Court: In the instant writ petition, the petitioner challenged the order of disciplinary authority whereby the petitioner had been inflicted the penalty of dismissal from service which would ordinarily be disqualification for future employment under the Government. Petitioner-an employee of Delhi Urban Shelter Improvement Board pleaded that he was appointed by the Chief Executive Officer (CEO) of the respondent and therefore the impugned order could not have been passed by a lower authority being the Member (Administration) of the respondent.

The petitioner further placed before the Court Article 311 of the Constitution that no person shall be dismissed or removed by a authority subordinate to that by which he was appointed. However, the Court rejected the contention out rightly stating that the petitioner was not holding any civil post for which the provision stated by him specifically applies as the respondent was an autonomous institution which is neither Central nor State government. Accordingly, the Court held that the petition was devoid of merits. [J.S. Sehrawat v. Delhi Urban Shelter Improvement Board, W.P.(C) No.1714/2017, decided on 27.02.2017]

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IO lacking territorial jurisdiction is no ground to interfere in investigation under Section 482 CrPC

Bombay High Court: The applicant approached the Court under Section 482 CrPc to quash and set aside the FIR vide Crime No. 338 of 2015, registered at Cantonment Police Station, Aurangabad under Sections 498-A and 323, 504 and 506 r/w Section 34 IPC. The complainant in her FIR lodged at the Cantonment Police Station on 9.10.2015 had alleged that while cohabitation at matrimonial home, she was subjected to maltreatment and harassment by the applicant on account of demand of money as well as domestic cause.

Pursuant to the FIR, setting the criminal law in motion and the IO proceeded to record the statement of witnesses acquainted with the facts of the case. Meanwhile, the applicants approached the High Court praying to quash and set aside the impugned FIR, filed by the complainant contending that the Cantonment Police Station, Aurangabad had no territorial jurisdiction to investigate into the crime as no part of crime was shown committed within its territorial limits  as the alleged offences were shown to be committed at Kandhar and Mumbai.

The Court heard both the parties and examined all the relevant documents and considering the nature of allegations nurtured on behalf of complainant, refused to exercise inherent powers under Section 482 CrPC in favour of the applicants and cited State of Haryana v. Bhajanlal1992 Supp (1) SCC 335, wherein it was held by the Apex Court that the power has to be used sparingly and cautiously. It observed that The inherent powers under Section 482 of Cr.P.C. should be exercised either to prevent abuse of process of any court or otherwise to secure ends of justice but, the  Court has no authority to examine the correctness or otherwise of the allegations as the applicant had contended that the allegations against them were false.

The Court found no force in the argument stating that the FIR deserved to be quashed on the ground of lack of territorial jurisdiction of the Investigating officer. The Court mentioned Sections 154 and 156 CrPC and explained that these provisions grant a statutory right to the police to investigate into the circumstances of any cognizable offence without authority from the Magistrate and this right of police to investigate couldn’t be interfered in exercise of powers under Section 482 of CrPC. The Court further cited Satvinder Kaur v. Sate (Government of NCT Delhi)(1999) 8 SCC 728, in which the Supreme Court had observed that if the investigating officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then FIR can be forwarded to the police station having jurisdiction over the area in which the crime is committed and said that this would not mean that the police officer can refuse to record the FIR just because it requires investigation.

The Court held that at that particular stage, when investigation is in progress, the impugned FIR cannot be quashed and set aside on the alleged ground that, as no part of offence is committed within the territorial jurisdiction of the Police Station where it is filed. The Division Bench dismissed the application saying that it had no authority to interfere in the investigation. [Satish Dharmu Rathod v. The State of Maharashtra, Criminal Applicaton No. 477 of 2016, decided on 21.02.2017]

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Woman sets husband ablaze in anger: Bombay HC convicts her under Section 300 IPC

Bombay High Court: Before the Aurangabad Bench of Bombay High Court, a woman convicted by trial court for murdering her husband by setting him on fire appealed against the conviction. The accused got married to the deceased husband and had a son out of the wedlock and since the day of marriage, the quarrels between the couple were common. There was a quarrel between both on 31st March, 2011 over some issue and on the same night at around 3:30 am, the accused set the deceased ablaze by pouring kerosene over him.

The two brothers of accused who lived in the same house heard their brother screaming and saw the accused on fire and the accused running away. He was taken to civil hospital where his dying declaration was recorded and henceforth, the accused was charged under Section 302 IPC. In her statement under Section 313 CrPC before trial court, she denied the evidence and witnesses of prosecution saying that the deceased might have committed suicide out of frustration from family quarrels.

In dying declaration, deceased stated that due to quarrel took place during the night, on 1st April 2011 at about 3.00 to 3.30 a.m., his wife accused poured kerosene on his person and set him ablaze in heat of anger, as a result he sustained burn injuries. In another dying declaration, recorded by Executive Magistrate in question answer form, he stated that the accused in a heat of anger, poured kerosene on his person and set him on fire. On the other hand, the accused contended that the FIR was lodged after 5 hours of the incident and the dying declarations were result of tutoring.

In appeal, the Court observed that the dying declarations were proved by the prosecution beyond reasonable doubt and came to the conclusion that the Appellant did commit the offence, as alleged by the prosecution. The Court further observed the dying declarations carefully and said that it appeared that the accused-Rani, in a heat of anger, due to quarrel took place in the night, poured kerosene on the person of Vaijinath and set him on fire. The Court elucidated that it was abundantly clear that, neither there was premeditation on the part of the accused, nor there was preparation for such commission of offence and the offence was the result of a sudden anger and quarrel on a trifle issue. The Court decided to take into account these mitigating circumstances noticed by it, it held that the offence committed by appellant would fall under Exception 4 of Section 300 IPC. The Division Bench accordingly set aside the conviction under Section 302 and convicted the appellant under Section 300 IPC and sentenced a rigorous imprisonment of 7 years. [Rani @ Anjali v.  State of Maharashtra, Criminal Appeal No. 229 of 2013, decided on 17.02.2017]

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‘Person interested’ in the matter of determination of compensation under LA Act does not include post-acquisition allottee

Supreme Court: The bench of A.K. Goel and U.U. Lalit, JJ held that a post-acquisition allottee of land is necessary or proper party or has any locus to be heard in the matter of determination of compensation under the scheme of the Land Acquisition Act, 1894.

In the present case, large land was acquired by the State of Haryana in different phases for the public purpose of setting-up Industrial Model Township by the Haryana State Industrial Development Corporation (HSIDC) in Gurgaon District in Haryana and a substantial part of the acquired land was allotted to Maruti Suzuki India Limited (MSIL). MSIL had sought for Impleadment as a necessary party in the matter relating to enhancement of compensation on the ground that it was a “person interested”. Rejecting the said contention, the Court said that the expression “person interested” could include a company or local authority for whose benefit the land was acquired under Part VII of the LA Act but the post-acquisition allottee cannot by any stretch of imagination be treated at par with beneficiary for whom the land was acquired.

Explaining the scheme of the LA Act, 1894, the Court said that if the acquisition is for a public purpose, the land vests in the State after the Collector makes an award and the possession is taken. Once the land vests in the State, the acquisition is complete. Any transferee from the State is not concerned with the process of acquisition. The State may transfer the land by public auction or by allotment at any price with which the person whose land is acquired has no concern. The mere fact that the Government chooses to determine the allotment price with reference to compensation price determined by the Court does not provide any locus to an allottee to contest the claim for enhancement of compensation. [Satish Kumar Gupta v. State of Haryana, CIVIL APPEAL NOs. 1587-1636 OF 2017, decided on 21.02.2017]

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Middle Income Group Scheme to make it easier for underpriviliged to file petitions

Now, it is easier for the middle and relatively lower income group to avail and enjoy the legal services of the country. The Hon’ble Supreme Court of India has introduced the Middle Income Group Scheme. It is a self supporting scheme which provides legal services to the middle income group citizens i.e. citizens whose gross income is not exceeding Rs. 60, 000 per month or Rs. 7, 50, 000 per annum.

The members of the governing body to whom the management of the Society is entrusted as required under Section 2 of the Societies Registration Act, 1860, as applicable to the National Capital Territory of Delhi includes Hon’ble Chief Justice of India as Patron-in-Chief, Attorney General for India as Ex-officio Vice-President, Solicitor General of India as Honorary Secretary and other senior advocates of the Apex Court as its members. As per the Supreme Court rules it is only through advocates on record cases can be filed before it.A sum of Rs. 500/- shall be payable to the Supreme Court Middle Income Group Legal Aid Society (SCMIGLAS) as service charges. The applicant shall have to deposit the fee indicated by the Secretary, which will be in accordance with the schedule attached to the Scheme. It is the Secretary, who will register the case under the MIG Legal Aid Scheme and proceed to forward the papers to the Advocate-on-Record/Arguing Counsel/Senior Counsel on the panel for opinion. If Advocate-on-Record is satisfied that it is a fit case to be proceeded with, then the Society will consider that the applicant is entitled to legal aid. The view expressed by the Learned Advocate-onRecord will be final insofar as the eligibility of the applicant for obtaining the benefit of the Scheme is concerned.

Under the scheme, middle class people who can’t afford the expensive litigation in the Supreme Court can avail the services of the society for a nominal amount. The person desirous of availing the benefit of the Scheme shall have to fill up the form prescribed and accept all the terms and conditions contained therein. As per the scheme, contingent fund will be created to meet the miscellaneous expenditure in connection with the case under the Scheme by requiring the applicant to deposit upto the stage of admission, a sum of Rs.750/- in addition to the charges required to be deposited with the Society, out of this contingent fund.

In the event of the learned Advocate taking the view that the case is not fit one for an appeal to the Supreme Court, then the entire amount after deduction Rs.750/- towards minimum service charges of the Committee shall be refunded to the applicant by way of cheque. As the next step, further, if the Advocate who is appointed under the Scheme is found negligent in the conduct of the case entrusted to him, then he will be required to return the brief together with the fee which he may have received from the applicant under the scheme. Further, the Society will not be responsible for the negligent conduct of the case but the entire responsibility will be that of the Advocate vis-a-vis the client. The name of the Advocate will, however, be struck off from the panel prepared under the Scheme.

A large number of poor people would approach the Hon’ble Supreme Court for aid to sort out their cases, file cases on their behalf and get justice, but could not afford the expenses. To make filing petitions easy for the underprivileged strata of the society, the Hon’ble Supreme Court decided to introduce this scheme.

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Realistic costs to be imposed to curb vexatious litigatio

Delhi High Court: While dismissing an appeal for being devoid of merits, the Single Bench of Hima Kohli, J. observed that to curb vexatious, and frivolous litigation, it is necessary to impose realistic costs and to fully restitute the party that has been put to disadvantage on account of such litigation.

One Aishi Lal was allotted the subject plot by the Government. In 1989, Aishi Lal expired, leaving behind five legal heirs, namely, his widow and four children. Later, in 1999, the appellant and his siblings relinquished their share in the suit premises in favour of their mother (respondent). The respondent averred that in 2001, the appellant approached her with a request to shift to the third floor of the premises for a short time, but once permitted he never vacated the premises. Also, in 2006, the appellant instituted a suit claiming partition, declaration and permanent injunction in respect of the entire premises, though it was rejected for being barred by limitation. When the appellant still refused to vacate the suit premises, the respondent instituted a suit for eviction and possession against him. The trial court decided in her favour on the basis of admissions made by the appellant. The appellant challenged the aforesaid decision contending that there were no categorical admissions made by him. He also took the plea of adverse possession and contended that the suit was barred by limitation.

The Court noted that there were sufficient admissions on record for the trial court to have passed a judgment on admissions. The Court also observed that the mere fact that the appellant, being a family member, was permitted to occupy the third floor of the suit premises, cannot be treated as adverse to his mother. Moreover, even if it was assumed that the appellant was entitled to take the plea of adverse possession, the period of twelve years prescribed in the Limitation Act, would have expired in 2018. The Court, thus concluded, that the defences taken by the appellant were misconceived, and malafide. Resultantly, the appeal was dismissed with costs of Rs. 5,30,000 granted in favour of the respondent. [Harish Relan v. Kaushal Kumari Relan, 2017 SCC OnLine Del 6614, decided on January 19, 2017]

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HomeCase BriefsSection 50 Cpc Permits The Execution Of Decree Of Permanent Injunction Against The Legal Heirs Of Judgment Debtor Section 50 CPC permits the execution of decree of permanent injunction

Supreme Court: In the matter relating to the executability of decree for permanent injunction against the legal representatives of judgment-debtor, the bench of Arun Mishra and Amitava Roy, JJ said that normally personal action dies with person but this principle has application to limited kinds of causes of actions and hence, in view of the specific provisions contained in section 50 CPC, such a decree can be executed against legal representative.

The Court noticed that If an injunction decree is capable of being enforced against a person other than the judgment-debtor by virtue of a statutory provision contained in Section 50 CPC, it can be executed equally against the son who inherits the estate of his father as well as against one who was joint with the father and brought on the record as his legal representative.

In the present case, the defendant in the original suit had sold 1.68 acres of land, though the land allotted to him on partition was only 1.58 acres. He had then tried to remove and destroy the wooden fence and made an effort to forcibly dispossess the plaintiff, the owner of the neighbouring property, thereby resulting into a permanent injunction. After his death, his heirs, in violation of the decree for permanent injunction, tried to forcibly dispossess the decree-holder from his property.

Taking note of the abovementioned facts, the Court said that the right which had been adjudicated in the suit in the present matter and the findings which have been recorded as basis for grant of injunction as to the disputed property which is heritable and partible would enure not only to the benefit of the legal heir of decree-holders but also would bind the legal representatives of the judgment-debtor. It is apparent from section 50 CPC that when a judgment-debtor dies before the decree has been satisfied, it can be executed against legal representatives. Section 50 is not confined to a particular kind of decree. Decree for injunction can also be executed against legal representatives of the deceased judgment-debtor. [Prabhakara Adiga v. Gowri, CIVIL APPEAL NOS. 3007-3008 OF 2017, decided on 20.02.2017]

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Sahara Matter: SEBI directed to attach the Subrata Roy’s Aamby Valley property

Supreme Court: Allowing SEBI to attach the properties belonging to Sahara Group, the Court directed Sahara to file a list of properties that can be put to public auction by 27.02.2017.

The 3-judge bench of Dipak Misra, Ranjan Gogoi and A.K. Sikri, JJ said that the properties suggested for public auction shall be free from any encumbrance which means that the properties should not be encumbered in any manner whatsoever.

Pratap Venugopal, appearing for SEBI had submitted that the property of the contemnors, situated at Aamby Valley City, Pune, Maharashtra, would be sufficient for realization of the whole amount. He insisted that the property should be attached so that the contemnors shall make all endeavour to deposit the amount with SEBI. Accepting the aforementioned submission, the Court directed for attachment of the Aamby Valley property.

The matter is listed to be heard on 27.02.2017.

[Sahara India Real Estate Corpn.Ltd v. SEBI, CONMT.PET.(C) Nos.412 & 413/2012, order dated 06.02.2017]

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Appeals Court denies setting aside District Court order of temporarily restraining the travel ban order

United States Court of Appeals for the Ninth Circuit: After the Temporary Restraint Order by the District Court, Western District of Washington at Seattle  against the travel ban in USA on 03-02-2017, the government appealed against the order in San Francisco Appeals Court, moving an Emergency Motion under Circuit Rule 27-3 for administrative stay and motion for stay pending appeal. The Court denied the appeal and refrained from ordering the immediate reinstatement of the executive order.

It was contended in favour of the executive order that the injunction contravened the constitutional separation of powers and harmed the public by thwarting enforcement of an Executive Order issued by the nation’s elected representative responsible for immigration matters and foreign affairs. It was also highlighted that the aliens were being given the privilege by permitting an entry into USA and they possessed no constitutional right as such.

However, on the other side, it was contended that the work of the judiciary is to ensure that the executive and legislature comport with the country’s laws and the Constitution. Though the question before the Court was narrow, but it is the duty of the court to ensure that the impugned executive order does not prove detrimental either to the citizens/residents in the country or even the executive branch of the tripart government.

Accordingly, the Appeals Court did not set aside the order of the District Court and denied to reinstate the impugned executive order. [State of Washington, et al., v. Donald Trump, President of the United States, et al.,  No. 17-35105,  order dated  4.02.2017]

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HomeCase BriefsJustice Karnan, The Sitting Judge Of Calcutta High Court, Restrained From Handling Any Judicial Or Administrative Work Justice Karnan, the sitting judge of Calcutta High Court, restrai

Supreme Court: The 7-Judge bench of Jagdish Singh Khehar, CJ and six senior most Judges of the Supreme Court, Dipak Misra, J. Chelameswar, Ranjan Gogoi, Madan B. Lokur, PC Ghose and Kurian Joseph, JJ, in the suo motu contempt proceedings initiated against Justice C.S. Karnan, restrained him from handling any judicial or administrative work, as may have been assigned to him, in furtherance of the office held by him. The bench also directed him to return, all judicial and administrative files in his possession, to the Registrar General of the High Court immediately.

Justice Karnan, who is a sitting judge of Calcutta High Court, had written letters to Prime Minister Narendra Modi, asking him to take actions against the corrupt sitting and retired judges of the Supreme Court and Madras High Court when he was a Judge of the Madras High Court and had passed an injunction against his own transfer orders. Attorney General Mukul Rohatgi had asked the Supreme Court to take suo motu action against the Judge to set an example.

Justice Karnan will appear before the Court on the next date of hearing on 13.02.2017. [IN RE : Justice C.S. Karnan, Sou Motu Contempt Petition (C) 1 of 2017, dated 08.02.2017]

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Irretrievable breakdown of marriage considered to be a ground to annul marriage

Delhi High Court: There was an appeal against the decision of the Family Court  which had dismissed the request for annulment of the marriage between the respondent and appellant on ground of desertion and cruelty by wife. The High Court reversed the order of Family Court and even noted that certain observations made by it were contrary to law. The wife had stated before the Court that her husband was more interested in other girls than in he and she had herself seen him with a girl to which he instead of explaining, had abused her without telling about the girl. Also, she had at several occasions received her husband’s phone from different girls.

To this allegation, response of the Family Court was that the husband must remove the suspicion from his wife’s mind and said that unchastity by a wife is to be viewed seriously because a higher level of fidelity is expected from a wife and it denied treating the allegation of infidelity made against the husband as mental torture. The Division Bench  expressed their shock at such a gender bias approach of the Family Court and made an important observation that an act of infidelity by either spouse would be treated on equal footing and amount to mental cruelty to other spouse. However, the facts of the case were such that the wife was unable to prove her allegations against her spouse.

In the present case, another important observation made by the Court relying on the facts was that the relations between husband and wife were more or less spoilt and they had reached the prime of their age. Also, they found out that there would be no good cause served by re-uniting them as the children were already major and could take care of themselves. It held that there was an irretrievable breakdown of marriage between both the parties in the case before them and granted the decree of divorce on the same ground while cruelty of one against the other was not sufficiently proved. However, there were serious allegations of both against each other indicating that compelling them to live with each other would in itself be an act of cruelty toward them. [Navratan Baid v. Neetu Baid,  FAO 366 of 2012, decided on 6.02.2017]

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Married female tenant’s sibling is neither an “heir” nor a “family” under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972

Supreme Court: The bench of Dipak Misra and R. Banumathi, JJ held that the brother of a married female tenant is neither a ‘heir’ as visualized under Section 3(a) nor ‘family’ within the meaning of Section 3(g) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

In the present case, the suit property was taken on rent by the father-in-law of deceased tenant and after his death, his son became tenant of the suit property. Upon his death, his wife i.e. the appellant’s sister became the tenant of the suit property.

The Court noticed that the word ‘heir’ is not defined in the Act and hence, it has to be given the same meaning as would be applicable to the general law of succession. Section 15 of the Hindu Succession Act lays down the general order of succession to the property of a female intestate who dies after the commencement of the Hindu Succession Act and the exception carved out in Section 15(2)(b) provides for a special order of succession in case of property inherited by her from her husband or her father-in-law; but its operation is confined to the case of her dying without leaving a son or a daughter or children of pre-deceased children to inherit her property. Language used in the section clearly specifies that the property inherited from the husband and father-in-law would devolve upon the heirs of husband/father-in-law from whom she inherited the property. Hence, upon death of the deceased tenant, in terms of Section 15(2)(b) of the Hindu Succession Act, in the absence of any son or daughter, the tenancy would devolve upon the heirs of her husband.

Determining whether the appellant was “family” as per Section 3(g) of the Act, the Court said that the said section defines ‘family’, in relation to landlord which includes the spouse that is husband or wife of a person, male lineal descendants which means his or her son, son’s son, son’s son’s son and so on, parents, grandparents, unmarried, widowed, divorced daughter or granddaughter, etc. The definition given in the clause is an inclusive one and is supposed to be construed in its technical meaning which implies what is not given has to be excluded as not forming part of the family of landlord or tenant. Therefore, sisters and brothers of landlord and tenant are excluded from his/her family.  [Durga Prasad v. Narayan Ramchandaani, CIVIL APPEAL NOS.1305-06 OF 2017, decided on 07.02.2017]

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An employer’s right to recover excess payment from pensionary benefits of employee who has committed no fraud or misrepresentation whatsoever, must be strictly construed

Calcutta High Court: In the present case, where the petitioner was aggrieved due to the impugned Pension Payment Order, 1999 by which the respondent authorities had deducted an amount of Rs. 29,447 on account of alleged overdrawal, the Bench of Arijit Banerjee, J., held that pensionary benefits are paid to a superannuated person by way of social welfare measure to enable him to live a life of dignity which is now recognized as a fundamental right of a citizen of India. An employer’s right to recover excess payment from the pensionary benefits of an employee who has committed no fraud or misrepresentation whatsoever, must be strictly construed. However, if fraud has been committed by an employee to induce the employer to make the excess payment, then such an employer’s right to recovery from pensionary benefits cannot be doubted.

