Weekend Legal Updates

Sunday, 25th September 2022




Article – 152  Definition.

In this Part, unless the context otherwise requires, the expression “State”. [does not include the State of Jammu and Kashmir]

Today’s Legal Updates :-

  1. Senior Counsel Mukul Rohtagi has declined to accept the offer by the Central government to be the Attorney General for India (AG).
    • AG Venugopal’s tenure was extended for a period of three months or “until further orders”. This extension is set to expire on September 30.
  2. Last Week the Nagpur Bench of Bombay High Court dismissed a public interest litigation petition seeking to re-start the traditional sport of cockfight in the State of Maharashtra.  (Gajendra Dilip Chacharkar v. UOI & Ors.)
    • the Bench observed, Simply because some sport, custom or tradition is going on for ages, it cannot be a reason for the Court to allow the same.
    • the bench ruled, More the violence, more is the blood spilling and more is the excitement generated by greater secretion of adrenalin, which is entirely contrary to the provisions of the Prevention of Cruelty to Animals Act, 1960. Therefore, we do not think that this is a fit case for making any intervention by this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India.
  3. A public interest litigation (PIL) petition has been filed before the Bombay High Court seeking restrictions/ ban on the advertisements of meat and meat products in print and electronic media.
    • the plea cited Article 51A (g) of the Constitution which bats for compassion towards living creatures as one of the fundamental duties.
    •  the plea, It is the fundamental right of everyone in this country to live with human dignity free from exploitation, however, the impugned advertisements exploit the mind of children and youngsters by provoking, promoting and intimidating to consume non-vegetarian foods.
  4. On Friday the Supreme Court directed the Lucknow bench of the Allahabad High Court to decide on the issue of regularisation of the services of its court masters by January 31, 2023.  (Rashmi Singh and ors vs Pramod Kumar Srivastava & anr)
    • We expect that when such an order is passed, the High Court must, in due deference, do so expeditiously. Unfortunately, the petition has still remained pending. A copy of this order shall be placed before the Registrar (Judicial) of the Lucknow Bench of the High Court of Judicature at Allahabad so that it can be drawn to the attention of the assigned Bench according to the roster of work for early disposal according to the above time schedule. All rights and contentions of the parties on merits are kept open.
  5. A petition has been filed before the Bombay High Court seeking return of shares lying with the National Stock Exchange, the national market regulator, after an approved intermediary with the NSE was declared as a defaulter.  (Pushpa Shah & Anr. v. National Stock Exchange & Anr.)
    • the plea through advocate Amrita Nair said, Anugrah was never the shareholder, but merely an agent facilitating the process, let alone at the time of their default. The petitioners had legal rights over the shares hence the shares should have been transferred.
    • the petitioners emphasized, In light of carrying out the duties and obligations set forth, they must protect the rights and interests of the petitioners and transfer the shares to the petitioners’ current CDSL accounts as requested.
  6. On Friday the Delhi High Court directed a private school to allow an unvaccinated teacher to resume duties after a member board constituted by AIIMS, New Delhi said that he was at a higher risk of developing an allergic reaction to the Covid-19 vaccine. (RS Bhargava v Govt. of NCT of Delhi)
    • the order, The respondent no.4 is further directed to release the balance salary along with all allowances payable to him after deducting 10% from the salary payable for the period between 02.11.2021 till the date of his re-joining duty. The said amount will be paid within a period of six weeks from today.
  7. The Supreme Court will examine whether a person can be deported from the country without deciding his application regarding citizenship under Section 9(2) of the Citizenship Act.  (Akil Piplodwala vs DSP and ors)
    • the plea said, It is submitted that the petitioner has spent more than substantial part of his life in India and the same fact was not appreciated by the Hon’ble High Court.
  8. One of the convicts in the Bilkis Bano gang rape case, who was recently released by the Gujarat government, has opposed the plea before the Supreme Court challenging remission of his life sentence.
    • the counter-affidavit filed by Shah states, This Hon’ble Court while considering the fact that the conviction in this present case by the Trial Court had occurred in the year 2008 and by that time the State of Gujarat’s premature policy dated July 9, 1992 was in operation, the State Government was directed to consider the application for premature release in terms of the policy dated July 9, 1992.
