Today’s Legal Updates

Friday, 8th June 2022

Legal Awareness :- CONSTITUTION OF INDIA

Part – V THE UNION

CHAPTER- I THE EXECUTIVE (The President and Vice-President)

Article – 59 Conditions of President’s office.

  1. The President shall not be a member of either House of Parliament or of a House of the Legislature of any State, and if a member of either House of Parliament or of a House of the Legislature of any State be elected President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as President.
  2. The President shall not hold any other office of profit.
  3. The President shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.
  4. The emoluments and allowances of the President shall not be diminished during his term of office.

Today’s Legal Updates :-

  1. On Friday the Karnataka High Court held that the Sri Ram Janmabhoomi Teerth Kshetra, a trust set up for the construction of the Ram Mandir in Ayodhya, is not a ‘State’ under Article 12 of the Constitution.  (Dr SP Raghunath v. Union of India and Others)
    • Justice SG Pandit refused to entertain a plea of a 71-year-old retired engineer who worked with the Central government seeking a direction to appoint him as Chief Engineer of the Trust on honorarium basis.
    • Sri Rama Janma Bhumi Theertha Kshethra is not a State within the meaning of Article 12 of the Constitution of India, writ would not be maintainable. No writ could be issued for appointing petitioner as the Chief Engineer at Sri Rama Janma Bhumi Theertha Kshethra.
  2. On Thursday the Rajasthan High Court rejected a plea moved by Godman Asaram Bapu seeking suspension of sentences in case relating to sexual assault of a minor. (Asharam @ Ashumal v State of Rajasthan)
    • the Jodhpur bench of the High Court held, Looking to (sic) the nature and gravity of the allegations, and considering the fact that the appeal itself is ripe for hearing, we are of the opinion that the appellant does not deserve indulgence of bail.
    • Asaram moved the plea on the ground that he was an old, aged man of around 83 years and was suffering from numerous ailments.
    • he had been in prolonged custody of 9 years and 7 months, and thus, deserved the indulgence of bail.
    • the court did not find sufficient material to allow the application.
  3. On Tuesday the Bombay High Court asked Maharashtra prison authorities to clear their stand on whether Bhima Koregaon violence accused Gautam Navlakha is entitled to make telephonic and/or video conference calls from prison.
    • If it was given for 2 years without any problems, then why not now. All jails are allowed, why not now? What heavens will fall? Why the cruelty! They have sustained for 2 years because of this. Model prison manuals across the State allow for phone calls, even Delhi allows.
    • the Bench asked, That might reduce footfall. You tell us if the State wants to reintroduce the system? And not just COVID times but also normal times.
  4. On Friday the Kerala High Court reiterated Merely because a consensual sexual relationship did not culminate in marriage will not be sufficient to attract the offence of rape under Section 376 of the Indian Penal Code. (Navaneeth N Nath v State of Kerala)
    • the Court said, A sexual relationship between two willing adult partners will not amount to rape coming within the purview of section 376 of the IPC, unless the consent for sex was obtained by a fraudulent act or misrepresentation. Even if a sexual relationship between two willing partners does not culminate in marriage, still the same will not amount to rape, in the absence of any factor that vitiates the consent for sex. A subsequent refusal to marry or a failure to lead the relationship into a marriage are not factors that are sufficient to constitute rape even if the partners had indulged in a physical relationship.
    • the order, In order to convert a physical relationship between a man and a woman into rape due to the failure to abide by the promise of marriage, it is essential that the decision of the woman to engage in the sexual act must be based on the promise of marriage. To establish a false promise, the maker of the promise should have had no intention to uphold his word at the time of making it and the said promise should have induced the woman to submit herself to the physical relationship. There must be a direct nexus between the physical union and the promise of marriage.
    • the Ernakulam Central Police registered a crime alleging offences punishable under Sections 376(2)(n) (repeated rape of same woman) and 313 (causing miscarriage without woman’s consent) of the Indian Penal Code and accordingly arrested Nath.
  5. IP boutique firm Fidus Law Chambers opened its first office outside the NCR region, in the Bandra-Kurla Complex in Mumbai this month.
  6. On Friday the Enforcement Directorate (ED) has adjudicated that Amnesty India International and its Chief Operating Officer (CEO) Aakar Patel acted in contravention of the Foreign Exchange Management Act (FEMA), and imposed a penalty of ₹51.72 crore and ₹10 crore respectively.