In the instant case, the counsel for the petitioner Sourav Mitra contended that recovery of excess payment cannot be made from the retiral benefits of an employee unless such excess payment was made to the concerned employee because of some misrepresentation or fraud on his part. Meanwhile, the State via Supriyo Chattopadhyay, contended that excess payments made due to irregular pay fixation can be recovered by the employer.

Upon perusing the rival contentions and noting the declaration signed by the petitioner for his employer as to recovery excess payment, the Court observed that the form of declaration clearly means that even at the highest, recovery of excess payment could be made by the State from the salary bill of the petitioner during the tenure of his service and such a declaration would not entitle the State to recover any overdrawals from the pensionary benefits of the petitioner. The Court also went on to observe that declarations as to recovery excess payments are signed by employees under compelling circumstances with no real choice in such issues. [Shiba Rani Maity v. State of West Bengal, WP 29979 (W) of 2016, decided on 18.01.2017]

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Rejection of one ground will not affect the detention order passed on multiple grounds under COFEPOSA

Supreme Court: In the matter relating to supply of the ‘grounds’ of detention to the detenue when the Court has passed the order of detention under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the Court said that neither Section 3 of the Act use the term ‘grounds’ nor any other provision in the Act defines ‘grounds’. However, Section 3(3) deals with communication of the detention order and states that ‘grounds’ on which the order has been made shall be communicated to the detenue as soon as the order of detention is passed and fixes the time limit within which such detention order is to be passed. It is here the expression ‘grounds’ is used and it is for this reason that detailed grounds on which the detention order is passed are supplied to the detenue.

Explaining further, the Court said that these grounds are the ‘basic facts’ on which conclusions are founded and these are different from subsidiary facts or further particulars of these basic facts. There is only one purpose of the Act, namely, preventing smuggling and all other grounds, whether there are one or more would be relatable to the various activities of smuggling. Hence, different instances would be treated as different ‘grounds’ as they constitute basic facts making them essentially factual constituents of the ‘grounds’ and the further particulars which are given in respect of those instances are the subsidiary details.

In the present case, the High Court of Delhi had said that there various grounds which formed the basis of the detention order and even if the documents pertaining to one particular ground were not furnished, that ground could be ignored applying the principle of segregation of grounds enumerated in Section 5A of the Act and on remaining grounds the detention order was still sustainable. Agreeing with the view taken by the High Court, the bench of Dr. A.K. Sikri and Abhay Manohar Sapre, JJ said that once it is found that the detention order contains many grounds, even if one of them is to be rejected, principle of segregation contained in Section 5A gets attracted. [Gautam Jain v. Union of India, 2017 SCC OnLine SC 16, decided on 04.01.2017]

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Second wife, not legally married cannot claim compassionate appointment

elhi High Court: Recently before the Delhi High Court, a case regarding compassionate employment to a second wife of the deceased husband came up. Champa Devi- the second wife and the appellant pleaded that she was the legally wedded wife of the deceased as the late husband and employee (government) of GTB Hospital had sworn and declared on affidavit in 1990 that the petitioner was his lawful wife. However, the first wife of the petitioner was still alive at the time he sworn in the affidavit. It was only in 1994 that the first wife passed away.

The High Court noted that it was only in 2013 while she had the opportunity to state so when she applied for succession certificate or sough appointment on compassionate grounds, the petitioner claimed before the Court that she married the deceased as per Hindu rites in 1994 after the death of his first wife, but couldn’t present enough evidence to prove it. The same was not mentioned even in the certificate of marriage issued by Gram Panchayat of their village. Ever since the inception of the suit, her contention had been that she married the deceased by way of execution of a marriage deed and an affidavit.

On this, the Court went on to observe that under Hindu Law, marriage is a sacrament and not a contract which can be entered into by execution of a marriage deed.  She never even disputed the fact that at that time, he had a living spouse. She even contended that as she was the only wife alive at the death of her husband and therefore, she must be entitled to all the benefits. All these contentions were rejected by the Court and it upheld the judgment of the courts below observing that the appellant can not claim the status of a legally-wedded life and relied on the reasons stated above. [Champa Devi v. Lt. Governor of Delhi, RSA No. 403 of 2015, decided on January 17, 2017]

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Armed Forces Tribunal has jurisdiction to hear the appeals arising out of court martial verdicts qua GREF personnel

Supreme Court: Deciding the question as to the scope of power of Armed Forces Tribunal to hear the appeals arising out of court martial verdicts qua GREF personnel, the Court held that denial of jurisdiction to the said tribunal would be contrary to the Army Act, 1950 and the provisions engrafted under the Armed Forces Tribunals Act, 2007. It was held that the right to approach the AFT by the personnel of GREF who are tried by a court martial held under the very same Act has to be recognized. It was, however, clarified, that at the same time if the punishment is imposed on GREF personnel by way of departmental proceedings held under the CCS(CCA) Rules, 1965 the same cannot be agitated before the AFT and AFT shall have no jurisdiction to hear and decide grievances of GREF personnel relating to their terms and conditions of service or alternatively put ‘service matters’.

The bench of Dipak Misra and U.U. Lalit, JJ explained that the 2007 Act has been made applicable to persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950, the retired personnel subject to these Acts including their dependants, heirs and successors insofar as it relates to their service matters. The tribunal constituted in terms of Sections 4 and 5 thereof, is vested with twin jurisdiction viz., jurisdiction, powers and authority in service matters as provided in Section 14 and the jurisdiction in matter of appeal against courts martial under Section 15 of the Act.

It was further stated that the 1950 Act and the Army Rules, 1954 have been applied to civilian personnel of the GREF only for the purpose of discipline. The reasons are obvious. The GREF is a force raised and maintained under the authority of the Central Government, its units are set up on the lines of the Indian Army, it works with and under close coordination with regular army in border areas, facilitates the Indian Army to carry out its operational role, etc. Hence, it has been felt appropriate that the 1950 Act should be made applicable to a force raised and maintained by the Central Government as considered necessary in the interest of discipline. The issue can be perceived from a different perspective. The GREF personnel are subjected by legislative scheme to dual disciplinary control, and such an arrangement is permissible

Hence, if an offence is committed in relation to an enemy, offences on active service, mutiny, desertion, disobedience, etc., considering the nature and gravity of the offence, it may warrant severe action against the delinquent by way of trial by a court martial. In other disciplinary cases, the competent authority may decide to proceed under CCS(CCA) Rules, 1965 in which the maximum permissible punishment is only ‘dismissal from service’. [Mohammed Ansari v. Union of India, CIVIL APPEAL NO. 10131 OF 2016, decided on 02.02.2017]

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Once cognizance has been taken, Magistrate cannot suo motu direct further investigation

Supreme Court: Interpreting Section 173 CrPC with reference to the power of the investigative agency, the Court said that the un-amended and the amended sub-Section (8) of Section 173 of the Code if read in juxtaposition, would overwhelmingly attest that by the latter, the investigating agency/officer alone has been authorized to conduct further investigation without limiting the stage of the proceedings relatable thereto. This power qua the investigating agency/officer is thus legislatively intended to be available at any stage of the proceedings.

The bench of Dipak Misra and Amitava Roy, JJ said that though the Magistrate has the power to direct investigation under Section 156(3) CrPC at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202 CrPC, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) CrPC. Had it been the intention of the legislature to invest such a power, Section 173(8) of the Cr.P.C would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. The Court said that the recommendation of the Law Commission in its 41st Report which manifesting heralded the amendment, significantly had limited its proposal to the empowerment of the investigating agency alone.

It was held that after a report is submitted by the police on completion of the investigation, the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can be summoned by a Court and a person can be issued notice to stand trial at any stage, in a way redundant. [Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, CRIMINAL APPEAL NO.1171 OF 2016, decided on 02.02.2017]

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HomeCase BriefsSections 79 & 81 Of It Act And Section 51 Of Copyright Act Have To Be Harmoniously Construed Sections 79 & 81 of IT Act and Section 51 of Copyright Act have to be harmoniously construe

Delhi High Court: A Division Bench comprising of S. Ravindra Bhat and  Deepa Sharma, JJ. decided questions arising out of an appeal filed by MySpace related to ‘knowledge’ of infringement by an intermediary and extent of ‘safeguards’ extended to intermediaries. The suit was filed by ‘Super Cassettes Industries Ltd.’ (hereinafter “SCIL”) against MySpace for infringing their copyright under Section 51 of the Copyright Act, 1957. MySpace is an intermediary on the internet which provides a conduit for videos, songs, etc. SCIL asserts that their songs and videos being communicated to viewers free of cost and the ease of access by MySpace which is discouraging viewers to buy CD’s and DVD’s available in the market and leads to an immeasurable loss in revenue. However, MySpace earns its revenue from the advertisements it places on the videos uploaded on its portal. In addition thereto, there are individuals who upload videos violating the copyright of SCIL under the exclusive control of MySpace. The plaintiff’s contention is that its copyright is violated under Section 51 of the Copyright Act.

The Single Bench of the Delhi High Court found favour with the contention of plaintiffs, it said MySpace cannot take the aid of Section 79 (S. 79 – safeguards offered to intermediaries on the internet) of the Information Technology Act, 2000 because the IT Act and the Copyright Act operate in different fields and only the Copyright Act would apply to the case at hand. Consequently, the Single Bench issued an interim direction against MySpace to remove or block of videos within one week.

The Division Bench re-considered the exposition of law on Section 51 of the Copyright Act with Sections 79 and 81 of the IT Act and set aside the Single Bench decision on the ground that the standard of awareness required in Section 51 is not of mere suspicion or general awareness but of actual awareness. The Division Bench took credence from R.K. Mohammed Ubaidullah v. Hajee C. Abdul Wahab2000 (6) SCC 402 –

“A person is said to have notice of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.”

The Division Bench also said that the implementation of the order of the Single Bench would be impossible as the equation of virtual place with actual place was not fair as the nature of the internet is very different from physical place because of the sheer numbers accessing the world wide web. The Division Bench also resolved the confusion between Sections 79 and 81 of the IT Act by saying that both have to be harmoniously construed. Section 79 of the IT Act provides a safe harbour to the intermediaries by pointing out cases where the intermediary liability would not be arising. The difficulty in interpretation arises because Section 79 of the IT Act contains a non-obstante to the effect that the provisions of the IT Act would override any law whereas Section 81 lays down that the provisions of the Copyright Act would not in any way be curtailed by the IT Act.

The Division Bench clarified that the remedies of the intermediaries would be available and the same shall not stand precluded by virtue of Section 81 of the IT Act. The appeal was allowed by holding that the plaintiff i.e. SCIL will have to discharge the burden of pointing out the exact violation for MySpace to take it off their website and the same shall be dome within 3 weeks as is contemplated in Rule 3(4) of the Information Technology (Intermediary Guidelines) Rules, 2011. [MySpace Inc. v. Super Cassettes Industries Ltd., 2016 SCC OnLine Del 6382,  decided on  23-12-2016]

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Legislative intent behind R. 3(2)(c) first proviso of the Karnataka Value Added Tax Rules, 2005 is to sustain realistically the benefit of trade discount

Supreme Court:  In the matter where the first proviso to Rule 3(2)(c) of the Karnataka Value Added Tax Rules, 2005 was being interpreted to facilitate the determination of taxable turnover as defined in Section 2(34) of the Karnataka Value Added Tax Act, 2003 in interface with Section 30 of the Act and Rule 31 of the Rules, the Court said that the interpretation to be extended to the proviso involved has to be essentially in accord with the legislative intention to sustain realistically the benefit of trade discount as envisaged. Any exposition to probabilise exaction of the levy in excess of the due, being impermissible cannot be thus a conceivable entailment of any law on imperative impost.

The Court further said that to insist on the quantification of trade discount for deduction at the time of sale itself, by incorporating the same in the tax invoice/bill of sale, would be to demand the impossible for all practical purposes and thus would be ill-logical, irrational and absurd. Trade discount though an admitted phenomenon in commerce, the computation thereof may depend on various factors singular to the parties as well as by way of uniform norms in business not necessarily enforceable or implementable at the time of the original sale. To deny the benefit of deduction only on the ground of omission to reflect the trade discount though actually granted in future, in the tax invoice/bill of sale at the time of the original transaction would be to ignore the contemporaneous actuality and be unrealistic, unfair, unjust and deprivatory. While, devious manipulations in trade discount to avoid tax in a given fact situation is not an impossibility, such avoidance can be effectively prevented by insisting on the proof of such discount, if granted.

The bench of Dipak Misra and Amitava Roy, JJ said that the requirement of reference of the discount in the tax invoice or bill of sale to qualify it for deduction has to be construed in relation to the transaction resulting in the final sale/purchase price and not limited to them original sale sans the trade discount. However, the transactions allowing discount have to be proved on the basis of contemporaneous records and the final sale price after deducting the trade discount must mandatorily be reflected in the accounts as stipulated under Rule 3(2)(c) of the Rules. The sale/purchase price has to be adjudged on a combined consideration of the tax invoice or bill of sale as the case may be along with the accounts reflecting the trade discount and the actual price paid. The first proviso has thus to be so read down, as above, to be in consonance with the true intendment of the legislature and to achieve as well the avowed objective of correct determination of the taxable turnover. [Southern Motors v. State of Karnataka, CIVIL APPEAL NOS.10955-10971 OF 2016, decided on 18.01.2017]

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Husband can’t deny to maintain his wife on the ground that she earns more

Punjab and Haryana High Court:  While hearing the petition filed against the order given by the District Court, Pathankot the Single Bench comprising  of Rekha Mittal, J., said that the husband has no right to deny the maintenance to his wife because she earns more.

Earlier it was ordered by the District Court that the husband has to pay Rs. 15, 000 per month to his wife as  maintenance in order to meet her daily expenses and needs. The husband approached the High Court seeking relief that the maintenance allowed by the court @ Rs.15,000 per month is on higher side and liable to be reduced on the ground that the  wife was earning more than him. He also pleaded that he has to take care of his old parents, so it will be difficult for him to bear the cost.

The Court relied strictly on the decision of the District Court and said that the wife is entitled to enjoy the same amenities of life as she would have been had she been staying in the matrimonial home and considered the fact of inflating prices of the daily necessities of life and expenses on education of the children who have to meet the challenges of the society and face peer pressure,  and dismissed the petition. [Amit Kumar v. Navjot Dubey, 2016 SCC OnLine P&H 12523, decided on 12.12.2016]

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Bail in youth’s murder: Court cites provocation in the name of religion

Bombay High Court: While disposing of bail petitions of accused persons who were being prosecuted under Sections 302, 307, 143, 147, 148, 149, 120-B and 153-A of the Penal Code, 1860, for their involvement in an incident where a mob killed a person and injured another, the Single Bench of Mridula Bhatkar, J. granted bail to the accused persons on the ground that they had no personal animosity towards the deceased person.

The Court observed that the fault of the deceased was only that he belonged to another religion and considered this fact ‘in favour’ of the applicants/accused. The Court also noted the accused did not have criminal record and that it appeared that the accused were provoked in the name of religion to commit the murder. The incident relates to a mob which attacked two persons only because they were Muslims. The mob prior to this incident attended a meeting of Hindu Rashtra Sena where inflammatory speeches were delivered on account of defiling of statute of King Shivaji Maharaj. Thereafter, the applicants/accused, armed with weapons, spotted two persons on the road, whom they ascertained to be Muslim by their appearance, and attacked them with hockey sticks and stones. The Court granted bail to the accused persons on conditions that the accused furnish P.R. bond of sum of Rs 40,000 and some other conditions. [Vijay Rajendra Gambhire v. State of Maharashtra, Bail Application No. 2092 of 2016, decided on 12/01/2017]

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Sahara Matter: Date to deposit Rs. 600 Crores not extended; failure will lead Subrata Roy back to prison

Supreme Court: Refusing to extend the deadline to deposit the amount of Rs. 600 Crores before 06.02.2017, the 3-judge bench of Dipak Misra, Ranjan Gogoi and Dr. A.K. Sikri, JJ reiterated that if the Sahara India Real Estate Corporation Ltd., does not deposit the amount, the contemnors including Subrata Roy shall be committed to prison. The contemnors had sought the modification of the order dated 28.11.2016 where the 3-judge bench of T.S. Thakur, former CJ and Ranjan Gogoi and Dr. A.K. Sikri, JJ had directed that the said amount be deposited by 06.02.2017.

The Court, however, permitted the contemnors to transfer thirty-five million pounds equivalent to Rs.285 crores lying in Saharas account in London bank as no objection was raised to the same by SEBI and Union of India.

The matter has been listed to be heard on 07.02.2017. [SEBI v. SAHARA INDIA REAL ESTATE CORPN.LTD, CONMT. PET.(C) Nos.412/2012, order dated 12.01.2017]

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Woman, who’s fetus was diagnosed with Anencephaly, allowed to terminate 24 weeks pregnancy

Supreme Court: The bench of S.A. Bobde and L. Nageswara Rao, JJ allowed a woman to undergo medical termination of her 24 weeks pregnancy in the light of the apprehended danger to her physical and mental health in case of continuance of pregnancy.

The petitioner apprehended danger to her life, having discovered that her fetus was diagnosed with Anencephaly, a defect that leaves foetal skull bones unformed and is both untreatable and certain to cause the infant’s death during or shortly after birth. The medical examination showed that the fetus is without a skull and would, therefore, not be in a position to survive.

Deciding the question as to whether the right to bodily integrity calls for a permission to allow her to terminate her pregnancy, the Court said that the report of the Medical Board clearly warrants the inference that the continuance of the pregnancy involves the risk to the life of the pregnant woman and a possible grave injury to her physical or mental health as required by Section 3 (2)(i) of the Medical Termination of Pregnancy Act, 1971. Though, the pregnancy is into the 24th week, having regard to the danger to the life and the certain inability of the fetus to survive extra uterine life, the Court permitted the petitioner to terminate her pregnancy. [Meera Santosh Pal v. Union of India, WRIT PETITION (CIVIL) NO.17 OF 2017, decided on 16.01.2017]

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Denying maternity leave to a mother who begets child through surrogacy violates Article 21

Chhattisgarh High Court: While disposing a writ concerning denial of grant of maternity leave to a mother who has begotten  a child through surrogacy under Rule 38 of the Chhattisgarh Civil Services (Leave) Rules, 2010 the learned Single Judge Bench of Sanjay K. Agrawal, J. held that the State Government cannot differentiate between a biological mother and a mother who begets a child through surrogacy as right to life under Article 21 of Constitution of India includes the right to motherhood and also the right of every child to full development, thereby setting aside the  impugned order rejecting the application of the petitioner for grant of maternity leave  and  held that the petitioner is entitled for maternity leave as provided under Rule 38 of the 2010 Rules.

In the present case the petitioner surrogate mother was a lecturer working in the government girls higher secondary school, Utai. The petitioner was denied maternity leave by the Education Department on the ground that the concept of providing maternal leave to mother who begets child through surrogacy is not mentioned in the Chhattisgarh Civil Services (Leave) Rules, 2010. The Court was not satisfied with the said argument and observed by relying on the case of B. Shah v. Presiding officer Labour Court, (1977)4 SCC 384  that interpretation of beneficial piece of legislation which is intended to achieve social justice must be construed beneficially.

The Court also relied on various case laws such as Anuj Garg v. Hotel Association of India(2008) 3 SCC 1 and the rule of dynamic construction as explained by the eminent author Justice G.P Singh in Principles of Statutory Interpretation, observed that statutes are to be interpreted dynamically according to the change in society and societal conditions, unless and until the contrary intention appears from the statute. [Suddha Agarwal v. State of Chhattisgarh, Writ Petition (S) No. 4927 of 2016, decided on 3/01/2017]

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HomeCase BriefsIf Shareholder Has Substantial Interest In The Huf, The Payment Made To The Huf Will Be Deemed Dividend Under Section 2(22) Of The Income Tax Act, 1961 If shareholder has substantial i

Supreme Court: Explaining the term ‘dividend’ under Section 2(22)(e) of the Income Tax Act, 1961, the Court said that the said provision gives an artificial definition of ‘dividend’ and creates a fiction, thereby bringing any amount paid otherwise than as a dividend into the net of dividend under certain circumstances. Stating that the dividend taken note of by this provision is a deemed dividend and not a real dividend, the Court explained that loan or payment made by the company to its shareholder is actually not a dividend. In fact, such a loan to a shareholder has to be returned by the shareholder to the company. It does not become income of the shareholder.

The Court, however, clarified that for certain purposes, the Legislature has deemed such a loan or payment as ‘dividend’ and made it taxable at the hands of the said shareholder. The conditions required to be fulfilled to attract tax under the said clause are:

  • Payment is to be made by way of advance or loan to any concern in which such shareholder is a member or a partner.
  • In the said concern, such shareholder has a substantial interest.
  • Such advance or loan should have been made after the 31.05.1987.

The question that came before the bench of Dr. A.K. Sikri and Abhay Manohar Sapre, JJ was that whether in view of the settled principle that HUF cannot be a registered shareholder in a company and hence could not have been both registered and beneficial shareholder, loan/advances received by HUF could be deemed as dividend within the meaning of Section 2(22)(e) of the Income Tax Act, 1961 especially in view of the term “concern” as defined in the Section itself.