    • Shah has contended, This Hon’ble Court in as early as since celebrated judgment in “Janata Dal v. HS Chowdhary, which was reiterated and followed in “Simranjit Singh Mann v. UOI and which continued till date in “Subramanian Swamy v. Raju, has consistently held in clear terms that a third party who is a total stranger to the prosecution has no ‘locus standi’ in criminal matters and has no right whatsoever in filing a petition under Article 32 of the Constitution.
    • Even on the merits of the case this Hon’ble Court vide its Judgment dated May 13, 22 passed in W.P. (Crl.) No.135/2022 after hearing all the parties in case came out with a categorical Judgment and directions on broadly two issues.  The first issue which was answered by this Hon’ble Court was which State Government Policy would be applicable in the instant case wherein it was answered that the Policy applicable in the given case would be of State of Gujarat.  The second issue which was answered by this Hon’ble Court was nothing but reiteration of again a settled law propounded in “State of Haryana Vs. Jagdish,2010 (4) SCC 216” by a three Judges Bench that it is always a policy for premature release which is applicable at the time of the conviction by the Trial Court on a convict and not a subsequent policy at the time of consideration.
  9. On Saturday the Karnataka High Court held that if banks disburse loans to developers without ascertaining the stage of construction of a project, they cannot resort to coercive measures against homebuyers.  (Mudit Saxena v. Union of India)
    • the judge said, If bank has erred in the course of its business and suffers loss, the poor borrowers who wanted to have a shelter of their own, cannot be put to peril, the right to residence being constitutionally guaranteed under Article 19(1)(e).
    • the Court held, A conjoint reading of various clauses in the Tripartite Agreement makes it very clear that even when the booking or the allotment is cancelled and as a consequence thereof, borrowers’ obligation to serve the debt evaporates into thin air, the interest of lending agency is protected, provided that the sanctioned housing loan was released to the Developer only after ascertaining stagewar construction of the apartments, in terms of extant RBI Guidelines and Circulars issued by National Housing Bank.
  10. On Friday the Calcutta High Court upheld the conviction and life sentence imposed on a tutor convicted of raping a minor girl.  (Abbas Sk @ Abbas Hossain)
    • the bench observed, The relationship between a teacher and a student is considered to be pious in Indian society. The victim girl under no circumstances would fabricate or concoct such a gruesome incident causing excruciating pain to her body as evident from the testimony of the witnesses, who stated that the victim was tossing on bed.
    • the bench said, The victim girl of 8/9 years of age generally considers a teacher with high regard and respect. The family entrusting the children at the disposal of a teacher could never imagine the commission of such horrifying act disrupting their trust in a tutor or a teacher. This is not a crime or blow against a victim girl but entirely a catastrophe dismantling the strata of social confidence in the relationship between a teacher and a student.
    • the Court said, In absence of any other credible evidence the sole testimony of the victim whose tender body and mind suffered immensely subjected to such pain on record is sufficient to establish the prosecution case. Minor contradictions in her evidence do not affect the prosecution case as the medical report vividly describes the commission of the offence upon the victim.
  11. On Friday the the Allahabad High Court observed while quashing a 24-year-old criminal case against certain individuals, Speedy trial is a right not only of complainant but also of the accused persons. (Dr. Meraj Ali & Anr v State of UP)
    • the Court said, Since this Court has quashed the proceedings but after 24 years, therefore, the suffering of accused persons/ applicants cannot be compensated. Speedy trial is a right not only of complainant but accused persons also. There is no explanation why the proceedings are reached only upto the stage of discharge application after a lapse of more than two decades.
    • the Court said, It appears that due to one or other reasons the directions are not followed in letter and spirit. Therefore, the trial courts are directed to undertake endeavour that every criminal proceedings shall be concluded expeditiously, as speedy trial is a right of both complainant and accused persons.
  12. The Delhi High Court has held that a private temple may be open to the public on certain festivals but that would not convert it into a public temple and a worshipper is not empowered to maintain a suit for titular rights over it.  (Rajesh Giri v Subhash Mittal and Ors)
    • the Court said, Mr. Kunal Kumar, learned Counsel for Respondent 4 submits, correctly, that a private temple may also be open to the public on certain festive occasions. That would not convert the temple into a public temple so as to empower a worshipper of a temple to maintain a suit with respect to titular rights in respect of the temple.