    • The Adjudicating Authority of ED has adjudicated a SCN issued to M/s Amnesty India International Pvt. Ltd.(AIIPL) and its CEO Shri Aakar Patel for contravention of the provisions of FEMA and imposed penalty of Rs. 51.72 Crore and Rs 10 Crore respectively.
  7. On Friday A Delhi Court has ordered the framing of attempt to murder and rioting charges against three men in a case related to the Delhi Riots of 2020. (State v. Sonu & Ors)
    • charges under Sections 148 (rioting with deadly weapon), 427 (mischief causing damage to the amount of 50 rupees) and 395 (dacoity) read with 149 (unlawful assembly with common object) of the Indian Penal Code were also ordered against the three men. They have also been charged for flouting an order promulgated by a public servant.
    • Obviously, all the things need not be compulsorily video recorded. However, prosecution has relied upon the identification by injured in respect of assault to injured Jafar Jiya and damage caused to his motorcycle, which was caused by a mob, including accused persons. The simple criteria is to be that a piece of evidence, if found to be relevant in respect of alleged facts in this case, can be relied upon by the prosecution.
    • Therefore, a case of attempt to murder is also prima facie reflected against the accused persons.
    • the Court held, Just because all the five persons or other members of the mob could not be traced and chargesheeted by the investigating agency, it cannot be said that robbery was not committed by a group of five or more persons. In these circumstances, I also find a prima facie case for offence of dacoity being made out against the accused persons.
  8. On Thursday the Supreme Court said that its power to transfer suits under Section 25 of the Code of Civil Procedure (CPC) 1908 is limited and cannot be extended to determine the question of territorial jurisdiction.  (Neilan International Company Limited v. Powerica Limited and Others)
    •  Neilan International Company Limited filed a transfer petition under Section 25 CPC seeking transfer of petition filed by Powerica Limited under Section 34 of the Arbitration and Conciliation Act of 1996 (1996 Act) from the Additional City Civil and Sessions Judge (Commercial Court) at Bengaluru, Karnataka to the Bombay High Court or any other court of competent jurisdiction in Mumbai.
    • the Supreme Court observed, It is no longer res integra that there is limited scope vested in this Court while exercising its jurisdiction under Section 25 of CPC and the same cannot be extended to determine the question of territorial jurisdiction of the proceedings before it as the plea of jurisdiction or the lack of it can be prompted before the Court in which the proceedings are pending.
  9. On Tuesday the Karnataka High Court held that the petition filed by technology company Xiaomi India challenging an order of the Enforcement Directorate (ED) seizing seizing ₹5,551.27 crore from its bank accounts was premature.  (Xiaomi Technology India Private Limited v. Union of India)
    • Xiaomi India had moved the High Court challenging a provisional attachment order passed by the ED seizing its bank accounts. The agency had contended that the company had contravened provisions of the Foreign Exchange Management Act (FEMA) by making unauthorised payments to foreign companies situated outside India.
    • The seizure order passed by the Authorized Officer is not final and before confirming the said seizure order, petitioner would be provided with an opportunity to have his say in the matter. The petitioner could very well convince the Competent Authority that the payment of royalty by the petitioner to Qualcomm and Beijing Xiaomi Software Company Limited is in the nature of running royalty and is being paid for the use of SEPs and other licensed intellectual property in respect of mobiles sold in India.
  10. On Friday the Trivandrum Bar Association has issued a notice flagging concerns regarding what it terms as “indifferent attitude” and “disrespectful behavior” of junior lawyers and warned of disciplinary action if they continue to violate the “dignity of the profession”.
    • the notice, Several complaints regarding the indifferent attitude of certain junior members of the Bar are being received at the office continuously, relating to the disrespectful behavior shown to the Senior lawyers and casual dressing manner and submissions before the Courts.
    • the bar association said, It is also noticed that certain junior lawyers are wearing dresses like three-fourth (Calf-length) bottoms, sleeve less blouse causing total disrespect to the mandatory dressing code of our profession. Already a notice was issued on this behalf.
    • the association cautioned, Senior lawyers of the bar may kindly advice the juniors attached to your office to wear proper uniform to maintain the dignity of our profession. Unless (sic) the office of the TBA will be constrained to initiate disciplinary actions against them.