The Court noticed that, in the present case, the Karta is, undoubtedly, the member of HUF. He also has substantial interest in the assessee/HUF, being its Karta as he was entitled to not less than 20% of the income of HUF. Hence, it was held that the provisions of Section 2(22)(e) of the Act get attracted and it is not even necessary to determine as to whether HUF can, in law, be beneficial shareholder or registered shareholder in a Company. As per the provisions of Section 2(22)(e) of the Act, once the payment is received by the HUF and shareholder is a member of the said HUF and he has substantial interest in the HUF, the payment made to the HUF shall constitute deemed dividend within the meaning of clause (e) of Section 2(22) of the Act. [Gopal and Sons v. CIT, Kolkata, 2017 SCC OnLine SC 17, decided on 04.01.2017]

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A judgment announced but not available on records cannot be considered a ‘judgment’

Supreme Court: Reminding the courts of their judicial duties, the bench of Dipak Misra and Amitava Roy, JJ said that a trial Judge should remember that he has immense responsibility as he has a lawful duty to record the evidence in the prescribed manner keeping in mind the command postulated in Section 309 of the CrPC and pronounce the judgment as provided under the Code. Non-availability of judgment can never be a judgment because there is no declaration by way of pronouncement in the open court that the accused has been convicted or acquitted.

In the present case, a trial judge had delivered the judgment of acquittal of the persons accused under Sections 304B, 498A/34, 328 IPC read with Section 3/4 of Dowry Prohibition Act, 1961 but the same was not available on record as the judgment had not actually been dictated, dated or signed. The High Court of Chhattisgarh had then ordered the transfer of the matter to another Sessions Judge for rehearing. Aggrieved by the said order of the High Court, the accused persons had argued that the nature of order passed by the learned trial judge would amount to a judgment and in the absence of any appeal preferred by the State there could not have been a direction for rehearing of the sessions case as such action runs contrary to the provisions of CrPC. Rejecting the said contention, the Court said that when a situation like the present one crops up, it causes agony and hurts the justice dispensation system and no one has any right to do so. The High Court by rectifying the grave error has acted in furtherance of the cause of justice.

It was further explained that though CrPC does not define the term “judgment”, yet it has clearly laid down how the judgment is to be pronounced. The provisions clearly spell out that it is imperative on the part of the learned trial judge to pronounce the judgment in open court by delivering the whole of the judgment or by reading out the whole of the judgment or by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader. Further, the trial judge may not read the whole of the judgment and may read operative part of the judgment but it does not in any way suggest that the result of the case will be announced and the judgment would not be available on record. [Ajay Singh v. State of Chhattisgarh, CRIMINAL APPEAL NOS. 32-33 OF 2017, decided on 06.01.2017]

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Rejection of one ground will not affect the detention order passed on multiple grounds under COFEPOSA

Supreme Court: In the matter relating to supply of the ‘grounds’ of detention to the detenue when the Court has passed the order of detention under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the Court said that neither Section 3 of the Act use the term ‘grounds’ nor any other provision in the Act defines ‘grounds’. However, Section 3(3) deals with communication of the detention order and states that ‘grounds’ on which the order has been made shall be communicated to the detenue as soon as the order of detention is passed and fixes the time limit within which such detention order is to be passed. It is here the expression ‘grounds’ is used and it is for this reason that detailed grounds on which the detention order is passed are supplied to the detenue.

Explaining further, the Court said that these grounds are the ‘basic facts’ on which conclusions are founded and these are different from subsidiary facts or further particulars of these basic facts. There is only one purpose of the Act, namely, preventing smuggling and all other grounds, whether there are one or more would be relatable to the various activities of smuggling. Hence, different instances would be treated as different ‘grounds’ as they constitute basic facts making them essentially factual constituents of the ‘grounds’ and the further particulars which are given in respect of those instances are the subsidiary details.

In the present case, the High Court of Delhi had said that there various grounds which formed the basis of the detention order and even if the documents pertaining to one particular ground were not furnished, that ground could be ignored applying the principle of segregation of grounds enumerated in Section 5A of the Act and on remaining grounds the detention order was still sustainable. Agreeing with the view taken by the High Court, the bench of Dr. A.K. Sikri and Abhay Manohar Sapre, JJ said that once it is found that the detention order contains many grounds, even if one of them is to be rejected, principle of segregation contained in Section 5A gets attracted. [Gautam Jain v. Union of India, CRIMINAL APPEAL NO. 2281 OF 2014, decided on 04.01.2017]

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State cannot make Rules to exclude the employees of unaided educational institutions from the benefits of revised pay scale

Supreme Court: In the case where the validity of the Rules made in respect of the 6th Pay Commission by State of Maharashtra in the year 2009 was in question which dealt with the pay structure of the non-teaching employees of the educational institutions but exclude the non-teaching employees of the unaided non –government colleges, the bench of J. Chelameswar and Abhay Manohar Sapre, JJ said that the objects sought to be achieved by the periodic revision of the pay-scales is obviously to comply with the constitutional mandate emanating from Article 43 of the Constitution of India and hence, there is no rationale behind the classification made by the State of the Maharashtra between aided and unaided colleges.

The Court said that the people employed in educational institutions run by non-State actors are not treated any kindlier by the market forces and the economy than the people employed either by the Government or its instrumentalities or institutions administered by non-State actors receiving the economic support of the State. The very fact that the Government of India thought it fit to revise the pay scales of its employees and also thought it fit to accept the suggestions of the UGC to revise the pay scales of various Universities and other bodies whose maintenance expenditure is met by the UGC (in other words virtually by completely convinced that there is a definite need to revise the pay scales of not only its employees, but also the employees of its instrumentalities. The Constitution of India bestows considerable attention to the field of education. It recognizes the need for regulating the various facets of activity of education and also the need for not only establishing and administering educational institutions but also providing financial support for the educational institutions run by private/non-state actors.

Regarding the question as to whether a constitutional court could compel the executive to exercise its statutory authority to make subordinate legislation in a manner which would be consistent with the command of Article 14 and other provisions of the Constitution, the Court said that if a law (whether primary or subordinate legislation) is found to be untenable on the touchstone of Article 14 by the constitutional court, one clear option for a constitutional court is that it can declare such law to be unconstitutional and strike down the law. But, striking down a law, which confers some benefit on a class of people ignoring others who are otherwise similarly situated in our opinion is not to be done as a matter of course. If the benefit sought to be conferred by such a law is not repugnant to the directive principles of the State policy, striking down the same would virtually amount to throwing away the baby with bath water. [Secretary Mahatama Gandhi Mission v. Bhartiya Kamgar Sena, CIVIL APPEAL NOS. 115-116 OF 2017, decided on 05.01.2017]

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Policies concerning armed forces can be duly modified to ensure discipline in the Force and maintain its uniformity without any distinction of caste, creed, religion and sex

Supreme Court: Dismissing the present appeal wherein the appellant (enrolled as an airman with the Indian Air Force) had challenged the decision of the Air Officer Commanding for refusing his application seeking permission to keep a beard on religious grounds, since he is a Muslim, the three judge bench of T.S. Thakur, C.J., Dr. D.Y. Chandrachud and L. Nageshwar Rao, JJ., observed that regulations and policies with regard to the personal appearance of the Armed Forces in general and Air Force in particular were not laid down with the intention of creating discrimination between the officers on the basis of religion, rather the regulations have been implemented to ensure uniformity, discipline and order among the Air Force personnel, which also is an integral part of any armed force of the Union of India. The Court held that the appellant could not prove that his case lies within the exception enshrined in Regulation 425(b) of the Regulations of Indian Air Force, therefore the decision of the Commanding Officer in refusing to allow the appellant to keep his beard, was taken in the interest of maintaining uniformity in the Air Force and that the Commanding Officer was acting within his jurisdiction.

Regulation 425(b) of the Regulations of Indian Air Force, states that an air force officer can sport a beard or retain a beard only where there is a religious command which prohibits either the hair being cut or a beard being shaved. A per the policy clarifications issued from time to time, the status as regards to Regulation 425(b) is that any person joining service after 1st January, 2002 will not be allowed to maintain a beard unless his religion demands sporting a beard, and would be allowed to do so provided they were granted permission prior to the date of the letter or had grown a beard at the time of joining Air Force. On inquiring that whether keeping a beard is an integral part of Islam, the counsel for the appellant Shri Salman Khurshid stated that there are various interpretations and one of which states that it is ‘desirable’ to keep a beard.

Perusing the facts and the Regulation of Indian Air Force, the Court observed that as long as the provisions of Regulation 425(b) are not breached, a policy can be modulated and revisited for the interest of the Air Force and to ensure discipline in the Force which is paramount and is interconnected with the need to protect the nation against any threat. It was vehemently stressed by the Court that the Air Force being a combat force, it becomes necessary that all it’s officers and personnel are bound by the sense of Espirit-de-Corps without any distinction of caste, creed, colour and religion. [Mohammed Zubair v. Union of India, 2016 SCC OnLine SC 1472, decided on 15.12.2016]

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Parties entitled to approach the Court again, where the law is altered since the earlier decision

Delhi High Court: While considering a petition for the appointment of a sole neutral arbitrator in connection with a dispute between two parties on which an earlier petition had been dismissed by the Court, the Single Bench of Vibhu Bakhru, J. held that solely because an earlier petition on similar grounds has been dismissed, the present petition cannot be rejected since the matter in issue is not the same as in the previous proceeding, because the law interpreted is different and amended.

In the present case, the petitioners invoked the arbitration clause in case of a dispute between the parties and sought appointment of an arbitrator to adjudicate the disputes. The respondents suggested persons who were their own employees, because of which the petitioners doubted rendering of a fair and impartial decision by them. Also, one of their earlier petitions for similar reliefs had been rejected by the Supreme Court, and therefore the respondents opposed the present petition.

This Court, while admitting the petition, appointed an independent and neutral arbitrator saying that even if the arbitration clause in the contract entered into between the parties allows the appointment of an arbitrator who would otherwise be ineligible by virtue of him being an employee of the other company, such an arbitrator is not empowered to settle the dispute in view of the Arbitration and Reconciliation (Amendment) Act, 2015. Subsequently, it also held that the amended law would apply to the proceedings as the parties had expressly agreed to make applicable any statutory modifications. [Madhava Hytech-Rani v. Ircon International Limited, Arbitration Petition No. 159/2016, decided on 19.12.2016]

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Announcement of new Passport Rules

1. In order to streamline, liberalize and ease the process of issue of passport, the Ministry of External Affairs has taken a number of steps in the realm of passport policy which is expected to benefit the citizens of India applying for a passport. The details of these steps are given below:-

PROOF OF DATE OF BIRTH

2. As per the extant statutory provisions of the Passport Rules, 1980, all the applicants born on or after 26/01/1989, in order to get a passport, had to, hitherto, mandatorily submit the Birth Certificate as the proof of Date of Birth (DOB). It has now been decided that all applicants of passports can submit any one of the following documents as the proof of DOB while submitting the passport application:

(i) Birth Certificate (BC) issued by the Registrar of Births & Deaths or the Municipal Corporation or any other prescribed authority whosoever has been empowered under the Registration of Birth & Deaths Act, 1969 to register the birth of a child born in India;

(ii) Transfer/School leaving/Matriculation Certificate issued by the school last attended/recognized educational board containing the DOB of the applicant;
(iii) PAN Card issued by the Income Tax Department with the DOB of applicant;
(iv) Aadhar Card/E-Aadhar having the DOB of applicant;

(v) Copy of the extract of the service record of the applicant (only in respect of Government servants) or the Pay Pension Order (in respect of retired Government Servants), duly attested/certified by the officer/in-charge of the Administration of the concerned Ministry/Department of the applicant, having his DOB;

(vi) Driving licence issued by the Transport Department of concerned State Government, having the DOB of applicant;

(vii) Election Photo Identity Card (EPIC) issued by the Election Commission of India having the DOB of applicant;

(viii) Policy Bond issued by the Public Life Insurance Corporations/Companies having the DOB of the holder of the insurance policy.

Report of the Inter Ministerial Committee

3. A three-member Committee comprising of the officials of the Ministry of External Affairs and the Ministry of Women and Child Development was constituted to examine various issues pertaining to passport applications where mother/child has insisted that the name of the father should not be mentioned in the passport and also relating to passport issues to children with single parent and to adopted children. The Report of the Committee has been accepted by the Minister of External Affairs.

The following policy changes have been made inter-alia on the basis of the recommendations of this Committee:

(i) The online passport application form now requires the applicant to provide the name of father or mother or legal guardian, i.e., only one parent and not both. This would enable single parents to apply for passports for their children and to also issue passports where the name of either the father or the mother is not required to be printed at the request of the applicant.

(ii) The total number of Annexes prescribed in the Passport Rule, 1980, has been brought down to 9 from the present 15. Annexes A, C, D, E, J, and K have been removed and certain Annexes have been merged.

(iii) All the annexes that are required to be given by the applicants would be in the form of a self declaration on a plain paper. No attestation/swearing by/before any Notary/Executive Magistrate/First Class Judicial Magistrate would be henceforth necessary.

(iv) Married applicants would not be required to provide Annexure K or any marriage certificate.

(v) The Passport application form does not require the applicant to provide the name of her/his spouse in case of separated or divorced persons. Such applicants for passports would not be required to provide even the Divorce Decree.
(vi) Orphaned children who do not have any proof of DOB such as Birth Certificate or the Matriculation Certificate or the declaratory Court order, may now submit a declaration given by the Head of the Orphanage/Child Care Home on their official letter head of the organization confirming the DOB of the applicant.

(vii) In case of children not born out of wedlock, the applicant for the passport of such children should submit only Annexure G while submitting the passport application.
(viii) In case of issue of passport to in-country domestically adopted children, submission of the registered adoption deed would no longer be required. In the absence of any deed to this effect, the passport applicant may give a declaration on a plain paper confirming the adoption.

(ix) Government servants, who are not able to obtain the Identity Certificate (Annexure-B)/ No-Objection Certificate (Annexure-M) from their concerned employer and intend to get the passport on urgent basis can now get the passport by submitting a self-declaration in Annexure-‘N’ that he/she has given prior Intimation letter to his/her employer informing that he/she was applying for an ordinary passport to a Passport Issuing Authority.

(x) Sadhus/Sanyasis can apply for a passport with the name of their spiritual Guru mentioned in the passport application in lieu of their biological parent(s) name(s) subject to their providing of at least one public document such as Election Photo Identity Card (EPIC) issued by the Election Commission of India, PAN card, Adhar Card, etc wherein the name of the Guru has been recorded against the column(s) for parent(s) name(s).

4. Necessary notifications would be soon published in the Official Gazette to give effect to these changes. Instructions are also being issued to the Passport Issuing Authorities in India and abroad on these revised regulations.

5. The Ministry of External Affairs expects that the above changes in the Passport Rules would further ease the process for passport applicants in getting their Passport. At the same time, it would enable this Ministry to continue to deliver passport related services to the citizens in a timely, transparent, more accessible, reliable manner and in a comfortable environment through streamlined processes and committed, trained and motivated workforce.

Ministry of External Affairs

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Decision with respect to legalization of euthanasia lies with the South African Parliament rather than the Judges

Supreme Court of Appeal of South Africa: While deciding the present case wherein the legality of an order by the High Court of South Africa, Gauteng Division, Pretoria to allow physician assisted euthanasia to a dying cancer patient, was debated, the Court held that it is the forte of the Legislature to introduce laws in respect of legalizing physician assisted suicide/euthanasia, and that the present case in not appropriate for the Court to develop the common law of murder and culpable homicide.

The applicant who was dying of cancer, approached the High Court of South Africa, Gauteng Division, Pretoria claiming an order that a medical practitioner could either end his life by administering a lethal substance, or provide him with the lethal substance to enable him to administer it himself, and that in the event if a medical practitioner must end his life, then such medical practitioner would not be subjected to prosecution or disciplinary steps by the relevant professional body. Furthermore the applicant as seeking the above relief as matter of right as enshrined in the Bill of Rights under the Constitution also sought an order that the common law in relation to the crimes of murder and culpable homicide should be developed in terms of Section 39(2) of the Constitution of South Africa. The applicant was allowed by the High Court to go for physician assisted euthanasia; unfortunately however the applicant died 2 hours prior to the passing of the Order. The High Court however refused to recall the Order stating that it’s Order had extensive societal implications, upon which then the State decided to prefer an appeal to the Supreme Court.

Perusing the facts and the arguments for and against legalizing euthanasia, and also looking upon the complexities involved in the issue, the Court discussed the laws, the precedents regarding the issue. The Court further took notice of various countries wherein extensive laws have been laid down in respect of euthanasia, most particularly Netherlands and the State of Oregon, USA. However the Court noted that the separation of powers requires that Parliament should decide any changes on the law rather than requiring judges to do so. The Court further observed that the South African situation, social values and social-economic and political conditions are very different from the jurisdictions where euthanasia has been legalized. The Court also stated that the High Court was hasty in deciding the case and did not properly consider the South African law or international precedent cases and was wrong to assume that the common law on murder needs to be changed to accommodate assisted suicide and euthanasia. [Minister of Justice and Correctional Services v. Estate Stransham-Ford, (531/2015) 2016 ZASCA 197, decided on 06.12.2016]

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Court quashes show-cause notice stating resident payers should not be exposed to onerous responsibility of maintaining books and documents for an uncertain period of time

Delhi High Court: While determining the issues whether Section 201 of the Income Tax Act, 1961 (hereinafter the IT Act) would also apply to payments made to “non-residents” and whether the impugned show-cause notices are barred by limitation, the Bench of S. Ravindra Bhat and Deepa Sharma, JJ. quashed the notices stating that administrative convenience, cannot outweigh the harsh nature of the consequence, which would expose resident payers to the onerous responsibility of maintaining books and documents for an uncertain period of time.

In the instant writ petition the petitioner, a telecommunications service provider was issued several show-cause notices dated 31.03.2011, for the period F.Y. 2001-2002 to 2010-2011 and 05.03.2012 issued for FYs 2001-2002 to 2006-2007, in order to deem the petitioner as an “assessee in default” on account of failure to deduct tax at source on payments of interconnect usage charges to non-resident operators. The petitioners argued that Section 201 did not expressly mention “non-residents”, and only prescribed a time limitation for deeming one to be an assessee-in-default for residents. The petitioner relied on Commissioner of Income Tax v. NHK-Japan Broadcasting Ltd., 2008 SCC OnLine Del 1433 : (2008) 305 ITR 137  and the ruling that followed it, i.e. Commissioner of Income Tax v. Hutchison Essar Telecom Ltd.2010 SCC OnLine Del 1505: [2010] 323 ITR 230 (Del) to submit that proceedings under Section 201 cannot be initiated beyond the period of four years.

The Revenue Department on the other hand characterised this position as untenable since the two cases did not make a distinction between payments made to residents and non-residents. The memorandum explaining the provisions of Finance (2) Bill, 2009, which was in the form of a circular issued by the Central Board of Direct Taxes (CBDT) proposed to provide for express time-limits in the Act within which specified order under Section 201(1) will be passed. However, no time-limits have been prescribed for order under sub-section(1) of Section 201 where the deductee is a non-resident as it may not be administratively possible to recover the tax from the non- residents.

The Court said “It is quite possible to argue that the demarcation and distinction between payments made to residents and non-residents through the amendment, can mean that where no period of limitation for Sections 200 and 201 has been prescribed, one cannot be read into the Act.”

The Court, in Vodafone Essar Mobile Services Ltd. v. Union of India, 2016 (385) ITR 436 (Del) , was conscious of the absence of any limitation period in respect of payments to non-residents, for the purpose of Section 195 read with Section 201. Yet, it was held that the provision of “reasonable time” be read into the act for initiating action, as no reasonable time has been expressly provided in the Income Tax Act, 1961, which make the notices invalid under the statute. The rejection of this rationale for not providing limitation: “as it may not be administratively possible to recover the tax from the non-resident” in GE India Technology Centre v. CIT2010 (10) SCC 29,  was affirmed by this Court. [Bharti Airtel Ltd. v. Union of India2016 SCC OnLine Del 6338, decided on 19.12.2016]

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Pregnancy resulting from rape involves grave mental injury and hence, can be terminated without prior permission of court

Punjab and Haryana High Court: Allowing the plea of the petitioner (minor appearing through her guardian) wanting to medically terminate her pregnancy that resulted due to rape being committed upon her, the Court directed the District Medical Officer, Hisar to constitute a committee of 2 doctors to examine her and get her pregnancy terminated if she is in the right state of health. The Court referring an earlier case on this point reiterated the directions stating that in case where a rape victim irrespective of the fact that whether she is major or minor, if found pregnant and does not want to retain the foetus, then such pregnancy must be treated as involving grave mental injury and medical assistance shall be provided and the feasibility of terminating such pregnancy shall be considered.

In the instant case the victim’s request to medically terminate her pregnancy was rejected by the Court of JMIC, Hisar on the grounds that there is no legal provision to entertain such application. The petitioner was represented by P.K. Chugh.

Commenting upon the refusal by JMIC, the Court stated that in cases similar to the present case the victim should not be harassed by asking her to take permission from the courts as the Medical Termination of Pregnancy Act does not lay down such a procedure. The Court further observed that if a plea of termination of pregnancy by a rape victim is made then it should be dealt with utmost sensitivity. Vijender v. State of HaryanaCWP No.20783 of 2014, decided on 07.10.2014

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Live-in partners not entitled to protection if one of the partner has a subsisting marriage

Allahabad High Court: In a case before the Court dealing with the right to live-in relationship, Suneet Kumar, J. observed that when a person enters into a relationship with another who is married and such marriage has not been dissolved by any competent court, then such a relationship cannot be granted protection.