  13. On Friday the Supreme Court granted bail to former Managing Director of IL&FS Transportation Network Ramchand Karunakaran in a money laundering case registered against him.  (Ramchand Karunakaran vs ED and anr)
    • the Court ordered, Appellant has completed more than three years of imprisonment in connection with the offence under PMLA. It has been brought to our notice that accused 2,3,4,7 have not been arrested, and charges are yet to be framed. Considering the entirety of the matter and the fact that the appellant is a senior citizen, we hold that he is entitled to bail. We therefore allow this appeal, he shall be produced before trial court within 3 days for bail conditions.
    • the bench added, He should not influence the witnesses or tamper evidence, and appear on every single date [of the trial] in person unless exempted.
  14. The Delhi International Arbitration Centre (DIAC), established in November 2009, is an independent, transparent and professional institution that encourages and supports the growing demand for institutional arbitration.
  15. The special judge hearing the bail plea of Delhi minister Satyendar Jain in the money laundering case is a very upright officer, the Rouse Avenue court underlined on Friday even as it accepted the plea by Enforcement Directorate (ED) to transfer the hearing of the bail plea to another judge.  (ED v. Satyendar Kumar Jain and others)
    • the order said, The (special) judge is a very upright officer, however, all the circumstances taken together are sufficient to raise a reasonable apprehension in the mind of the petitioner as a common man, not of any actual bias but of a probable bias and as such the application is liable to be dismissed.
    • the Court ordered, Accordingly, the application is allowed and the case CC No. 23/2022 titled Enforcement Directorate v. Satyendar Kumar Jain and others is withdrawn from the court of Geetanjali Goel, Special Judge, CBI, RADC, New Delhi, and transferred to the court of Vikas Dhull, Special Judge, CBI, RADC, New Delhi.
    • Raju had argued making a case for transfer of the case, We objected saying it was under his control and he was a minister. And medical report will be biased, tainted. We asked for transfer. We also produced page of website where his photo was printed. Despite that, she (special judge) calls for a report, doesn’t record out objections.
    • the ASG added, He faked his illnesses. For getting admitted in a hospital of his choice. He was heading the hospital. The photo on the hospital’s website showed him to be the patron of the hospital.
    • Orally you are attributing something to the judge. Is the judge not supposed to question. Is he supposed to be a silent spectator? Is he supposed to agree with everything they say… Till the 13th September there was no bias. What is the bias, the judge may grant medical bail not regular bail…Because judge allowed him to be shifted. That happened in July,
  16. On Friday the Lucknow bench of the Allahabad High Court sentenced Bahujan Samaj Party (BSP) Member of Legislative Assembly (MLA) Mukhtar Ansari to five years’ rigorous imprisonment and a ₹50,000 fine under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act.  (State of UP v Mukhtar Ansari)
    • the court explained, If the prosecution proves that the person belongs to a gang and indulges himself in committing offence with object of disturbing public order or of gaining any undue temporal and pecuniary material or other advantage for himself or any other person, he may be punished under the Gangsters Act.
  17. On Friday the Delhi High Court appealed to senior lawyers at the Bar to ensure that they pay good stipend to their juniors to enable them to lead a dignified life.  (Pankaj Kumar v Bar Council of Delhi and Ors)
    • the Court said, This Court makes an appeal to seniors in this profession to ensure that the stipend that is paid to their juniors is enough for their juniors to evade the financial stress that accompanies this profession and allows them to lead a more dignified life. We further appeal to them to be more mindful of the financial background of their juniors and employ a more empathetic approach towards the same, considering the virtuosity of this profession.
    • the Court said, Job opportunities are scarce and persons competing for these limited job opportunities are far too many which makes the competition arduous and the services of an individual dispensable… It is well settled that a writ can lie only for the enforcement of the right established by law and Article 21 of the Constitution of India cannot be stretched to encompass in itself a right of an Advocate to claim a monthly stipend from Bar Associations.