In this case, one of the petitioners was already married against her wishes. Subsequently she had a live-in relationship with the other petitioner for five years,and later eloped with intention to marry. Therefore, she and her partner sought protection since they claimed to have a right to live-in relationship. This Court, analyzing the case on the lines of the Supreme Court’s ratio in Indra Sarma v. V.K.V. Sarma(2013) 15 SCC 755, held that the petitioners entered into a relationship knowing fully well the marital status of each other. Since the woman’s marriage had not yet been dissolved by any competent court as on date, therefore, such a relationship could be granted any protection and would therefore not be covered under Section 2(f) of the Domestic Violence Act to fall within the expression relationship “in the nature of marriage”. [Kusum v. State of U.P., 2016 SCC OnLine All 988, decided on 09.11.2016]

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When the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the Courts

Supreme Court: Explaining the law on probation of offenders, the bench of Dipak Misra and Amitava Roy, JJ said that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the Courts. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison.

The Court further explained that if the sentence can be reduced to nil, then the statute does not prescribe a minimum sentence. A provision that gives discretion to the court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence. The two provisions, therefore, are not identical and have different implications, which should be recognized and accepted for the Probation of Offender Act, 1958.

The Court said that the parliament has made it clear that only if the Court forms the opinion that it is expedient to release the convict on probation for the good conduct regard being had to the circumstances of the case and one of the circumstances which cannot be sidelined in forming the said opinion is “the nature of the offence”. Though the discretion has been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient. [Mohd. Hashim v. State of U.P., 2016 SCC OnLine SC 1440, decided on 28.11.2016]

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Petitioner admonished for filing frivolous interlocutory application of sexual harassment by an opponent

Supreme Court: In the matter where the petitioner, who had filed a PIL pertaining to the challenge to the Animal Birth Control (Dogs) Rules of 2001, framed under the Prevention of Cruelty to Animals Act, 1960, had alleged sexual harassment by one of the opponents, the Court said that the petitioner had crossed all sense of propriety, restraint, decorum and, in fact, demonstrated brazen sense of insensibility and insensitivity to the process of adjudication and dignity for women. The Court added that when a public spirited person advocates for a cause which he feels is a public cause and this Court entertains the public interest litigation, more additional responsibility has to be cultivated by the petitioner.

The bench of Dipak Misra and Amitava Roy, JJ said that when the petitioner’s public interest litigation was entertained and he was permitted to argue in person, he should have understood that this Court had appreciated his concern for the lis, but by filing the present interlocutory application, it seems that he has thrown the initial decorum that allowed him to address the Court to the winds. The bench noticed that even though the allegations made are scandalous, unwarranted, indecent and absolutely uncalled for, the petitioner should have been well advised that such kind of allegations are not made in an application which has nothing to do with the subject matter of the lis, but may have something to do with a particular individual.

The Court directed that neither the electronic media nor the print media shall publish anything that will relate to identity of the lady or any remark in the interlocutory application as that stands expunged by this Court. Restraining the petitioner from circulating the interlocutory application in any manner whatsoever or speaking about it or publishing them either directly or indirectly, the Court added that any activity of this nature would amount to contempt of this Court and if such an event takes place, the person concerned will invite the wrath of law and the consequences of the same may be quite disastrous for him. [Sabu Steephen v. Union of India, 2016 SCC OnLine SC 1297, order dated 22.11.2016]

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Grant of bail in cases of cheating and criminal breach of trust affecting large number of people would have an adverse impact on trust of criminal justice system

Delhi High Court: The Division Bench comprising of S. Ravindra Bhat and Deepa Sharma, JJ. held that demand for privacy by the spouse is not cruelty and also reiterated that High Court lacks the jurisdiction to dissolve a marriage on the doctrine of “irretrievable breakdown” under Section 13(1)(ia) of the Hindu Marriage Act. The Court held that “Privacy is a fundamental human right. So when a woman enters into matrimony, it is the duty of the family members of her matrimonial home to provide her with some privacy.”
In the present case, an appeal was filled by the appellant husband whose petition for dissolution of marriage under Section 13(1)(ia) was dismissed by the Family Court of Rohini, Delhi. The petition was filed on the ground of cruelty alleging that the respondent wife was pressurizing him to set up a separate home as she did not want to live in a joint family which the respondent husband couldn’t afford since he worked as a labourer. Other allegations were that she was not dispensing her duties as a wife, demanded a separate household for herself, abused him verbally and physically and even abandoned him for no reason.
The wife by disapproving all these allegations stated that it was the husband who had been cruel towards her and not her. She alleged that her husband had demanded for a dowry of Rs. 1 lakh to buy a motorbike and as her family couldn’t afford it, she was ousted from her matrimonial home and was never allowed to return. She also mentioned that the husband had taken up a separate accommodation from his family members after marriage where he resided with her and their child for two-three days and then abandoned them and never returned.
The Court rejected the petition of the appellant husband and said that Section 23(1)(a) of the Act makes it abundantly clear that a decree can be granted when the Court is satisfied that the petitioner is in no way taking advantage of his wrong. Such is not the case here, as it is the appellant who abandoned the company of his wife. The Court stated that the evidence clearly disproves the appellant’s contention that the respondent left her matrimonial home and never returned. The Court reaffirmed the findings of the Family Court that the respondent had no intention to desert her husband and there was no evidential backing to support that the appellant or his family members had provided requisite privacy to the respondent thus, holding that privacy demand was not unreasonable and as such did not constitute cruelty. Further, the allegation that the behaviour of the respondent caused mental cruelty was also disapproved.
It is pertinent to note that the counsel for appellant asserted that there is no life in the marriage bond and that it should be dissolved for this reason. Counsel relied on K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226 in which it was held that “A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing.”
The Court relied on Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379 to hold that irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act and on  Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415 to hold that the doctrine of irretrievable break-down of marriage is not available to the High Courts, lacking powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. The Court based on its reasoning finally held that the Family Court was correct in holding that such demand of separate room was not unreasonable and as such did not constitute cruelty and also dismissed the husband’s petition. [Mini Appa Kanda Swami v. M. Indra, 2016 SCC OnLine Del 5312, decided on September 21, 2016]

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Spouse’s demand for privacy is not cruelty and not a ground for divorce

Delhi High Court: The Division Bench comprising of S. Ravindra Bhat and Deepa Sharma, JJ. held that demand for privacy by the spouse is not cruelty and also reiterated that High Court lacks the jurisdiction to dissolve a marriage on the doctrine of “irretrievable breakdown” under Section 13(1)(ia) of the Hindu Marriage Act. The Court held that “Privacy is a fundamental human right. So when a woman enters into matrimony, it is the duty of the family members of her matrimonial home to provide her with some privacy.”

In the present case, an appeal was filled by the appellant husband whose petition for dissolution of marriage under Section 13(1)(ia) was dismissed by the Family Court of Rohini, Delhi. The petition was filed on the ground of cruelty alleging that the respondent wife was pressurizing him to set up a separate home as she did not want to live in a joint family which the respondent husband couldn’t afford since he worked as a labourer. Other allegations were that she was not dispensing her duties as a wife, demanded a separate household for herself, abused him verbally and physically and even abandoned him for no reason.

The wife by disapproving all these allegations stated that it was the husband who had been cruel towards her and not her. She alleged that her husband had demanded for a dowry of Rs. 1 lakh to buy a motorbike and as her family couldn’t afford it, she was ousted from her matrimonial home and was never allowed to return. She also mentioned that the husband had taken up a separate accommodation from his family members after marriage where he resided with her and their child for two-three days and then abandoned them and never returned.

The Court rejected the petition of the appellant husband and said that Section 23(1)(a) of the Act makes it abundantly clear that a decree can be granted when the Court is satisfied that the petitioner is in no way taking advantage of his wrong. Such is not the case here, as it is the appellant who abandoned the company of his wife. The Court stated that the evidence clearly disproves the appellant’s contention that the respondent left her matrimonial home and never returned. The Court reaffirmed the findings of the Family Court that the respondent had no intention to desert her husband and there was no evidential backing to support that the appellant or his family members had provided requisite privacy to the respondent thus, holding that privacy demand was not unreasonable and as such did not constitute cruelty. Further, the allegation that the behaviour of the respondent caused mental cruelty was also disapproved.

It is pertinent to note that the counsel for appellant asserted that there is no life in the marriage bond and that it should be dissolved for this reason. Counsel relied on K. Srinivas Rao v. D.A. Deepa(2013) 5 SCC 226 in which it was held that “A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing.”

The Court relied on Vishnu Dutt Sharma v. Manju Sharma(2009) 6 SCC 379 to hold that irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act and on  Anil Kumar Jain v. Maya Jain(2009) 10 SCC 415 to hold that the doctrine of irretrievable break-down of marriage is not available to the High Courts, lacking powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. The Court based on its reasoning finally held that the Family Court was correct in holding that such demand of separate room was not unreasonable and as such did not constitute cruelty and also dismissed the husband’s petition. [Mini Appa Kanda Swami v. M. Indra, 2016 SCC OnLine Del 5312, decided on September 21, 2016]

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Invalidation of caste claim will result in automatic disqualification and termination of election

Bombay High Court: While upholding an order passed by the Commissioner, Solapur Municipal Corporation wherein the petitioner was declared disqualified and his seat was deemed to have fallen vacant on the basis of invalidation of his caste claim by the caste scrutiny committee, the Division Bench comprising of Ranjit More and Anuja Prabhudessai, JJ. held that such invalidation will result in automatic disqualification and retrospective termination of election of candidate. The Court relying upon Kalpana Dilip Bahirat v. Pune Municipal Corporation2014 (15) SCC 654, further held that Commissioners of Municipal Corporation while declaring such candidates as disqualified, act in accordance with law and it cannot be said that they have no jurisdiction in this regard.

The petitioner has relied upon birth extracts of his father and uncle from Birth and Death Register of Village Badhole, two loan receipts given by his father to one Fulchand Heblekar and to one Basappa Aadake, and Khoti Receipt between his uncle and one Bhimu Patil to support his caste claim that he belongs to “Teli” caste. On perusal of birth and death registers of Village Nanhegaon the Court found that the petitioner and his forefather were resident of Village Nanhegaon and entries in birth and death registers of Village Badhole appeared to be suspicious. Also, it was noted that there was no signature of Petitioner’s father on the loan receipts and there was vast difference in Fulchand Heblekar’s and Basappa Aadake’s signatures made at the time of purchase of stamp and signatures made at the time of execution of the document. Therefore it was concluded that the receipts were bogus and fabricated. The Khoti receipt was not considered since it was on simple paper, not registered. Also, it was shown that the caste of petitioner’s brother, aunts, sons, and cousin brother was recorded in their school leaving certificates as “Lingayat”.

The petitioner also challenged the Circular dated 17th July, 2013, issued by the State Election Commission of Maharashtra by which the Municipal Commissioners were authorised to pass orders declaring any Councillor as disqualified on account of his caste claim being invalidated by the caste scrutiny committee. The Court refused to entertain the challenge noting that the conduct of the petitioner in the present case is such that he cannot be permitted to invoke the discretionary jurisdiction under Article 226 and the petition was accordingly dismissed. [Jagdish Revansiddha Patilv. State of Maharashtra2016 SCC OnLine Bom 9008 , decided on 21 October, 2016]

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Father who is willing to pay maintenance for his daughter is also entitled to visitation rights

Delhi High Court: While disposing off an appeal wherein an order granting appellant’s wife a monthly maintenance of Rs. 25,000 under Section 24 of the Hindu Marriage Act, 1955 and similar amount towards education and maintenance of his daughter was challenged, the Division Bench comprising of Pradeep Nandrajog and Pratibha Rani, JJ. refused to interfere with the order, however it added that a father who is ready and willing to pay maintenance for his daughter is also entitled to see her at least on festivals, her birthday or at regular intervals.

Challenging the order, the appellant has claimed that he earns only Rs. 10,000 per month and his parents support him, whereas his wife belongs to a very rich family which owned a bungalow in Lokhandwala, a flat in Bandra, a bungalow in Swarup Nagar, Kanpur, a petrol pump and two warehouses in Lucknow and Mumbai. The wife admitted to the ownership of a flat in Bandra, Mumbai in the name of her mother and claimed that she had no share therein. She denied any other property being owned by either her mother or herself. Her father had died; there were no other siblings.

The Court observed that the husband had given no particulars of the bungalow in Lokhandwala or in Swarup Nagar, Kanpur nor of the petrol pump and two warehouses in Lucknow and Mumbai. It also noted that the family of the appellant was well off which resided in a 1000 sq yd house in Rajouri Garden and owned four luxury cars. The Court thus concluded that the husband was lying regarding his income and therefore refused to interfere with the order. However, taking into account his willingness to pay maintenance for his daughter, the Court permitted the appellant to visit his daughter at her boarding school on her birthday, festivals or once in three months. [Manpreet Singh Bhatia v. Sumita Bhatia, 2016 SCC OnLine Del 5598, decided on October 20, 2016]

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Drug overcharging case: Drug industry, failing to extend effective cooperation, cannot blame the Central Government for taking a decision without necessary information and data

Supreme Court: Stating that fixing the price of any commodity is not only difficult but also tricky, the Court held that the notification dated 13th July, 1999 issued by the Central Government under Paragraph 7 of the Drugs (Prices Control) Order, 1995 prescribing the norms for conversion cost, packing charges and process loss of raw materials (other than packing materials in conversion) and packing and process loss of packing materials in packaging is valid as it was issued after due application of mind.

The bench of Madan B. Lokur and R.K. Agrawal, JJ said that there is material to be considered, a bundle of factors to be considered and appropriate weight is to be given to the material and the factors. This is not easy to decide and there will always be some criticism with regard to either the material utilized or the factors considered or the weight attached to the materials and factors. In matters pertaining to drug formulations, it is not only an issue of demand and supply but also the ability of a common person to afford the formulation. At the same time, the manufacturer must also make some profit and be in a position to invest in research and development. There simply cannot be any mathematical precision in fixing the price of a commodity.

The Court said that it is true, as contended by Cipla, that no manufacturer/formulator is under an obligation to furnish whatever information is required by the Central Government including information that might be confidential but that does not mean that absolutely no information should be supplied by any company or incomplete information should be supplied by a very few of them. It would certainly be more appropriate for each company to have responded to the questionnaires sent with a communication that some particular information is not being furnished for reasons of confidentiality. The Court noticed that given the non-cooperative attitude of the drug industry, the Central Government prescribed the norms and Cipla and the drug industry were obliged to accept them as notified without much ado. It cannot be that the drug industry does not supply necessary information and data to the expert Committees appointed by the Central Government and then blames the Central Government for taking a decision without necessary information and data. Noticing that there have been earlier instances of non-cooperation by the drug industry, the Court said that the failure of the drug industry to extend effective cooperation an endemic problem.

The Court also held the notifications issued by the Central Government fixing the retail price or ceiling price of formulations under Paragraphs 8 and 9 (as the case may be) of the Drugs (Prices Control) Order, 1995 without determining the norm for cost of packing material as required by Paragraph 7 of the Drugs (Prices Control) Order, 1995 are valid in law and the fixing of retail price of a formulation under Paragraph 8 of the Drugs (Prices Control) Order, 1995 without first fixing the sale price of a bulk drug under Paragraph 3 of the Drugs (Prices Control) Order, 1995 utilized in the manufacture of a formulation, to be valid in law.

With regard to the manner in which the Union of India has handled the litigation as very little or scanty material was placed by the Union of India before the concerned High Courts, particularly the Allahabad High Court, the Court said that such practice deserves discouragement as it tends to degrade the importance of proceedings in the High Court and could subsequently embarrass the High Court which might inadvertently base its decision on insufficient material resulting in the possibility of an incorrect decision which is liable to be set aside and it might also cause serious prejudice to a litigant.

The Court also said that in matters where public interest is involved, the Court ought to be circumspect in granting any interim relief. The consequence of an interim order might be quite serious to society and consumers and might cause damage to public interest and have a long term impact. [Union of India v. Cipla Ltd., CIVIL APPEAL NO. 329 OF 2005, decided on 21.10.2016]

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NHRC notice to Odisha Govt. over reported fire in a Bhubaneswar hospital resulting in death of 22 persons

The National Human Rights Commission has taken suo motu cognizance of media reports that due to suspected short circuit, a major fire broke out in the SUM Hospital and Medical College in Bhubaneswar, Odisha on the 17th October, 2016. At least 22 persons were reported dead. 40 patients in a critical condition were admitted to different hospitals. Reportedly, the hospital in question was warned as early as in 2013 for not keeping the safety measures but the hospital authorities ignored it. In Odisha, out of 568 hospitals, only 3 have clearance of the department of fire safety.

The Commission has observed that callous attitude and lapses of the authorities, if any, amount to violation of right to life of the patients. It has expressed shock how the State authorities allowed such a large number of hospitals to function without proper fire safety clearance. Accordingly, it has issued a notice to the Government of Odisha through its Chief Secretary calling for a report in the matter within six weeks including the relief and rehabilitation granted to the next of Kin of the deceased and the injured. He has also been asked to inform about the steps/precautions taken or proposed to be taken by the State Government to prevent recurrence of such mishaps.

Reportedly, the fire reportedly started in the Operation Theatre of the Dialysis Ward and spread to ICU and nearby wards. The State Government has ordered a probe by the Director, Medical Education and Training and has also declared free treatment to all injured persons.

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Acquittal of husband and his family members in dowry demand case held, is no ground to deny maintenance to the wife and child

High Court of Punjab and Haryana: While deciding upon the challenge to the orders of the Judicial Magistrate Ist Class, Hansi and the Addl. Sessions Judge, Hisar passed in relation to a maintenance petition under Section 12 of the Protection of Women against Domestic Violence Act, 2005, the Bench comprising of Anita Chaudhry, J. held that the acquittal of the petitioner and his family members in dowry demand case is no ground to deny maintenance to the wife and the child.

In the present case the wife had filed a petition under Section 12  of the 2005 Act for maintenance alleging therein that she and her son were unable to maintain themselves after the husband had levelled charges of adultery against her and  denied the paternity of the son born out of wedlock, thus claiming compensation, a protection order, residency order and maintenance from the husband. The husband resisted the claim on the ground that the wife had willfully deserted him and that she was a lady of easy virtue and even denied the paternity of the son. He denied the responsibility of the wife and the child. It was claimed that the wife was working in Anganwari and getting Rs. 3000 as salary, besides getting Rs. 750 as pension from the Government. Thereby the husband challenged the legality and validity of the orders passed by the Judicial Magistrate  and the Addl. Sessions Judge who allowed the wife’s petition for maintenance.

The Court while examining the contentions of the parties held that the petitioner while averting the chastity of the respondent and the paternity of the son, had produced no material evidence to substitute his plea. The Court pointed out that with such baseless and unproved allegation it was impossible for the respondent to live with the petitioner however the respondent in a bid to restore her married life withdrew the maintenance petition as well as criminal complaint in 2004 but was turned away again from her matrimonial home and was hence living separately since then. The Court further observed that it is not possible for the respondent to cohabit with petitioner in such terrible and unnerving predicaments hence the directions of the learned Magistrate providing for maintenance and residential accommodation to the respondent are just and proper.

While deciding in favor of the respondent and dismissing the appeal the Court held that acquittal of the petitioner and his family members in dowry demand case is no ground to deny maintenance to the wife and the child. The petitioner cannot be absolved of his liability to maintain the wife and the child on this score. The case in hand is required to be decided on the preponderance of probabilities and no strict standard of proof is required to be proved.