    • It is for the Bar Councils to make provisions to provide some kind of financial assistance so that the young advocates, who are the future of this noble profession, are able to sustain themselves. Other than making an earnest appeal to the Bar Council of Delhi and the Bar Council of India to make provisions for providing stipends to the young advocates, who have recently enrolled themselves in the profession, so that they can overcome the financial stress in the initial years of practice, this Court cannot pass a writ of mandamus directing them to mandatorily provide stipends to the young advocates.
  18. The Delhi High Court has dismissed a plea by Sarvjeet Singh seeking criminal inquiry against Jasleen Kaur, the St Stephens College student who had accused him of sexual harassment and abuse at a traffic signal in Delhi in 2015.  (Sarvjeet Singh v State (NCT of Delhi) and Anr)
    • Justice Jain held, The trial Court while acquitting the petitioner, has not given any finding that the respondent no. 2 has made false statement on oath during the trial before the Court.
    • The present petition is devoid of merit, hence, dismissed. However, the petitioner shall be at liberty to initiate appropriate legal proceedings for the defamation alleged to have been caused by the respondent no. 2 towards the petitioner by lodging the present FIR in accordance with law or by initiating any other remedy as provided under law. The application under section 340 Cr.P.C. is not maintainable under the given facts and circumstances of the case.
  19. On Thursday the National Green Tribunal (NGT) directed the State of Punjab to pay ₹2,180 crores as Environmental Compensation for failing to treat solid and liquid waste.  (In re: Compliance of Municipal Solid Waste Management Rules, 2016 and other environmental issue)
    • the NGT said, Are there insurmountable difficulties for State authorities or lack of will and determination? We find it difficult to believe the first. In our view, it is lack of good governance and determination responsible for the situation which needs to be remedied soonest.
    • it stated, We have suggested change in approach in realizing that remedial action cannot wait for indefinite period as is being proposed by the Administration. Sources of funding are laid down in the orders of the Hon’ble Supreme Court. Responsibility of the State is to have comprehensive plan to control pollution which is its absolute liability, which is not being understood.
  20. On Thursday the  Nagpur bench of the Bombay High Court ruled that repeated monetary demands made by a daughter from her father will not attract the offence of abetment of suicide.  (Lata Pramod Dangre vs State of Maharashtra)
    • the bench said, It is significant that in the present case the petitioner, allegedly through her mother, was making demands towards share in the agricultural land or monetary relief from the father. We are of the opinion that such repeated demands or alleged increase in the demands cannot lead to a finding that prima facie the demands were being made with the intention of driving the father to commit suicide.
    • the bench opined, The demand in itself, at worst, may have been unreasonable or a demand which the father was unable to fulfill, but it would be stretching things a bit far to reach a finding that the accused as the daughter, through her mother i.e. co-accused, intentionally acted in such a manner to drive the deceased to commit suicide. The surrounding circumstances also indicate that the deceased had two wives and children from both the wives and it cannot be said that driving the deceased to commit suicide would have led to any exclusive gain to the petitioner.
    • the bench noted, But, it also brings out the fact that the second wife i.e. mother of the petitioner and that at worst she at the behest of the petitioner was making monetary demands or asking for a share in agricultural land from the deceased. The informant in the present case is the son-in-law the deceased, who is married to the daughter of the deceased from his first wifeBut, it also brings out the fact that the second wife i.e. mother of the petitioner and that at worst she at the behest of the petitioner was making monetary demands or asking for a share in agricultural land from the deceased. The informant in the present case is the son-in-law the deceased, who is married to the daughter of the deceased from his first wife.
    • the bench opined, Thus, there is no proximate link between the suicide note recording harassment allegedly at the behest of the petitioner and the extreme step taken by the deceased,.
  21. On Friday the Supreme Court stayed the deportation of a woman excluded from the final draft of Assam’s National Register of Citizens.  (Lal Bhanu vs Union of India and ors)
    • Issue notice, returnable in three weeks. Liberty to serve the Central Agency, in addition … Till the next date of listing, no steps shall be taken for the deportation of the petitioner.
  22. The High Court of Jammu & Kashmir and Ladakh has directed reinstatement of a judicial officer who was suspended in 2013.
    • the order said, Pursuant to the resolution adopted by the Hon’ble Full Court in its meeting dated 16-09-2022, the suspension order of Shri Vishaish Kumar Parihar, Civil Judge (Sr. Division)/Sub Judge is hereby revoked and he is reinstated.

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