Ruling upon the issue of quantum of maintenance payable under Section 12 of the Protection of Women against Domestic Violence Act, 2005, the Court held that since the son has attained majority, he is not legally entitled to claim any maintenance hence the amount of maintenance granted in the order of the Judicial Magistrate and the  Sessions Judge has to be adjusted accordingly after deducting half- share of the child in the maintenance amount. [Narender  v. Sunita2016 SCC OnLine P&H 7608, decided on September 20, 2016]

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Selling a drug without valid licence is a non-cognizable offence

Bombay High Court: The Division Bench comprising S.S. Shinde and Sangitarao S. Patil, JJ. quashed and set aside the criminal proceedings instituted in the Court of the Judicial Magistrate First Class, Chalisgaon, against the petitioner for selling a drug without a valid licence as punishable under Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940, since the said offence being non-cognizable, it’s cognizance could not have been taken on the basis of charge-sheet filed by the police officer.
The Assistant Commissioner, Jalgaon had passed an order suspending the petitioner’s licence to sell drugs from 1st October, 2013 to 15th October, 2013. It was alleged that on 10th October, 2013, the Assistant Commissioner and Drugs Inspector (Respondent 2) visited the petitioner’s store and without disclosing their identity, asked for a cough syrup, whereon the petitioner sold Alkof cough syrup to them while refusing to receive payment for the syrup. Thereafter, Respondent 2 lodged an FIR against the petitioner for the offence punishable under Section 27(b)(ii) of the Act. Subsequently, criminal proceedings were instituted on the basis of charge-sheet submitted by police.
The High Court observed that the petitioner’s licence had been suspended by Assistant Commissioner himself, and Respondent  2 was serving as Drugs Inspector since 2012. Therefore, it cannot be accepted that Drugs Inspector and Assistant Commissioner were not known to the petitioner. It was natural on the part of the petitioner to hand over the cough syrup on being asked by a Drugs Inspector, and his refusal to receive payment for the cough syrup indicates that he was not intending to sell the same. Lastly, the Court found that since the offence punishable under Section 27(b)(ii) of the Act has not been included in Section 36­-AC(1)(a) of the Act that enumerates the offences which have been made cognizable, the said offence is non-cognizable. Therefore police was not empowered to conduct an investigation without the Magistrate’s order. It was thus held that the cognizance of the said offence taken on the basis of the charge-sheet filed by the police officer was illegal and criminal proceedings instituted thereof are to be quashed and set aside. [Rajendra v.State of Maharashtra, Criminal Writ Petition No. 846 of 2016, decided on October 10, 2016]

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Prison punishment reduced on humanitarian grounds where prisoner overstayed furlough period

High Court of Bombay: Examining the aspects of prison punishment granted to  prisoners, the Division Bench  comprising of V.K. Tahilramani and  Mridula Bhatkar, JJ., held that the prison punishment could be reduced on humanitarian grounds in case the prisoner overstayed the period granted in furlough. Ruling in favour of  the petitioner, the Court reduced the punishment of a prisoner who,  overstayed the period of furlough leave granted to him, by 93 days, as his wife was not keeping well and had to undergo hysterectomy.
The petitioner was granted 14 days furlough leave pursuant to his application  and was released on March 20, 2004, however,the petitioner did  not present himself on time i.e. on April 4, 2004 before the jail authorities. Hence he was arrested and brought back to jail on July 7, 2004. In reply to the show-cause notice issued to the petitioner  requiring explanation for the over-stay, the petitioner submitted that his wife was sick and  required hysterectomy, hence he was unable to  surrender himself before the jail authorities on time. Thus prison punishment was imposed on the petitioner to forfeit his remission in the ratio of 1:5  i.e. for each day of overstay, 5 days of remission would be cut. The petitioner being aggrieved by the prison punishment contends it to be harsh and that it should be set aside.
The Court  held that the prison punishment ought to be reduced on account of humanitarian grounds in case the prisoner overstayed the period granted in furlough and thus on hearing the explanation submitted by the petitioner, reduced the prison punishment of the petitioner in the ratio of 1:3 i.e. for every day of overstay, 3 days of remission would be cut, instead of the original punishment  in the ratio of 1:5. [Takku Singh  v. State of Maharashtra 2016 SCC OnLine Bom 8834, decided on September 22, 2016]

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Literally Rule 7 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 to be interpreted literally

 

Supreme Court: Interpreting the anti-dumping provisions of the Customs Tariff Act, 1975 and the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Court said that the source of power in the Designated Authority (DA) to treat an information as confidential must be within the confines of Rule 7 of the Rules and the said Rule should be interpreted literally.

The Union of India and the DA had sought that the interpretation made by the Court in Reliance Industries Ltd. v. Designated Authority, (2006) 10 SCC 368, where it was held that Rule 7 does not permit the DA to claim confidentiality and that right to make such a claim is vested only in a party who has supplied the particular information, needed a fresh look as it diminishes the rule of confidentiality statutorily provided for under Rule 7.

Rejecting the said contention, the bench of J. Chelameswar, Shiva Kirti Singh and A.M. Sapre, JJ said that if the submission advanced on behalf of Union of India and DA are accepted, one will have to adopt a purposive liberal interpretation so as to enlarge the scope of this Rule. That does not appear to be the intention of the statute makers nor is it warranted by the context. The DA, being a statutory investigator, cannot assume for himself the role of a party for the purpose of Rule 7 and to claim as well as accept on information to be confidential. The effect of Rule 7 is clear, it permits an exception to the principles of natural justice.

It was further explained that In case the DA is conceded power to gather information from sources other than interested parties, he must not treat such information as confidential unless the party which has supplied the information makes a request to keep the information confidential. Even in such a situation where an uninterested party claims confidentiality in respect of information supplied, as per Rule 7, the DA has to take all necessary precautions to decide the genuineness of such claim. While taking precautions not to disclose the sensitive confidential information, the DA can, by adopting a sensible approach indicate reasons on major issues so that parties may in general terms have the knowledge as to why their case or objection has not been accepted in preference to a rival claim. But in the garb of unclaimed confidentiality, the DA cannot shirk from its responsibility to act fairly in its quasi-judicial role and refuse to indicate reasons for its findings.

Regarding the cases where it is not possible to accept a claim of confidentiality, the Court said that Rule 7 hardly leaves any option with the DA but to ignore such confidential information if it is of the view that the information is really not confidential and still the concerned party does not agree to its being made public. In such a situation the information cannot be made public but has to be simply ignored and treated as non est. [Union of India v. Meghmani Organics Ltd., CIVIL APPEAL NO. 1679 of 2010, decided on 07.10.2016]

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No court will lend its aid to a man who finds his cause of action upon an immoral or illegal act

Court of Appeal of Malaysia: The principal issue in this case was whether there is a resulting trust i.e whether the deceased, Ismail bin Barliar held the said disputed property  on a resulting trust for and on behalf of the plaintiff where the plaintiff had never established that the purchase of the property was solely through the plaintiff’s money. The appellant (the administrator of the estate of Ismail bin Barliar)  appeals against the decision of the High Court  which held that there was a resulting trust and contends that there was clear evidence to show that the respondent did not purchase the disputed property solely with his money. The plaintiff-respondent at the material time was a Deputy Minister and  had used the deceased’s name purportedly as nominee to acquire the disputed property from the State Government.
The 3-Judge Bench held that, “If A buys a property using his own money and registers the property in the name of B, by operation of law, it is said that B holds the property on a resulting trust for A. This is actually a settled principle of law.” The Court observed that the conduct of the plaintiff as well as the bank officers who extended the loan per se attracts the concept of illegality as well as public policy and referred to Patel v. Mirza[2016] 3 WLR 399 : [2016] UKSC 42 as instructive, where Lord Toulson reiterated the well-established principles in this area of jurisprudence to say that:

(i) No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.
(ii) Illegality has the potential to provide a defence to civil claims of all sorts, whether relating to contract, property, tort or unjust enrichment, and in a wide variety of circumstances.
The leading English case which anchors the jurisprudence relating to resulting trusts is the statement of Eyre CB in Dyer v. Dyer, [1788] 2 Cox 92, where His Lordship said that the trust of a legal estate results to the man who advances the purchase price. The Court held that the High Court should not have entertained an equitable relief which is discretionary in nature when the general norms of equity had been violently breached. The appeal was allowed with costs  to the appellant/first defendant, subject to allocatur and the judgment of the High Court was set aside. [Mohd Iftitah Bin Ismailthe Administrator of the Estate of Allahyarham Ismail Bin Barliar v. Dato’ Hasan Bin Malek ,2016 SCC OnLine MYCA 264, decided on September 2, 2016]

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Article 25 does not confer the right to offer worship at any place built illegally

Bombay High Court: Observing that construction of illegal shrines on pathways and streets was in no way an integral part of any religion so as to be protected under Article 25 of the Constitution, a Bench comprising of Abhay Oka and Ahmed Sayed, JJ ordered the State Government to demolish all such structures that have been identified as “illegal” by the year end. The Court was hearing a PIL which sought implementation of a 2009 Supreme Court order which said that the State must demolish or regularise illegal shrines.
The Bench stated that Article 25 of the Constitution, which pertains to practise and propagation of religion, does not confer the right to offer worship at any place which has been built illegally. The Bench also made reference to the Supreme Court ruling in Sodan Singh v. NDMC,  (1989) 4 SCC 155, wherein the Court had expressly stated that no one can create any unreasonable obstruction on the road, which may cause inconvenience to other persons having a similar right to pass. The Court reiterated that structures that cause inconvenience to public, violate Article 21 of the Constitution.
No religion encourages its followers to construct illegal shrines or offer prayers at illegally-constructed shrines, the Court stated and thereby directed the government to initiate criminal action against people, especially religious or political leaders, who try to obstruct the demolition. The Court also asked the Police Commissioners of Mumbai and other cities to provide adequate protection to the civic staff during the demolition. [Mahesh Vijay Bedekar v. State of Maharashtra, Public Interest Litigation No. 173 of 2010, decided on 16th August, 2016]

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Competent Authority under Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 should be a person who is holding or has held a Judicial Office

Supreme Court: Interpreting the provisions of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (PMP Act), the Court said that the definition “Corporation” is wide enough to take within its sweep entities in private sector as well. Considering the nature of activity where entities in private sector are encouraged to participate, it would be incorrect to put any restricted meaning as regards the expression “Corporation”. This definition is designedly kept wide enough to include all such possibilities and there is no reason for giving any restricted meaning to such expression.

Regarding the contention that “Competent Authority” is given wide ranging powers under Section 5 of the PMP Act, the Court said that a person who occupies the position of Competent Authority under the PMP Act must evoke and enjoy public confidence. Neither the Act nor the Rules framed thereunder deal with the qualifications required of a person before his appointment as Competent Authority nor do they deal with any transparent process for such appointment. Stating that like the PMP Act, the Metro Railway (Construction of Works) Act, 1978 also confers power upon the Competent Authority therein to consider objections to the construction of the Metro Railway or any other work and to determine the amount payable for acquisition, the Court noticed that the Competent Authority under the provisions of the PMP Act must also be someone who is holding or has held a Judicial Office not lower in rank than that of a Subordinate Judge or is a trained legal mind as is the case under the Metro Act . If such requirement is not read into and not taken as an integral and essential qualification before appointment of any person as Competent Authority, the provisions in that behalf will not be consistent with the doctrine of fairness under Article 14 of the Constitution of India.

The bench of V. Gopala Gowda and U.U. Lalit, JJ, however, clarified that the actions taken by the Competent Authority till now, will not in any way stand impaired or be invalidated purely on this count. But the Central Government should step in immediately and remedy the situation with appropriate measures. [Laljibhai Kadvabhai Savaliya v. State of Gujarat, CIVIL APPEAL NO. 10019 OF 2016, decided on 05.10.2016]

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Lt. Governor to convene another meeting today to discuss the steps to be taken to curb the rise in dengue and chikungunya cases in Delhi

Supreme Court: In the matter relating to problems faced by the people of Delhi due to dengue and chikungunya, the Lt. Governor, after convening a meeting on 05.10.2016, will convene another meeting today at 5:30 and the following points will be discussed by the partcipants:

  • 15 areas of concern that learned amicus says he has culled out from the affidavits that have been filed and are on record.
  • If there are any additional areas of concern, the participants in the meeting will identify those areas and suggest ways and means to remove the problems including any problems that may arise in the 15 areas identified by learned amicus.
  • Steps to be taken for preventing recurrence of the problems faced by the people of Delhi this year due to vector-borne diseases as also preventive steps for any contingency that may arise in the near future.
  • Effective ways to have the garbage cleared so that standards of sanitation and hygiene are maintained in and around Delhi

Stating that the efforts by the participants should be consultative, collaborative and cooperative, the bench said that they should keep the interests of the people of Delhi in mind and look out at the entire exercise in a positive manner and think about the future rather than the past. The Court asked the participants to arrive at a time-frame within which all necessary steps will be taken and who will be responsible for their implementation.

The Chief Minister of Delhi, the Health Minister, Commissioner of South Delhi Municipal Corporation, Commissioner of East Delhi Municipal Corporation, Commissioner of North Delhi Municipal Corporation, Chairman of the New Delhi Municipal Corporation, Chairman of the Delhi Metro Rail Corporation, General Manager of the Northern Railway, Chief Secretary of Delhi, Union Health Secretary, the Vice-chairman of the Delhi Development Authority and the Chief Executive Officer – Delhi Cantonment Board will be participating in the meeting. [In Re Outrage as Parents End Life after Child’s Dengue Death, SMW (C) No. 1/2015, decided on 06.10.2016]

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Government liable to indemnify motor vehicle owners in case of accident, on account of its welfare State liability

High Court of Kerala: In a path-breaking decision a Division Bench comprising of   C .T. Ravikumar and K. P. Jyothindranath, JJ.,while answering a vital question related to State’s liability to indemnify in motor vehicle accident claim cases held that the government is under a welfare State liability to compensate for the death or injury caused to a vehicle owner during an accident as the road tax is levied by the government.

The case relates to a motor vehicle accident claim  where the claimants are the legal heirs of the deceased  pillion rider, who happened to be the owner of the vehicle. The petition was filed  for compensation against the bike rider as well as against the National Insurance Co. Ltd as the vehicle involved in the accident was insured with the abovementioned company. The Tribunal dismissed the claimants’ petition  holding that the deceased was not the third party but the insured  owner and hence the claimants are not entitled to any compensation from the insurance company as they claimed as the insured owner and not as a third party.

The major issue that arose for consideration before the Court was whether there exists any liability on part of the bike rider, which the Court answering in the negative held that there does not exist any tortious liability based on either vicarious or strict liability principle as there exists no relationship between the bike rider and deceased apart from that of entrustment. The claimants are entitled to compensation  in a legal fiction as if stepping into the shoes of the deceased, who being the owner of the vehicle has no right to claim compensation from the bike rider.

The Court further held in relation to the claims moved against the insurance company  involving Sections 140 and 163-A of the Motor Vehicles Act that the claimant will be entitled for compensation irrespective of the fact whether his fault or not, caused the accident, or under the fault liability, only if they are the third party and not the owner-insured as the owner-insured  cannot be regarded as the third party being one of the two parties to the contract of insurance. Perusing the contentions and the relevant material on this point, the Court further opined that if the owner-insured makes a payment of additional premium towards the policy then he is entitled to  claim compensation  before the Tribunal when he sustained a personal injury and thus directed the insurance company to pay Rs.1,00,000 to the claimants, to be apportioned among the claimants in equal shares along with 8% interest from the date of petition till payment.

The Court also made  significant observations  relying on  Manjusri Raha  v. B.L.Gupta (1977) 2 SCC 174 : (1977) 2 SCR 944 and Motor Owners’ Insurance Company Limited v. Jadavji Keshavji Modi,(1981) 4 SCC 660 ( AIR 1981 SC 2059), that the government is responsible to pay compensation to the deceased or the victim’s dependent or the owner of the harmed vehicle as the roads on which the vehicle run are provided and maintained by the government. Considering the increased number of road accidents beyond believable limit the Court pointed out that since the motor vehicle act does not consider the personal injury claim hence under these  circumstances, there will be a welfare state liability on the government, which will partially eclipse the maxim volunti non fit injuria and fault liability theory. Partially allowing the appeal with cost, the Court   stated that  the liability of the government being limited, it can be enforced in cases of accidents occurring on public roads where road tax is levied by the Government. Such compensation can be paid by the government either directly or assign the burden to the insurance companies by statutorily making the company liable. The Court suggested that such a mechanism whereby the government/insurer will be liable  for a fixed sum, as in the case of Section 140 of the Motor Vehicles Act  payable to the owner in case of injury/death, is the need of the day. [L. Mini v. Gireeshkumar, 2016 SCC OnLine Ker 16781, decided on  September 2, 2016]

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Mere allegation of fraud simplicitor may not be a ground to nullify the effect of arbitration agreement between the parties

Supreme Court: Explaining the scope of Section 8 of the Arbitration and Conciliation Act, 1996, the bench of Dr. A.K. Sikri and D.Y. Chandrachud, JJ held that mere allegation of fraud simplicitor may not be a ground to nullify the effect of arbitration agreement between the parties. Where there are simple allegations of fraud touching upon the internal affairs of the party inter se and it has no implication in the public domain, the arbitration clause need not be avoided and the parties can be relegated to arbitration.

The Court further explained that it is only in those cases where the Court finds that there are very serious allegations of fraud which make a virtual case of criminal offence or where allegations of fraud are so complicated that it becomes absolutely essential that such complex issues can be decided only by civil court on the appreciation of the voluminous evidence that needs to be produced, the Court can sidetrack the agreement by dismissing application under Section 8 and proceed with the suit on merits. It can be so done also in those cases where there are serious allegations of forgery/fabrication of documents in support of the plea of fraud or where fraud is alleged against the arbitration provision itself or is of such a nature that permeates the entire contract, including the agreement to arbitrate, meaning thereby in those cases where fraud goes to the validity of the contract itself of the entire contract which contains the arbitration clause or the validity of the arbitration clause itself.

It was, hence, said that while dealing with an application under Section 8 of the Act, the focus of the Court has to be on the question as to whether jurisdiction of the Court has been ousted instead of focusing on the issue as to whether the Court has jurisdiction or not. It has to be kept in mind that insofar as the statutory scheme of the Act is concerned, it does not specifically exclude any category of cases as non-arbitrable. Such categories of non-arbitrable subjects such as disputes relating to rights and liabilities which give rise to or arise out of criminal offences; matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights and child custody; Insolvency and winding up; etc., are carved out by the Courts, keeping in mind the principle of common law that certain disputes which are of public nature, etc. are not capable of adjudication and settlement by arbitration and for resolution of such disputes, Courts are better suited than a private forum of arbitration.

D.Y. Chandrachud, J added that the Arbitration and Conciliation Act, 1996, should be interpreted so as to bring in line the principles underlying its interpretation in a manner that is consistent with prevailing approaches in the common law world. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration. Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but part of that evolution. Minimising the intervention of courts is again a recognition of the same principle. [A. Ayyasamy v. A. Paramasivam, CIVIL APPEAL NOS. 8245-8246 OF 2016, decided on 04.10.2016]

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Karnataka, Tamil Nadu, and Kerala and the Union Territory of Puducherry to nominate representative for constitution of Cauvery Management Board by tomorrow

Supreme Court: With regard to the constitution of the “Cauvery Management Board”, the Court directed the States of Karnataka, Tamil Nadu, and Kerala and the Union Territory of Puducherry to nominate their respective representatives as per the final order passed by the Cauvery Water Disputes Tribunal on or before 4.00 p.m. tomorrow i.e. 01.10.2016. The Court also directed that the Board should submit a report on ground reality of the situation.

Coming down heavily upon the State of Karnataka, the Court said that all authorities in the territory of India are bound to act in aid of the Supreme Court and also, if required, render assistance and aid for implementation of the order/s of this Court, but, unfortunately, the State of Karnataka is flouting the order and, in fact, creating a situation where the majesty of law is dented. The bench of Dipak Misra and U.U. Lalit, JJ said that they would have proceeded to have taken steps for strict compliance of the order, but will refrain to do so as they are directing the Cauvery Management Board to study the ground reality.

The Court directed the State of Karnataka to release 6000 cusecs of water despite the resolution passed by the Joint Houses of State Legislature of the State of Karnataka from 01.10.2016 to 06.10.2016 i.e. the next date of hearing. The Court said that it is granting this opportunity as the last chance and that the State of Karnataka, being a part of the federal structure of this country, should rise to the occasion and should not bent upon maintaining an obstinate stand of defiance, for one knows not when the wrath of law shall fall on one. [State of Tamil Nadu v. State of Karnataka, I.A. No.15 in I.A. No.16 in I.A. No.12 in I.A. No.10 in Civil Appeal No.2456/2007, decided on 30.09.2016]

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Charges of anti-competitive practices against realty firm Bestech India Pvt. Ltd., dismissed

Competition Commission of India (CCI): Charges of anti-competitive practices leveled against Gurgaon-based realty firm Bestech India Pvt. Ltd. has been dismissed by CCI as the Commission observed that Bestech India was not in a dominant position in the relevant market and no cogent material evidence was provided to substantiate the allegations. The said order was passed by the Commission while hearing an information vide which it was alleged that Bestech India was imposing unfair and discriminatory conditions on buyers of office space at its cyber complex in Gurgaon. It was also alleged that the company not only failed to deliver the possession of a flat booked by the informant in due time but and also unilaterally cancelled the allotment and forfeited the amount paid. Allegations of luring customers with false offers by similar terms and condition in the buyer’s agreements were also leveled against Bestech India in the information. After perusal of material on record and hearing both the parties, Commission noted, “The presence of a large number of players with projects of varying magnitude acts as a competitive restraint upon OP from acting independently of the market forces in the relevant market. Thus, OP does not appear to be dominant in the relevant market. In the absence of dominance, the Commission is of the view that, no case of contravention of Section 4 of the Act is made out against OP in the present case.” Regarding the terms and conditions in the flat buyers’ agreement, Commission observed that, “Even though the Informant has alleged existence of an arrangement amongst the real estate developers in relation to stipulation of similar terms and conditions in the flat buyers’ agreement/ application form for booking flats, no cogent material evidences have been provided to substantiate the allegations.” While rejecting the allegations against Bestech India, CIC added that similar terms and conditions in the flat buyer agreement and other similar practices by the real estate developers may be common industry practices, not necessarily because of arrangement or understanding amongst the real estate developers. [Sameer Agarwal v. Bestech India Pvt. Ltd., Case No. 59 of 2016, decided on September 6, 2016]

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Workman is entitled to approach the Labour Court, if the VRS does not specifically provide for lay-off compensation

Supreme Court: Interpreting the provisions of Sections 33C(2) of the Industrial Disputes Act, 1947 vis-à-vis a Voluntary Retirement Scheme framed by the State of Andhra Pradesh, the Court said that though there is cessation of relationship between the employee and the employer in VRS but if it does not cover the past dues like lay-off compensation, subsistence allowance, etc., the workman would be entitled to approach the Labour Court under Section 33C(2) of the Act.

Explaining the position of law, the Court said that if the VRS had mentioned about the lay-off compensation, needless to say, the claim would have been covered and the amount received by the workmen would have been deemed to have been covered the quantum of lay-off compensation. If it is specifically covered, or the language of VRS would show that it covers the claim under the scheme, no forum will have any jurisdiction. However, on a perusal of the VRS framed by the State of Andhra Pradesh, the Court noticed that it did not deal with the lay-off compensation and hence, said that the workmen is entitled to approach the Labour Court.

The 3-judge bench of Dipak Misra, V. Gopala Gowda and Kurian Joseph, JJ was deciding the reference made by the 2-judge bench in an appeal from the decision of the Andhra Pradesh High Court where it was held that once the workmen had availed the Voluntary Retirement Scheme and received the special compensation package, they could not have put forth a claim for lay-off compensation under Section 33C(2) of the Act. [A. Satyanarayana Reddy v. Presiding Officer, Labour Court, CIVIL APPEAL NO. 3053 OF 2008, decided on 30.09.2016]

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Liquor ban in Bihar quashed as punishments imposed for violations unreasonable and draconian, and cannot be justified in civilized society

Patna High Court: Stating that the punishments imposed in respect of the Liquor ban in the State of Bihar by way of the amendment to the Bihar Excise Act, 1915 are quite unreasonable and draconian and cannot be justified in a civilized society, the bench of Iqbal Ahmed Ansari, CJ and Navaniti Prasad Singh, J quashed the law imposing liquor ban in the State of Bihar.

The Court noticed that the punishment for any offence has been prescribed as not less than 10 years, which may extend to imprisonment for life and with fine, which shall not be less than Rs. one lakh, but may extend to Rs. 10 lakhs and that it totally takes away the discretion of the Court to give a lesser sentence depending upon the mitigating circumstances.  Explaining it by way of an example the Court said that if a humble rickshaw-puller found with only a bottle or a pouch of country liquor would, now, be exposed to minimum of 10 years of imprisonment with a fine of Rs. one lakh, an amount, which he had ever never possessed or seen.

On the question that whether the right to drink alcohol is a fundamental right, the bench gave different views. Navaniti Prasad Singh, J was of the opinion that State cannot dictate what a personwill eat and what he will drink and that right to drink alcohol, like a responsible citizen, is a part of right to privacy included under Article 21 of the Constitution. He said that a citizen has a right to enjoy his liquor within the confines of his house in an orderly fashion and that right would be a part of right of privacy, a fundamental right, under Article 21 of the Constitution and, any deprivation thereof would have to withstand the test of Articles 14 and 19 of the Constitution as well. If the State starts dictating a citizen what to drink or what not to drink, though the same is not per se injurious to health, it would be a direct intrusion on personal liberty affecting meaningful life. It would be violation of personal liberty guaranteed by the Constitution.

Iqbal Ahmed Ansari, CJ, however, disagreed and held that when the Legislature of a State makes the Directive Principles applicable in the governance of the State, one cannot be heard to complain that the Directive Principles are violating the fundamental rights. Had the Directive Principles been violating fundamental rights, the Directive Principles could not have been made, and would not have been incorporated, in our Constitution by the Constitution-makers as fundamental principles of governance of the States. He added that though what one will eat or what one will drink is his decision, the fact remains that when the Directive Principles of State Policy requires the State to make endeavour to bring about prohibition, it logically follows that merely because the State is making the endeavour to bring about prohibition, one cannot claim that he has a fundamental and indefeasible right to continue to consume liquor or alcohol or intoxicating drinks or intoxicating drugs. When the right to consume intoxicating drink cannot be claimed as a fundamental right, an intrusion into this right, if, otherwise, legally valid, cannot be resisted by saying that it is one’s right to privacy, which is infringed or violated. If the right to consume intoxicating drink is held to be a fundamental right, one would be justified in saying that this right cannot be taken away or infringed by imposing total prohibition. [Confederation of Indian Alcoholic Beverage Companies v. State of Bihar, Civil Writ Jurisdiction Case No.6675 of 2016, decided on 30.09.2016]

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Any female having a legal right of residence in the building is entitled to seek eviction of the tenant for her need

Supreme Court: In a matter relating to eviction of the tenant, the bench of J. Chelameswar and Abhay Manohar Sapre, JJ held that any female, if she is having a legal right of residence in the building, is entitled to seek eviction of the tenant from such building for her need.

In the case the landlady of a shop had asked the tenant to vacate the property on account that her daughter, who had a clinic adjacent to the concerned shop, wanted to expand her clinic as the area of the existing shop was inadequate to run a clinic. The Tenant, however, contended that the need of the appellant was not bona-fide as the appellant’s daughter was not a member of family as defined under Section 3(g) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 because she is a married daughter whereas Section 3(g)(iii) include only an “unmarried daughter”. The Allahabad High Court had overturned the ruling of the Prescribed Authority/Civil Judge and the first appellate court and had held that the daughter was not a family member under the Act.

The Court, rejected the said contention of the tenant and held that the inclusive part of the definition under Section 3(g) of the Act, which is enacted only for the benefit of “female” in relation to the landlord, adds one more category of person in addition to those specified in clauses (i) to (iii), namely, “any female having a legal right of residence in that building”. In other words, in order to claim the benefit of expression “family”, a female must have a “legal right of residence” in the building.

Considering the fact that appellant’s husband, the original owner of the property in question, died intestate and on his death, the appellant, two sons and four daughters inherited the estate left by Dr. Ahsan Ahmad, which included the building, the Court said that the appellant’s daughter was a family member under the Act and hence, the appellant’s need was bona-fide. [Gulshera Khanam v. Aftab Ahmad, CIVIL APPEAL No. 9727 OF 2016, decided on 27.09.2016]

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Finance Ministry invites suggestions on Committee Report & the Draft Financial Resolution and Deposit Insurance Bill, 2016

Finance Ministry invites comments/suggestions from stakeholders by October 14, 2016 on the Report & Draft FRDI Bill 

The Finance Minster Shri Arun Jaitley in Para 90 of his Budget Speech 2016-17, had announced:
“A systemic vacuum exists with regard to bankruptcy situations in financial firms. A comprehensive Code on Resolution of Financial Firms will be introduced as a Bill in  Parliament during 2016-17. This Code will provide a specialised resolution mechanism to deal with bankruptcy situations in banks, insurance companies and financial sector entities. This Code, together with the Insolvency and Bankruptcy Code, 2015, when enacted, will provide a comprehensive resolution mechanism for our economy”.
Pursuant to the above budget announcement, a Committee was set-up under the Chairmanship of Shri Ajay Tyagi, Additional Secretary, Department of Economic Affairs, Ministry of Finance on 15th March 2016 with representatives from the Ministry of Finance, the financial sector regulatory authorities and the Deposit Insurance and Credit Guarantee Corporation with instructions to submit a Report and a draft Code.
The Committee has submitted its Report and a Draft Bill known as ‘The Financial Resolution and Deposit Insurance Bill, 2016’.  A copy of the Report of the Committee and the Draft Bill along with an explanatory note explaining the key legal provisions of the Bill are hosted on the home page of the Ministry of Finance at >www. finmin.nic.in<.
All stakeholders concerned/public are requested to forward comments/suggestions that they may wish to submit on the Draft Bill  by  14th October 2016  by e-mail to  > parveen.k63@gov.in < or in hard copy to Shri Parveen Kumar, Under Secretary (FSLRC), Department of Economic Affairs, Ministry of Finance, Room No. 48, North Block, New Delhi-110001. The decision of the Government with respect to the Report and the Draft Bill will be taken later after receipt of public/stakeholders comments and after following due procedure thereafter.

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Spilt decision over conviction of accused for abetment when the charges of conspiracy under Section 120B IPC have failed

Supreme Court: The bench of V. Gopala Gowda and Arun Mishra, JJ gave a split decision on the question as to whether a person can be convicted under Section 109 IPC for abetment if the charges of conspiracy under Section 120B IPC fail.

As per V. Gopala Gowda, J, for Section 109 of IPC, it is not enough to show a conspiracy as it has to be taken a step further. He said that it needs to be proved that an act is committed in furtherance of that conspiracy. Once the charge under Section 120B of IPC falls, in order to convict the accused under Section 302 read with Section 109 IPC, or Section 365 read with Section 109 IPC, what is needed to be established is the happening of some overt act on the part of the accused.

However, on the other hand, Arun Mishra, J disagreed with the abovementioned view and said that under section 109 IPC, the abettor is liable to the same punishment which may be inflicted on the principal offender if the act of the latter is committed in consequence of the abetment. The offence of conspiracy under section 120B IPC is different. Section 120A is bare agreement to commit an offence which has been made punishable under section 120B. The punishment for these two categories of crimes is also quite different. Section 109 IPC is concerned only with punishment of abetment for which no express provision has been made in the IPC. An offence of criminal conspiracy on the other hand is an independent offence which is made punishable under section 120B IPC for which a charge under section 109 is unnecessary and inappropriate. He, hence, said that when charge under section 109 IPC has been found established, mere acquittal under section 120B is of no avail to the accused. Charges which were framed were specific ingredients of section 109 IPC and the acquittal under section 120B of IPC cannot help the accused as offences of both sections are separate. [Somasundaram v. State, CRIMINAL APPEAL NO. 403 OF 2010, decided on 28.09.2016]

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Parents of a married officer not entitled to receive the pension amount as per the the Family Pension Scheme, 1964

Supreme Court: In the matter where the widow of a Government Employee aggrieved by the order of the High Court of Punjab & Haryana at Chandigarh where it was directed that 50% of the pension be paid to the mother of the Government Employee, the Court set aside the impugned order and held that the parents of a married officer are not entitled to receive the pension amount as per the the Family Pension Scheme, 1964.

The bench of A.R. Dave and L. Nageswara Rao, JJ took note of the Scheme and said that the mother of the deceased is not included in the definition of the term “family” for the reason that as per the provisions of sub-clause (f), parents of an unmarried officer would be a part of the family.

Explaining the difference between the position of law under the Hindu Succession Act, 1956 and the Family Pension Scheme, the Court said that as far as the Succession Law is concerned, it is true that the properties of a Hindu, who dies intestate would first of all go to the persons enumerated in class I of the schedule as per the provisions of Section 8 of the said Act and therefore and hence, the properties of the deceased in the case at hand would be divided among the respondent mother and the appellant wife, provided there is no other family member alive, who would fall within class 1 heirs, but position in this case, with regard to pension, is different.

The Court said that it is pertinent to note that in this case the pension is to be given under the provisions of the Scheme and therefore, only the person who is entitled to get the pension as per the Scheme would get it. The Court, hence, directed that the full amount of pension be paid to the widow of the Government employee. [Nitu v. Sheela Rani, CIVIL APPEAL NO.9823 OF 2016, decided on 28.09.2016]

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Legal remedy in property dispute cannot be sought in the guise of domestic violence

Madras High Court: Deciding the question that arose for consideration, the Court held that a complaint lodged under the Domestic Violence Act would amount to an abuse of process of law in case it is filed as a legal remedy to claim right over property. A Single Bench comprising of S. Vimala, J. quashed the impugned order D.V.O.P No. 10 of 2015 of the learned Judicial Magistrate, Dindigul as illegal relying on the contentions of the counsel for the petitioner that the complaint filed by the respondent was not maintainable as it did not disclose any act of domestic violence as contemplated under the said Act and the respondent was not residing in the property as a shared household but rather as a tenant .
The Court observed that a dispute regarding property rights needs to be resolved by a civil court and if it is given the colour of domestic violence, then it is a case of abuse of the process of law and it needs to be quashed. The Court further observed that instead of establishing the rights in the civil court if a complaint is filed under the Domestic Violence Act as an outcome of personal animosity, grudge and only to extract money then such complaint is not maintainable under the Act and has to be quashed. [B. Sakunthala v. Vasantha2016 SCC OnLine Mad 9109, decided on September 7, 2016]

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Assaulting wife under state of intoxication constitutes cruelty for grant of decree of divorce

Chhattisgarh High Court: While judging the legality and validity of the decision of the Family Court, Bilaspur, which issued a decree of divorce and annulled the marriage on ground that if a husband consumes liquor and assaults his wife and her parents in such state would be reasonable enough to constitute cruelty, the Division Bench  comprising of Prashant Kumar Mishra and Chandra Bhushan Bajpai, JJ. upholding the judgement of the Family Court dismissed the appeal on the ground that the trail court has not committed any illegality in granting decree of divorce on ground of mental cruelty . The Court held that assaulting wife in a state of intoxication and creating nuisance at her work place would amount to cruelty for obtaining a decree of divorce.

While interpreting Section 13(1)(i-a) of the Hindu Marriage Act, 1955 the Court relied on several decisions of the Supreme Court in V. Bhagat v. D. Bhagat(1994) 1 SCC 337Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan(1981) 4 SCC 250Savitri Pandey v. Prem Chandra Pandey(2002) 2 SCC 73Gananath Pattnaik v. State of Orissa(2002) 2 SCC 619Parveen Mehta v.Inderjit Mehta(2002) 5 SCC 706 and Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, wherein it was held that mental cruelty constitutes a conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. The Court further observed that in cases of mental cruelty it is not necessary to prove that any physical injury is caused to the health of the party claiming cruelty.
The Court further stated that there is no straitjacket formula or any exhaustive list of instances which points out that when cruelty is said to be committed by one or the other party to the marriage rather it is a matter to be decided in each case having regards to the facts and circumstances of that case.  [Anindi Mukharjee v. Shraboni2016 SCC OnLine Chh 1251, decided on September 15, 2016]

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Once the statutory period for preferring appeal against divorce expires, a party can go for second marriage without any legal hassles

Patna High Court: While answering a plethora of important questions regarding the sustainability of a decree for judicial seperation, the Division Bench of I.A. Ansari, C.J., and Nilu Agarwal, J., observed that a decree of judicial separation only lays down the foundation for making an application for the grant of divorce and does not entitle one to a decree of dissolution unless the statutory grounds under Section 13 of the Hindu Marriage Act, 1955 are satisfied. The Bench further observed that unless a decree of divorce is not challenged in appeal, such a decree subsists and once the statutory period for preferring an appeal expires, a party can then go for a second marriage without any legal hassles.
In the present case, the petitioner had applied for divorce on grounds of cruelty and desertion; however after several failed attempts for reconciliation a decree for judicial separation was passed by the  Family Court concerned . Afterwards the petitioner again sought a decree for divorce when there was no resumption of cohabitation between the parties for 1 year after the aforementioned decree for judicial separation. This time however, the respondent abstained from attending the proceedings and as a result an ex parte divorce decree was passed. The petitioner solemnised his second marriage after the statutory limitation period for filing an appeal against the divorce decree expired. The aggrieved respondent filed a suit to set aside the ex parte decree which was accepted by the  court concerned .  The petitioner thus filed this present petition to review the aforementioned decision on the ground that the Court concerned had ignored the fact that the limitation period for preferring an appeal against the divorce decree had already expired.
Considering the facts of the case, the Court delved at length upon the principles of review and appeal, and observed that a Court’s power to review is a statutory power and can be used in exceptional cases. Further perusing Section 13(1-A) of the Hindu Marriage Act, it was observed by the Court that a party seeking to set aside the decree of judicial separation, (there is no order to a stay of the decree of judicial separation in this duration) has to prove the non-resumption of cohabitation for 1 year or more and if proved, the decree for divorce can be granted. In the present case, the petitioner being married and having fathered two children from his second wife, the Court cannot ignore the interest of the third party. The Court held that the petitioner’s second marriage is not a nullity even when the ex parte divorce decree had been set aside as the second marriage very well took place after the divorce decree was granted and statutory period of appeal expired. [Rajesh Kumar v. Pushpa Rani, 2016 SCC OnLine Pat 4639 , decided on 16.09.2016]

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System of holding sterilization camps should be halted in order to strengthen the Primary Health Care centres across the country

Supreme Court: In the matter highlighting the important issues concerning the entire range of conduct and management of sterilization procedures wherein women and occasionally men are sterilized in camps or in accredited centres, the Court directed the Union of India to ensure strict adherence to the guidelines and standard operating procedures in the various manuals issued by it. The Sterilization program is not only a Public Health issue but a national campaign for Population Control and Family Planning. The Court said that the Union of India has overarching responsibility for the success of the campaign and it cannot shift the burden of implementation entirely on the State Governments and Union Territories on the ground that it is only a public health issue.

Expressing sadness at the fact that the National Health Policy, 2015 has not yet been finalized despite the passage of more than one and a half years, the bench of Madan B. Lokur and U.U. Lalit, JJ directed the Union of India to take a decision on or before 31st December, 2016 on whether it would like to frame a National Health Policy or not. In case the Union of India thinks it worthwhile to have a National Health Policy, it should take steps to announce it at the earliest and keep issues of gender equity in mind as well.

In order to ensure that the proposed patient has given an informed consent for undergoing the sterilization procedure and not an incentivized consent, the Court said that the contents of the checklist prepared pursuant to the directions given in Ramakant Rai (I) v. Union of India, (2009) 16 SCC 565, should be explained to the proposed patient in a language that he or she understands and the proposed patient should also be explained the impact and consequences of the sterilization procedure. The said checklist should be prepared in the local language of the concerned State. Also, sufficient breathing time of about an hour or so should be given to a proposed patient so that in the event he or she has a second thought, time is available for a change of mind

Considering that as many as 363 deaths have taken place due to sterilization procedures during 2010-2013, the Annual Report prepared by the Quality Assurance Committee must indicate the details of all inquiries held and remedial steps taken as there is a need for transparency coupled with accountability and the death of a patient should not be treated as a one-off aberration.

The Court also directed the Union of India to persuade the State Governments to halt the system of holding sterilization camps as has been done by at least four States across the country. In any event, the Union of India should adhere to its view that sterilization camps will be stopped within a period of three years. This will necessitate simultaneous strengthening of the Primary Health Care centres across the country both in terms of infrastructure and otherwise so that health care is made available to all persons.

Pained by the casual approach of certain States, the Court directed the Registry of this Court to transmit a copy of this judgment to the Registrar General of the High Court in the States of Madhya Pradesh, Maharashtra, Rajasthan and Kerala for being placed before the Chief Justice of the High Court and requested the Chief Justice to initiate a suo moto public interest petition to consider the allegations made in respect of the sterilization camp(s) held in these States (the allegations not having been specifically denied) and any other similar laxity or unfortunate mishap that might be brought to the notice of the Court and pass appropriate orders thereon. [Devika Biswas v. Union of India, 2016 SCC OnLine SC 936, decided on 14.09.2016]

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Cauvery Water dispute: Order directing State of Karnataka to release 15000 cusecs of water, modified

Supreme Court: In the Cauvery Water Dispute, the bench of Dipak Misra and U.U. Lalit, JJ modified it’s order dated 05.09.2016 and directed the State of Karnataka to release 12000 cusecs of water per day and said that the direction, shall remain in force till 20th September, 2016. The Court had earlier ordered the State of Karnataka to release 15000 cusecs of water in the interest of farmers of the State of Tamil Nadu.

It was highlighted by Fali S. Nariman that in the State of Tamil Nadu, there is need of water as there is less of drinking water and the suffering of the farmers are immense. However, it was also highlighted that the State of Karnataka is facing enormous difficulty with regard to the water situation.

The Court took up the matter urgently because of the because of the spontaneous agitations in the various parts of Karnataka in the Cauvery basis which has paralysed the normal life besides destroying the public and private properties. The Court termed such activities to be absolutely disturbing and totally depreciable. It was said that agitation in spontaneity or propelled by some motivation or galvanized by any kind of catalystic component, can never form the foundation for seeking modification of an order. The citizens cannot become law unto themselves. When a court of law passes an order, it is the sacred duty of the citizens to obey the same. If there is any grievance, they are obligated under the law to take recourse to permissible legal remedies.

The Court, listing the matter on 20.09.2016, asked the inhabitants of both the States, namely, the State of Karnataka and State of Tamil Nadu to behave regard being had to the respect for law and order and the Executive of both the States are under the constitutional obligation to see that the law and order prevails. [State of Tamil Nadu v. State of Karnataka, 2016 SCC OnLine SC 932, decided on 12.09.2016]

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PIL challenging the Centre’s policy to allow private bank officials to be appointed as Managing Directors or CEOs of public sector banks, dismissed

Supreme Court: The 3-judge bench of T.S. Thakur, CJ and A.M. Khanwilkar and D.Y. Chandrachud, JJ dismissed the PIL challenging the Centre’s policy to allow private bank officials to be appointed as Managing Directors or CEOs of public sector banks.

It was contended that only whole-time directors of public sector banks, whose names are cleared by the Central Vigilance Commission, can be appointed to head public sector banks and that eligibility criteria for the posts of CEO and MD of the five banks have been set with a sole objective to make all existing executives directors of Public Sector Banks ineligible.

The Court rejected the said petition and said that there was nothing wrong with such appointments.

Source: Business Standard

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Ruchika Girhotra Case: S.P.S. Rathore’s conviction upheld; sentence mitigated due to old age CASE BRIEFSSUPREME COURT

Supreme Court: In the Ruchika Girhotra case, the Court reduce the sentence of S.P.S. Rathore to the period already undergone by him as a special case considering his very advanced age. The Court upheld the findings as to the guilt of the appellant-accused, however, it was held that the cause of justice would be best sub-served when the sentence of the appellant-accused would be altered to the period already undergone. The counsel for the appellant had pointed out the mitigating factors i.e. old age of the appellant-accused, health ailments, responsibility of looking after the unmarried daughter suffering from congenital heart disease, past meritorious service and prolonged trial.

The appellant, IG of Police and also the founder of the Haryana Lawn Tennis Association (HLTA) was accused of molesting 15-year old Ruchika, the deceased who later committed suicide by consuming poison. The deceased had got herself enrolled as members of HLTA and the accused molested her in his office. Aradhana, the deceased’s friend was an eye witness. Relying upon her testimony, the Court said that she, being the sole witness to prove the actus reus, her evidence should receive some careful consideration and there is no reason for her to depose falsely against the appellant. The occurrence of the overt act is well proved by the unimpeachable testimony of the eye-witness.

Regarding the non-examination of two important site witnesses i.e. the ball picker and the Coach, the Court said that evidence is weighed and not counted. Evidence of even a single eye witness, truthful, consistent and inspiring confidence is sufficient for maintaining conviction. It is not necessary that all those persons who were present at the spot must be examined by the prosecution in order to prove the guilt of the accused. Having examined all the witnesses, even if other persons present nearby not examined, the evidence of eye-witness cannot be discarded.

With regard to the delay of about 6 days in presenting the complaint to the SHO, the Court said that in a tradition-bound non-permissive society in India, it would be extremely reluctant to admit that any incident which is likely to reflect upon chastity of a woman had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. The decision of the victim of not informing about the incident to the parents under the circumstances that the appellant was a very senior police officer of the State, was reasonable and it would not have been an easy decision for her to speak out.

The bench of V. Gopala Gowda and R.K. Agrawal, JJ said that the High Court, on proper re-appreciation of the entire evidence, came to the right conclusion that the prosecution was successful in proving the case beyond reasonable doubt and the offence punishable under Section 354 of the IPC was made out. There is devastating increase in cases relating to crime against women in the world and our country is also no exception to it. Although the statutory provisions provide strict penal action against such offenders, it is for the courts to ultimately decide whether such incident has occurred or not. The courts should be more cautious in appreciating the evidence and the accused should not be left scot-free merely on flimsy grounds. [S.P.S. Rathore v. C.B.I., CRIMINAL APPEAL NO. 2126 OF 2010, decided on 23.09.2016]

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If a person fails to do something which is impossible, he cannot be held guilty of contempt

Supreme Court: In the case where the appellant was unable to produce documents before the Court as the same were destroyed due to natural calamity, the 3-judge bench of A.R. Dave, U.U. Lalit and L. Nageswara Rao, JJ, held that the appellant was not guilty of committing contempt of court as there was no willful breach of the undertaking given to the court. The Court said that It would not be fair on the part of a court to give a direction to do something which is impossible and if a person has been asked to do something which is impossible and if he fails to do so, he cannot be held guilty of contempt.

Explaining the definition of ‘civil contempt’, the Court held that so as to hold somebody guilty of contempt of court, the concerned person must have willfully disobeyed any judgment, decree, direction, order, writ or any other process of a court or should have willfully committed breach of an undertaking given to a court.

Having regard to the facts of the case where the appellant’s house was badly hit by the cyclone in the year 1999, as a result of which his house was submerged into the flood water consequent to that it was collapsed as his house was built up of mud and covered with asbestos sheets resulting most of their belongings were vanished, the Court said that it is crystal clear that the appellant had no intention of committing breach of the undertaking given to the court and that it was physically impossible for the appellant to produce the documents.

The High Court of Andhra Pradesh had held the appellant guilty of contempt of Court and had sentenced simple imprisonment for one week and a fine of Rs.2,000/-. Disagreeing with the order of the High Court, the Court said that It is deplorable that the appellant has been held guilty and has also undergone the sentence imposed by the High Court. [Gyani Chand v. State of A.P., CIVIL APPEAL NO. 5728 OF 2005, decided on 20.09.2016]

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Punishment for driving dangerously by using mobile phones while driving, inadequate

Supreme Court: In pursuance of the order dated 26.08.2016 on the issue relating to inadequate punishment under Section 304-A IPC, Mukul Rohatgi, the Attorney General submitted that Section 304-A covers all kinds of deaths by negligence and, therefore, mere providing of higher punishment may not sub-serve the cause of justice. Elaborating further, he said that when a broken wall falls and someone gets injured or a person dies, Section 304-A is also attracted.

The Attorney General also submitted that some people drive while putting their mobile phones in the ears as a consequence of which disastrous consequences take place and the effect is the person gets into misery or he causes miseries to others. It was further mentioned that sometimes, people who drive while using mobile phone are booked under Section 184 of the Motor Vehicles Act, 1988 which provides for imprisonment for a term which may extend to six months or with fine which may extend to Rs. 1000 in case of commission of offence for the first time. He submitted that the said provision is not sufficient for adequate handelling of the situation in praesenti and asked the Court to list the matter on 06.12.2016.

Showing grave concern over the vehicular accidents that extinguish the life-spark of many because of the whim and fancy, adventurism of the men at the wheel and harbouring of the notion that they are “larger than life”, the Court said that it is a matter of common knowledge that the drivers drive because of their profession but there are individuals who drive the vehicle because of their uncontrolled propensity for adventure. They really do not care for the lives of others. It can be stated with certitude that the number of vehicles in the country has increased in geometrical manner and the people are in a competition to pick up the speed.

The bench of Dipak Misra and C. Nagappan, JJ had asked the Attorney general to assist the Court and had said that Section 304-A IPC requires to have a re-look because the punishment provided therein is absolutely inadequate in the context of the modern day. [Abdul Sharif v. State of Haryana, Special Leave to Appeal (Crl.) CRL.M.P. 13513/2016, decided on 21.09.2016]

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All women, including women prisoners should have right to terminate pregnancy irrespective of reason

Bombay High Court:  In a significant order that endorses a woman’s “sole right over her own body” and her consequent right to “choose or not to choose motherhood”, a Division Bench of V.K. Tahilramani and Mridula Bhatkar, JJ has held that the scope of the Medical Termination of Pregnancy Act, 1971 should extend to the mental health of a woman and she should be allowed to opt out of an unwanted pregnancy irrespective of the reason.

In this case, the Court had taken suo motu cognizance of a news article about pregnant women prisoners who were not taken to hospitals, despite informing the jail authorities of their wish to terminate their pregnancy. The Court passed certain directions to make it easier for women prisoners to access health facilities, including the right to medical termination of pregnancy and observed that not allowing a woman to terminate her pregnancy amounts to grave injury to her mental health.

The Court further observed that pregnancy takes place within the body of a woman and has a profound impact on her health, mental well-being and life. Thus, how a woman wants to deal with this pregnancy must be a decision she, and she alone, can make.

The Court said that it is important not to lose sight of the basic right of women: the right to decide what to do with their bodies, including whether to get pregnant and stay pregnant. This right emerges from her right to live with dignity as a human being in society and protected as a fundamental right under Article 21 of the Constitution, the Court stated. (High Court on its own Motion vs. State of Maharashtra, Suo Moto Public Interest Litigation No.1 of 2016, decided on 19-09-2016)

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Wife of victim of terrorism awarded costs and held entitled to financial relief

Punjab and Haryana High Court: While deciding a petition against the inaction on part of the State Government in denying the benefit of the welfare schemes to the petitioner, whose husband died due to injuries in 1990 sustained at the hands of terrorists in 1988, the Court awarded costs of Rs 30,000 and directed the State Government to release financial help in the form of subsistence allowance along with arrears from the dates the amounts become due under the various policies till the actual dates of payment.
Late Sardar Santokh Singh succumbed to the injuries sustained during a terror attack on March 5, 1988 and was awarded Rs 10,000 during his lifetime by the then Deputy Commissioner of Amritsar for his bravery. The Superintendent of Police had recommended his case for financial relief under the welfare scheme. After his death, the petitioner’s claim was rejected by the Deputy Commissioner, Amritsar. The Bench of Rameshwar Singh Malik, J. observed that since the Deputy Commissioner, Amritsar proceeded on a wholly misconceived and perverse approach, without even considering the strong recommendations made by the Senior Superintendent of Police, the impugned order cannot be sustained. The petitioner was found and declared entitled for the financial help as per the different policies issued by the State Government of Punjab.
The Court observed that “the citizen who laid his life for the welfare of his fellow citizens, as he was made the target by the terrorists because he developed an enmity with the terrorists acting against them with a view to help the State agencies, his widow, as petitioner herein, was entitled for a special award including the minimum financial help, at the hands of the State Government. However, since the respondent authorities proceeded on an arbitrary approach, forcing the petitioner to file the present writ petition for pursuing her genuine claim, her writ petition deserves to be allowed with costs.” [Surjit Kaur v. State of Punjab, CWP No. 1557 of 2014, decided on September 8, 2016]

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The colonial legacy of mentioning the caste of accused, victim and witnesses in criminal proceedings should be shunned as a public policy

Himachal Pradesh High Court: While deciding the present case wherein the accused had been charged under Sections 452 and 302 of the Penal Code, 1860 for trespassing into the room of the victim, wrongfully restraining her and pouring kerosene oil on her when she refused to marry the accused, the Division Bench of Rajiv Sharma and Sureshwar Thakur, JJ., noted how the police in the inquest report, the statement, recovery memo and dying declaration had mentioned separately the caste of the accused and the victim. Holding the practice to be impermissible, the Court stated that the colonial legacy of mentioning the caste in the criminal proceedings should be done away with and as a public policy caste system should be shunned wholly.

The Court further observed that the Constitution guarantees a casteless and classless society, as right to live with dignity is an integral part of the Fundamental Right to Life. The Court further noted that how the Founding Fathers of the Indian Constitution had a faith that the caste system which had no scientific, intellectual and logical basis will come to an end with the passage of time, however it has still lingered on even though it is against the very basic tenets of the Constitution. The Court thereby issued directions to the Principal Secretary (Home) for the Government of Himachal Pradesh to issue instructions to the investigating officers to do away with the practice of mentioning the caste of the accused, victims and witnesses in recovery memos, FIR’s, seizure memos, inquest papers and other forms prescribed under the CrPC and Punjab Police Rules. [Krishan Kumar v. State of Himachal Pradesh, Criminal Appeal No. 297 of 2016, decided on September 16, 2016]

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Dishonour of Post-dated cheque for discharge of existing liability is covered by Section 138 of the Negotiable Instruments Act, 1881

Supreme Court: In the matter where the question as to whether the dishonour of a post-dated cheque given for repayment of loan installment which is also described as “security” in the loan agreement is covered by Section 138 of the Negotiable Instruments Act, 1881, was before the bench of Dipak Misra and A.K. Goel, JJ, it was held that the dishonour of cheque for discharge of existing liability is covered by Section 138 of the Act. The Court further explained that the question whether a post-dated cheque is for “discharge of debt or liability” depends on the nature of the transaction. If on the date of the cheque liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise.

As per the facts of the case, the loan agreement in question recorded that post-dated cheques towards payment of installment of loan (principal and interest) were given by way of security. The clause of the Agreement that came up for consideration was “The loan together with the interest, interest tax, liquidated damages, commitment fee, upfront fee prima on repayment or on redemption, costs, expenses and other monies shall be secured by deposit of Post-dated cheques towards repayment of installments of principal of loan amount in accordance with agreed repayment schedule and installments of interest payable thereon.”

Interpreting the word “security” is used in the said clause, the Court held that the said expression refers to the cheques being towards repayment of installments. The repayment becomes due under the agreement, the moment the loan is advanced and the installment falls due. Once the loan was disbursed and installments have fallen due on the date of the cheque as per the agreement, dishonour of such cheques would fall under Section 138 of the Act. [Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd., CRIMINAL APPEAL NO. 867 OF 2016, decided on 19.09.2016]

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1997 Amendment to Section 28 of Contract Act, 1872 applicable prospectively

Supreme Court: Dealing with an interesting question as to the retrospective applicability of the 1997 Amendment to Section 28 of the Contract Act, 1872, the Bench of C. Nagappan and R.F. Nariman, JJ, answered in the negative and said that Section 28 of the Contract Act, being substantive law, operates prospectively as retrospectivity is not clearly made out by its language as the Amendment does not purport to be either declaratory or clarificatory.
In the present case, the bank guarantees dated 31.1.1996 which restricted the period within which they could be invoked were in question and it was contended by the Union of India that such Bank Guarantees would not be affected by an amendment made one year later i.e. on 8.1.1997 and the relevant date and the relevant law applicable would be as on 31.1.1996, which would be the unamended Section 28. Accepting the aforementioned contention, the Court said that the unamended Section 28 would be the law applicable as on 31.1.1996, which is the date of the agreement of bank guarantee.
The Court considered the Statements of Object and Reasons of the Amendment as stated in the 97th Law Commission Report where it was stated that the Amendment seeks to bring about a substantive change in the law by stating, for the first time, that even where an agreement extinguishes the rights or discharges the liability of any party to an agreement, so as to restrict such party from enforcing his rights on the expiry of a specified period, such agreement would become void to that extent. The Amendment therefore seeks to set aside the distinction made in the case law up to date between agreements which limit the time within which remedies can be availed and agreements which do away with the right altogether in so limiting the time. The Court, hence, noticed that these are obviously substantive changes in the law which are remedial in nature and cannot have retrospective effect. [Union of India v. Indusind Bank Ltd., Civil Appeals Nos. 9087-9089 of 2016, decided on 15.09.2016]

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Man guilty of sexually abusing and murdering a 7-year-old girl to undergo life imprisonment of 25 years

Supreme Court: In the matter where the appellant was found guilty of committing the murder of a minor girl, aged about seven years and also of kidnapping and subjecting her to sexual abuse on her and for destruction of evidence relating to the crime, the 3-Judge Bench of J. Chelameswar, Shiva Kirti Singh and Abhay Manohar Sapre, JJ held that the appellant should be inflicted with imprisonment for life with a further direction that he shall not be released from prison till he completes actual period of 25 years of imprisonment.

The Court referred to the decision of this Court in Swamy Shraddananda(2) v. State of Karnataka(2008) 13 SCC 767, where it was held that life imprisonment means the whole life span of the person convicted and therefore in the facts of a case while not confirming death penalty, this Court may, while exercising its power to impose the punishment of life imprisonment, specify the period up to which the sentence of life must remain intact so as to be proportionate to the nature of the crime committed. The Court was of the opinion that the innovative approach reflected in the aforesaid judgment, on the one hand helps the convict in getting rid of death penalty in appropriate cases, on the other it takes care of genuine concerns of the victim including the society by ensuring that life imprisonment shall actually mean imprisonment for whole of the natural life or to a lesser extent as indicated by the court in the light of facts of a particular case.

Considering the fact that the deceased, a helpless child fell victim to a crime of lust at the hands of the appellant who was 27-years old at the time of commission of offence, the Court said that there may be probabilities of such crime being repeated in case the appellant is allowed to come out of the prison on completing usual period of imprisonment for life which is taken to be 14 years for certain purposes and hence, ordered that the appellant should undergo life imprisonment for the whole of his natural life i.e. 25 years of imprisonment. [Tattu Lodhi v. State of Madhya Pradesh, Criminal Appeals Nos. 292-293 of 2014, decided on 16.09.2016]

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PIL filed by Tax Bar Assn. to seek release of VAT refunds converted to a representation

Delhi High Court: In a PIL filed by the Tax Bar Association seeking the Court’s direction to the Delhi VAT department to process and release the VAT refunds due, pay interest on the delay of release of refunds and to impose exemplary damages on the VAT department for the delay in release of the refunds to all the registered dealers whose refunds have been deliberately, intentionally and without any reason have been delayed, the Court, rather than pass directions converted it into a representation before the Delhi VAT department. A similar writ, seeking similar relief had been previously dismissed.

The Bench of Rohini CJ. and Jayant Nath J. sought to know why the present petition should also not be dismissed. Petitioner Association contended that since the impugned action of the VAT department in withholding the refund to which the registered dealers were entitled to, under the provisions of the Delhi Value Added Tax Act, 2004 (DVAT Act) is ex facie illegal apart from being in violation of the law laid down by this Court in Swarn Darshan Impex (P) Ltd. v. Commissioner Trade Tax, (2010) 31 VST 475 (Del),  the Petitioner Association may be permitted to espouse the cause in the interest of the public at large. The Court directed the Commissioner of VAT, New Delhi to look into the issue and take the necessary steps for rectification of the lapses, if any, in implementation of the statutory provisions.  [Tax Bar Assn. v. Govt. of NCT of Delhi, WP (C) No.  5263 of 2016, decided on 16.09.2016]

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Man guilty of sexually abusing and murdering a 7-year-old girl to undergo life imprisonment of 25 years

Supreme Court: In the matter where the appellant was found guilty of committing the murder of a minor girl, aged about seven years and also of kidnapping and subjecting her to sexual abuse on her and for destruction of evidence relating to the crime, the 3-Judge Bench of J. Chelameswar, Shiva Kirti Singh and Abhay Manohar Sapre, JJ held that the appellant should be inflicted with imprisonment for life with a further direction that he shall not be released from prison till he completes actual period of 25 years of imprisonment.

The Court referred to the decision of this Court in Swamy Shraddananda(2) v. State of Karnataka(2008) 13 SCC 767, where it was held that life imprisonment means the whole life span of the person convicted and therefore in the facts of a case while not confirming death penalty, this Court may, while exercising its power to impose the punishment of life imprisonment, specify the period up to which the sentence of life must remain intact so as to be proportionate to the nature of the crime committed. The Court was of the opinion that the innovative approach reflected in the aforesaid judgment, on the one hand helps the convict in getting rid of death penalty in appropriate cases, on the other it takes care of genuine concerns of the victim including the society by ensuring that life imprisonment shall actually mean imprisonment for whole of the natural life or to a lesser extent as indicated by the court in the light of facts of a particular case.

Considering the fact that the deceased, a helpless child fell victim to a crime of lust at the hands of the appellant who was 27-years old at the time of commission of offence, the Court said that there may be probabilities of such crime being repeated in case the appellant is allowed to come out of the prison on completing usual period of imprisonment for life which is taken to be 14 years for certain purposes and hence, ordered that the appellant should undergo life imprisonment for the whole of his natural life i.e. 25 years of imprisonment. [Tattu Lodhi v. State of Madhya Pradesh, Criminal Appeals Nos. 292-293 of 2014, decided on 16.09.2016]

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DNA test to determine paternity cannot be ordered on mere allegation of infidelity

Delhi High Court: A division bench of Gita Mittal and I.S. Mehta JJ. evaluated a plea of legitimacy of a child by the husband against the wife. The child was born in October 2013 and the husband contended that he did not have access to his wife since the beginning of the year 2013, whereas, the wife’s contention was that the DNA test of the child cannot be made on a bald allegation of infidelity. The case revolved around the rebuttable presumption of legitimacy attached to a child born of a married woman during subsistence of marriage or within 280 days of its severance.

The High Court found from the pleadings that the husband had made categorical assertions to the paternity of the child in public records and before the family court. It is only later in the pleadings that the husband had made an equivocal/unclear allegation of infidelity. The court held such an allegation alone could not call in question the legitimacy of the child. The Court held that the standard of proof required to satisfy Section 112 of the Evidence Act, was very high and that DNA test could not be ordered on a mere allegation by one of the spouses.

The Court then enlisted established principles to be kept in a judicial mind while deciding with such cases: –

DNA Testing

  • A rebuttable presumption of legitimacy is attached to a child born of a married woman during a subsistence of marriage or within 280 days of its severance

(Section 112 of the Evidence Act; Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 para 11; Banarsi Dass v. Teeku Datta, (2005) 4 SCC 449 para 10; Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454 para 10)

  • The DNA test is not to be directed as a matter of routine. Such direction can be given only in deserving cases

(Banarsi Dass v. Teeku Datta, (2005) 4 SCC 449 para 14).

  • The court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed.

(Sharda v. Dharampal, (2003) 4 SCC 493 para 80; Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633)

  • There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.

(Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418)

  • The court would exercise discretion, only after balancing the interests of the parties and on consideration as to whether for a just decision in the matter the DNA test is imminently needed i.e. as to whether it is not possible for the court to reach the truth without use of such test. For so concluding, the court has to consider materials placed by both parties and the test shall not be ordered in routine for a roving enquiry.

Access

  • “Access” and “non-access” mean the existence or non existence of opportunities for sexual intercourse; it does not mean actual “cohabitation”

(Karapaya Servai v. Mayandi, AIR 1934 PC 49; Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418 para 24)

Burden of legitimacy

  • In a civilised society it is imperative to presume the legitimacy of a child born during continuation of a valid marriage and whose parents had “access” to each other

(Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454 para 42)

  • Burden of proving illegitimacy is on the person who makes such allegation

(Banarasi Dass v. Teeku Datta, (2005) 4 SCC 449 para 10)

  • The party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time.

(Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 para 10)

Presumption of legitimacy

  • The presumption under Section 112 of the Indian Evidence Act can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities or on the basis of slender material. The standard of proof in such cases must be of a degree in between the preponderance of probability and proof beyond reasonable doubt by way of abundant caution and has a matter of public policy

(Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 paras 11 & 12)

  • The presumption can only be rebutted by a strong, clear, satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt

(Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454 para 39)

  • The verdict of displacement of the presumption shall not be rendered on the basis of slender materials. If a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable

(Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 para 11; Banarasi Dass v. Teeku Datta, (2005) 4 SCC 449 para 13).

  • The courts must be inclined towards upholding the legitimacy of the child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father

(Dukhtar Jahan v. Mohd. Farooq, (1987) 1 SCC 624).

[W v. H, 2016 SCC OnLine Del 4786, decided on 26.08.2016]

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Provision relating Goods and Services Tax Council comes into force

The Central Government in exercise of the powers conferred by sub-section (2) of section 1 of the Constitution (One Hundred and First Amendment) Act, 2016, appoints the 12th day of September, 2016 as the date on which the provisions of section 12 of the said Act shall come into force.

Ministry of Finance

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No interim maintenance to professionally qualified spouse having means to sustain oneself

Delhi High Court: Hearing an appeal against the Family Court’s order declining to award interim maintenance to the  appellant wife as she is a qualified chartered accountant having sufficient means to maintain herself, the Court observed that Section 24 of the Hindu Marriage Act makes a provision for award of interim maintenance to a spouse who has no independent income sufficient to support her and fight the legal battle. The appellant wife being  well qualified and in profession for the past 13 years need not be granted interim maintenance.

The appellant is a CA while her husband is an Electrical Engineer running his own business. The husband had filed a petition for dissolution of marriage under Section 13(1)(i-a) of the Hindu Marriage Act. The wife under Section 24, sought interim maintenance for a sum of Rs 3 lakh per month for herself and the two children besides Rs 1.13 lakh towards litigation expenses.  While denying maintenance to the wife, the Family Court refused to believe her claim that she was getting only Rs 7,000 per month despite the fact that she had been practicing as a Chartered  Accountant since the year 2003. Her claim that she has no sufficient means to support herself and children was dealt with by the  Family Court noting that the parties had been indulging in jugglery of accounts making the things complex. The Family Court, however, awarded a sum of Rs 22,900 per month towards the maintenance of her two children.

Concurring with the finding of the Family Court, the Court observed that the High Court of Madras inManokaran v. M. Devaki2003 SCC Online Mad 135,  while construing the provision of Section 24 of the Hindu Marriage Act and relying on its earlier decision in  Kumaresan v. Aswathi, 2002 SCC Online Mad 377 held that for grant of maintenance pendent lite, the party should not have sufficient independent income for her/his support. The Court also noted that in the  context of award of interim maintenance under Section 24 to a well-qualified spouse having the earning capacity but desirous of remaining idle has been deprecated in the decision in Mamta Jaiswal v. Rajesh Jaiswal, 2000 (3) MPLJ 100.

Dismissing the appeal, the Bench of Pratibha Rani and Pradeep Nandrajog, JJ observed that the appellant wife who is a qualified Chartered Accountant and in profession since the year 2003 need not be granted interim maintenance under Section 24 of the Act. [Rupali Gupta v. Rajat Gupta, MAT. App. (FC) No. 143 OF 2014, decided on September 5, 2016]

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Dr. Urjit R. Patel takes over as RBI Governor

Dr. Urjit R. Patel assumed charge as the twenty-fourth Governor of the Reserve Bank of India effective September 4, 2016 after serving as Deputy Governor since January 2013. He was re-appointed as Deputy Governor on January 11, 2016 after completion of his first three-year term of office. Among his assignments as Deputy Governor, Dr. Patel chaired the Expert Committee to Revise and Strengthen the Monetary Policy Framework. Representing India, he actively participated in steering the signing into force of the inter-governmental treaty and the Inter-Central Bank Agreement (ICBA) among the BRICS nations, which led to the establishment of the Contingent Reserve Arrangement (CRA), a swap line framework among the central banks of these countries.

Dr. Patel has also served at the International Monetary Fund (IMF). He was on deputation from the IMF to the Reserve Bank during 1996-1997, and in that capacity he provided advice on development of the debt market, banking sector reforms, pension fund reforms, and evolution of the foreign exchange market. He was a Consultant to the Ministry of Finance (Department of Economic Affairs), Government of India, from 1998 to 2001. He has also had other assignments in the public and private sectors.

Dr. Patel has worked closely with several central and state government high level committees, including the Task Force on Direct Taxes (Kelkar Committee), the High Level Expert Group for Reviewing the Civil & Defence Services Pension System, the Prime Minister’s Task Force on Infrastructure, the Group of Ministers on Telecom Matters, the Committee on Civil Aviation Reforms and the Ministry of Power’s Expert Group on State Electricity Boards.

Dr. Patel has several publications in the areas of Indian macroeconomics, monetary policy, public finance, the Indian financial sector, international trade, and regulatory economics. Dr. Patel has a Ph.D in economics from Yale University, an M. Phil from University of Oxford and a B. Sc. from the University of London.

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Union of India, MCI issued notice regarding prescription of guidelines for Private Hospitals to curb medical negligence

Supreme Court: In the case relating to medical negligence where it was contended that the treating physician should have been well advised to ask for a Lever Function Tests (LFT) as that was absolutely necessary but the same was not done which amounted to gross negligence, the petitioner urged that neither the Union of India nor the Medical Council of India nor the State Governments are prescribing any guidelines for treatment of the patients in the Intensive Care Units (ICU) or Critical Care Units (CCU) and also that there is no proper care at the stage of operation or post-operational stage.

Considering the above-mentioned contention and the fact that the medical negligence cases are increasing especially in private hospitals, the bench of Dipak Misra and U.U. Lalit, JJ issued notice to the Union of India, the Medical Council of India and to all the State Governments represented by the Health Secretaries and asked them to submit their reply within 6 weeks from the date of this order. [Asit Baran Mondal v. Rita Sinha, 2016 SCC OnLine SC 827, Order dated 17.08.2016]

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Government constitutes Child Labour Technical Advisory Committee

The Central Government via notification dated 1st September, 2016 in exercise of the powers conferred by section 5 of the Child Labour (Prohibition and Regulation) Act, 1986 read with rule 3 of the Child Labour (Prohibition and Regulation) Rules, 1988, constitutes an advisory committee to be called the Technical Advisory Committee consisting of the following members, namely: –

  1. Director General, Factory Advice Services Labour Institutes, Mumbai. – Chairman
  2. Director General, Mines Safety, Dhanbad – Member
  3. Director-General, Health Services, Government of – Member India, New Delhi or his nominee not below the level of Additional Director General
  4. Director General, Indian Council of Medical Research, New Delhi – Member or her nominee not below the level of Deputy Director General
  5. Chief Controller of Explosives, Nagpur. – Member
  6. Director, National Institute of Occupational Health, Ahmedabad. – Member
  7. Director, Industrial Toxicology Research Centre, Lucknow. – Member

MINISTRY OF LABOUR AND EMPLOYMENT

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Court cannot impose any Policy for Religious Education in Schools upon the State

Allahabad High Court: Deciding a public interest litigation praying that the Union of India and State of U.P. be directed to introduce compulsory religious education from Class I to the post-graduate level and also provide for a syllabus for research of such education, the Division Bench comprising of Amreshwar Pratap Sahi and Dr Vijay Laxmi, JJ. in their separate judgments observed that the Courts cannot impose upon the State a particular policy for imparting any form of religious instruction or education about religion and it is for Parliament or the legislative assembly concerned that has the competence to do so. It is the appropriate government which has to decide as a matter of policy to introduce the imparting of religious education and the manner of such imparting is for the expert bodies to recommend.

A prayer was also made that the respondents be restrained from granting recognition to institutions if there is no sufficient provision for imparting religious education and that the prescription of the syllabus should also include different aspects of Islamic religion including the advent of Islam and encourages the study of Islamic literature as a source of Islam. Additionally a prescription has been sought for introducing Hindu religious scriptures in the syllabus which would lead to peace in society and foster harmony between people believing in different religions. The petitioner’s thrust is that the shadow of doubt would all be cleared by the process of learning and therefore it is necessary to invoke State action to promote education about different religions.

In a separate judgment, Vijay Laxmi, J. observed that “Our experience of more than 65 years reveals that ‘secularism’ cannot be practiced by adopting a complete neutral approach towards religions but by a positive approach by making people to understand and respect religion and faith of another section of people. Based on such mutual understanding and respect for each others religious faith, mutual distrust and intolerance can gradually be eliminated.” The Judge also observed that “We must civilize the human heart. Education of the emotions and discipline of the will are essential parts of a sound system of education. Religion is a permeative influence, a quality of life, an elevation of purpose. Our institution, if they are to impart religious vitality, should have simplicity and an atmosphere of consecration that permanently influence lives. We must civilize the human heart. Education of the emotions and discipline of the will are essential parts of a sound system of education. Religion is a permeative influence, a quality of life, an elevation of purpose. Our institution, if they are to impart religious vitality, should have simplicity and an atmosphere of consecration that permanently influence lives.”

The petition was dismissed in view of the judgment in Aruna Roy v. Union of India(2002) 7 SCC 368 wherein it was held that this Court can enforce constitutional provisions and laws framed by Parliament. It cannot, however, compel that a particular practice or tradition followed in framing and implementing the policy, must be adhered to. [Hindu Front for Justice v. Union of India, Misc. Bench No. 18908 of 2016, decided on August 19, 2016]

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Past acts of cruelty after condonation, are not a ground to seek divorce, unless revived by later acts of cruelty CASE BRIEFS HIGH COURTS Leave a comment Delhi-High-Court


Delhi High Court: Hearing an appeal against the Family Court’s order dismissing the appellant husband’s petition for dissolution of marriage on grounds of cruelty, the Court observed that the law pertaining to cruelty is if by resuming cohabitation the spouse claiming victim of cruelty forgives the other spouse who commits the cruelty, the alleged act of past cruelty cannot be relied upon to seek divorce on account of the cruelty unless they are revived by subsequent acts of cruelty.
The appellant/husband got married to the respondent/wife on November 22, 2004 according to Hindu rites and ceremonies and a son was born on January 01, 2006. The husband filed a petition under Section 13(1)(i-a) of Hindu Marriage Act, 1955 citing several instances of cruelty stated to have been committed by the respondent/wife.
While observing that there was no allegation of physical cruelty being committed by the wife and divorce is being sought on the allegations of mental cruelty, held that the appellant husband failed to prove that he was treated with cruelty.
The Bench of Pradeep Nandrajog and Pratibha Rani, JJ observed that the respondent did not seek dissolution of marriage on account of desertion under Section 13(1)(i-b) of the Hindu Marriage Act but on account of the mental cruelty being committed by the respondent wife. The Court agreed with the findings of the Family Court that none of the incidents enumerated except the accusation of illicit relationship with his bhabhi or creating a scene when he was alleged to be in his bhabhi’s room, amounted to mental cruelty of a level envisaged under Section 13(1)(i-a) of the Hindu Marriage Act. The Court held that it was not a case of dissolution of marriage on the ground of cruelty being caused to the appellant husband. Even if there was any act of mental cruelty, the same was condoned by the appellant by cohabiting till his wife left on April 06, 2008. There was no instance of cruelty being committed by the respondent wife thereafter.
The appellant also urged that the marriage had broken down irretrievably as more than eight years had passed since the respondent wife had left the matrimonial life, hence the marriage may be dissolved by a decree of divorce. Dismissing the appeal, the Court observed that the wife had nowhere expressed her desire to seek a divorce, besides no sincere effort was made by the appellant to save the marriage by remaining in touch with his wife and son or to provide some amount for better upbringing of their son. The case was to seek dissolution of marriage on account of cruelty and not on desertion, hence the appellant was not entitled to seek a decree of divorce claiming that the marriage had broken down irretrievably. [Neeraj Kumar v. Pooja Verma,  2016 SCC OnLine Del 4625, decided on August 19, 2016]

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Rent received by a company from a house property to be treated as it’s business income if the company is in the business of renting properties BUSINESS LAWCASE BRIEFSSUPREME

Supreme Court: In the matter where a house property had been rented and the assesse, a private limited company, was receiving income from the said property by way of rent, the question that arose before the bench of Anil R. Dave and L. Nageswara Rao, JJ was that whether the income so received should be taxed under the head “Income from House Property” or “Profit and gains of business or profession”. The Court ordered in the favour of the assesse and held that the income so earned should be treated as its business income.

It was contended by the assessee that the assessee company is in business of renting its properties and is receiving rent as its business income, the said income should be taxed under the Head “Profits and gains of business or profession” whereas the Revenue had contended that as the income is arising from House Property, the said income must be taxed under the head “Income from House Property”.

The Court relied upon the decision in Chennai Properties and Investments Ltd. v. Commissioner of Income Tax(2015) 14 SCC 793, where it was held that if an assessee is having his house property and by way of business he is giving the property on rent and if he is receiving rent from the said property as his business income, the said income, even if in the nature of rent, should be treated as “Business Income” because the assessee is having a business of renting his property and the rent which he receives is in the nature of his business income. It was held that the said judgment squarely applies to the facts of the case at hand and hence, the High court of Madras was not correct while deciding that the income of the assesse should be treated as Income from House Property. [Rayala Corporation Pvt. Ltd v. Assistant Commissioner of Income Tax, 2016 SCC OnLine SC 806, decided on 11.08.2016]

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Jurisdiction under Article 142 of the Constitution invoked to waive the statutory period of waiting in a divorce by mutual consent CASE BRIEFS SUPREME COURT

Supreme Court: Invoking it’s jurisdiction under Article 142 of the Constitution, the Court granted the decree of divorce to a couple by mutual consent by waiving the statutory period of waiting.

In the present case, the couple had lived together as husband and wife only for few days and had been living separately for than 5 years. Both the parties had mutually agreed to end all the pending litigations and had filed a joint petition under Section 13B of the Hindu Marriage Act for dissolution of marriage by mutual consent.

Considering the above mentioned facts and the fact that the respondent had to return to USA for his work and the appellant had to think of her future, the bench of Kurian Joseph and R.F. Nariman, JJ thought it to be the fit case for invocation of Article 142 of the Constitution and held that since the parties have settled their dispute amicably, the interest of justice would be met if the entire dispute is settled finally. [Aditi Wadhera v. Vivek Kumar Wadhera, 2016 SCC OnLine SC 785, decided on 04.08.2016]

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NGT: De- Register All Diesel Vehicles Older than 15 Years in Delhi

 

Wed, 20 Jul 2016 15:07:15 IST

National Green Tribunal (NGT) has issued orders to de-register all diesel vehicles that older than 15 years and those that comply with BS-1 and BS-2 standards.

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SC Directs Supertech to Deposit Rs 5 Crore

 

Wed, 20 Jul 2016 10:28:58 IST

SC has directed Supertech to deposit Rs 5 crore in its Registry as a part of refund to homebuyers for project in which Allahabad High Court had ordered demolition of twin towers of Emerald Court in Noida.

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Rajya Sabha Passes The Child Labour (Prohibition and Regulation) Amendment Bill

 

Wed, 20 Jul 2016 10:26:52 IST

Rajya Sabha has passed The Child Labour (Prohibition and Regulation) Amendment Bill, which prohibits employment of children below 14 years in all occupations except in family business, with the provision for imprisonment of up to two years for any violation.

 

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Lok Sabha Passes Bills to Replace NEET Ordinances

 

Wed, 20 Jul 2016 10:26:30 IST

Lok Sabha has passed The Indian Medical Council (Amendment) Bill and The Dentists (Amendment) Bill, which seek to amend The Indian Medical Council Act,1956 and The Dentists Act, 1948 to replace the National Eligibility cum Entrance Test (NEET) ordinances.

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SC: Multiple Life Terms to Run Concurrently, Not Consecutively

 

Tue, 19 Jul 2016 15:48:02 IST

Supreme Court has ruled that if a convict is awarded multiple life imprisonment then they shall run concurrently and not consecutively.

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Delhi HC Rejects Plea in Essar Phone Tapping Case

 

Tue, 19 Jul 2016 15:46:47 IST

Delhi HC has dismissed petition seeking a court-monitored inquiry into alleged tapping, interception and recording of phone calls of politicians, government officials and business houses by Essar Group between 2001 and 2006.

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SC Rejects Plea for Revocation of Sachin Tendulkar's Bharat Ratna Award

 


Tue, 19 Jul 2016 10:36:29 IST

SC has rejected a plea seeking revocation of conferment of Bharat Ratna to Sachin Tendulkar on ground of alleged misuse of the highest civilian honour.

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SC Denies to Change Nirbhaya Amicus Curiae

 

Tue, 19 Jul 2016 10:36:07 IST

SC has dismissed plea of convicts in Nirbhaya rape and murder case for changing two senior lawyers Raju Ramachandran and Sanjay Hedge, appointed as amicus curiae to assist the court.

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SC Accepts Recommendations Made by Justice Lodha Panel

 

Tue, 19 Jul 2016 10:35:22 IST

Supreme Court has accepted recommendations made by the Justice Lodha panel and ordered several changes in the working of the Board of Control for Cricket in India (BCCI).

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SC Denies to Stay NEET Ordinance

 

Fri, 15 Jul 2016 11:02:25 GMT
 

The Supreme Court on Friday refused to stay the NEET ordinance, saying that its validity on the ground it violated Article 14 of the constitution could be challenged when the court opened after the summer break.

An apex court vacation bench of Justice Prafulla C. Pant and Justice D.Y. Chandrachud, while declining to pass any interim order, said that anything at this stage would create further confusion.

“It will create further confusion,” the bench said.

The court was hearing a public interest suit by one Anand Rai contending that the May 24 ordinance was brought to upset the April 28 judgement of the top court laying down a ‘one nation one test’ for admission to undergraduate medical courses across the country.

Opposing the plea for staying the ordinance, Attorney General Mukul Rohatgi said that it was promulgated to accommodate states like Tamil Nadu, Maharashtra, Goa, Gujarat and Andhra Pradesh, who have already held there state-level entrance examinations for admitting students in government medical colleges and filled the quota of government seats in private medical colleges.

The Supreme Court had earlier ruled that admission to MBBS/BDS courses would be done only through National Eligibility-cum-Entrance Test (NEET) and scrapped the entrance tests conducted by the state governments and private medical colleges.

The court had revived NEET after recalling its 2013 order by which the common entrance test was declared unconstitutional.

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Delhi HC Restrains 2 Indian Firms from Infringing Toyota Trademarks

 

Fri, 15 Jul 2016 11:01:42 GMT

Delhi HC has restrained two Indian auto spare parts manufacturers from infringing on trademarks like Prius and Innova of Japanese car-maker Toyota and directed them to pay Rs 10 lakh as damages to the auto giant for "knowingly and intentionally" using its brands to earn "undue profits".

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SEBI Notifies Tight Transfer Norms for P-Notes

 

Thu, 14 Jul 2016 15:14:36 GMT

Securities and Exchange Board of India (SEBI) has notified new norms restricting transfer of Participatory Notes (P-Notes), offshore instruments only to entities authorized for their use and that too after prior consent from the issuer foreign investor.

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Delhi HC to Kejriwal: Explain 'Thulla' Remark, Stays Summons

 

Wed, 13 Jul 2016 15:17:21 GMT

Delhi HC has stayed summons issued by a trial court against Chief Minister Arvind Kejriwal in a criminal defamation case for allegedly making derogatory remarks against a local policemen.

 

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SC to Sikh Bodies: Create Mechanism to Curb 'Santa-Banta' Jokes

 

Wed, 13 Jul 2016 10:21:26 GMT

SC, while hearing petitions seeking ban on circulation of jokes about Sikh community, has asked bodies representing the community to create a mechanism to create a mechanism to stop them within six weeks.

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Madras HC: Suspecting Wife's Fidelity is Also Domestic Violence

 

Wed, 13 Jul 2016 10:19:50 GMT

Madras HC has held that suspecting wife's fidelity, questioning her for moving about with almost every other person, including her father, also amounts to domestic violence, entitling her subjected to "emotional abuse" under Protection of Women from Domestic Violence Act 2005.

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NGT Issues Show Cause Notice to GDA and Others

 


Tue, 12 Jul 2016 10:47:09 GMT

National Green Tribunal (NGT) has issued show cause notices to Secretary, Ghaziabad Development Authority (GDA), District Magistrate and Additional Municipal Commissioner on issue of waste dumping in Hindon river and burning of waste in open.

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SC: Farmer Can't be Evicted from Leased Land after Expiry Period

 


Mon, 11 Jul 2016 11:40:42 GMT

SC has held that a farmer, who is in possession of leased land even after expiry of lease period, cannot be evicted if owner either acknowledges tenancy or is accepting rent.

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Gujarat HC Grants Bail to Hardik Patel

Gujarat HC Grants Bail to Hardik Patel


Mon, 11 Jul 2016 11:39:25 IST

Gujarat High Court has granted bail to Patel quota agitation leader Hardik Patel in two sedition cases, with a rider that he will have to stay outside State for the next six months.

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Consumer Forum Orders Hospital to Pay Rs. 7 Lakh For Wrongly Transplanting Pacemaker

A consumer forum has directed a Delhi hospital to pay over Rs. 7 lakh to a Delhi Police personnel for wrongly transplanting a pacemaker which was not needed, saying it was "against all medical ethics".

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RBI Permits Start-Ups to Open Currency Account Abroad

Reserve Bank of India (RBI) has allowed startups with an overseas subsidiary to open foreign currency accounts abroad to credit foreign exchange earnings from exports and sales made by them.

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CBEC: KKC Only on Services Rendered, Billed from June 1

Central Board of Excise and Customs (CBEC) has issued a notification granting exemption from Krishi Kalyan Cess (KKC) for services rendered and invoiced on or before May 31.

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Gujarat HC Permits Abortion of Minor Rape Survivor's 22-Week Pregnancy

Gujarat HC has allowed a minor rape survivor to get her 22-week pregnancy terminated after a lower court had earlier denied permission on health grounds.

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SC Declines to Take Plea to Stay Screening of 'Udta Punjab'

SC has declined to take plea seeking a stay on release of film Udta Punjab and asked it to approach the Punjab and Haryana High Court, which is seized of the matter.

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SC Expands Boundaries of Right to Self-Defence

Supreme Court, while expanding scope of the right to self-defence, has ruled that a person would be right in taking the law into his hands if he witnessed his parents or relatives being assaulted.

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