  11. On Friday the Punjab and Haryana High Court granted bail to the former Punjab health minister Dr Vijay Singla in a corruption case. (Vijay Singla v. State of Punjab)
    • the Court observed, There is no allegation that petitioner is likely to abscond or influence witnesses. Trial is not likely to conclude in the near future. No useful purpose would be served by keeping the petitioner incarcerated any longer. Keeping in view the facts and circumstances of the case but without commenting upon or expressing any opinion on the merits thereof, this petition is allowed.
    • Special Court had observed, This Court is of the considered view that if the responsible persons of the society such as the petitioner, who was the then Health Minister, have allegedly indulged into such corrupt practices as per the allegations levelled against him in the present case, it should send a very wrong signal in the society as it is having a depraved effect upon the minds of the common people, which loose faith in the system.
  12. On Friday the Madras High Court has held that a husband’s wilful conduct of having an extramarital affair and then forcing his wife to accept the same and to give money to sustain that affair, will amount to mental cruelty under Section 498A of Indian Penal Code.  (Dhananchezhiyan vs The State Represented By the Inspector of Police)
    • the judge said, The cruelty explained in the statute, includes both mental and physical. The wilful conduct of the applicant having extra martial affair with another married lady and forcing the deceased wife to accept his conduct and also to feed him money for his affair, can be termed as mental cruelty and harassment. Hence, this Court finds that the conviction of the accused under Section 498-A of IPC is perfectly legal and hence confirmed.
    • The depression caused by her husband’s extra marital affair was the cause for her to take the extreme decision to commit suicide. But, the very act of having extra marital affair is not sufficient to hold the accused is guilty of abetment. The prosecution has not laid any evidence that the husband aided or instigated the deceased to commit suicide. The evidence for prosecution has only proved that the mental cruelty caused on deceased pressurising her to get money from her parents to meet his expenses and his extra martial affairs satisfies the ingredient of Section 498-A of IPC.
  13. On Friday Burgeon Law, an innovative and new-age law firm for start-ups, investors, emerging-mid size companies, and industry players, has appointed Abhisshek Singlla as an Associate Partner of their firm.
  14. Trilegal has confirmed that it hired 93 students across Indian law schools in 2022, out of which the majority are women.
    • The starting remuneration offered on campus this year was ₹16 lakh per annum.
    • 56% or 52 of the new recruits were women. The firm said that while the fresh recruits were placed across all its offices in Mumbai, Delhi, Gurugram and Bangalore, a majority will start with the Corporate law practice in the Mumbai office.
    • 38% candidates (35) are said to have secured Pre-Placement Offers (PPOs) from the firm .
  15. On Friday the Delhi High Court directed the Enforcement Directorate (ED) to take a decision by July 13 on Chinese smartphone manufacturer Vivo’s representation seeking permission to operate its frozen bank accounts.
    • Senior Advocates Siddharth Luthra and Siddharth Aggarwal appearing for Vivo, argued that nine bank accounts that have been frozen and they hold nearly ₹250 crores.
    • Aggarwal submitted, Today, without any concern about business model, source, where the money has come from, where it is going, a carte blanche order is place which will be my sudden death.
    • This is a country-wide search. We have gone to 48 locations related to them. Searches at all but one location is complete… They are not even cooperating.
  16. Saraf and Partners has moved to a new 18,000 square foot office at One International Centre in Lower Parel, Mumbai.
  17. On Wednesday the Rajasthan High Court stayed the arrest of an advocate’s clerk booked for forwarding a WhatsApp message that read, “in Udaipur religious war has started, bravo finish the pigs”. (Vikram Singh v. State of Rajasthan)
    • the Court directed, The State-respondents are directed to ensure protection to the life and liberty of the petitioner and his family which cannot be at stake otherwise than due procedure established by law.
    • the order said, In the meantime, petitioner shall not be arrested in the aforesaid FIR till further order with condition that petitioner shall fully cooperate with the investigation of the case.
  18. On Friday A 66-year-old Indian origin woman living in India, who is now Stateless, has approached the Bombay High Court assailing an order by the Deputy Collector of Mumbai Suburban District rejecting her application for Indian citizenship.
  19. On Thursday the Supreme Court granted interim protection to a personal guarantor in a plea challenging several provisions of the Insolvency and Bankruptcy Code, 2016 (IBC) for being violative of the principles of natural justice, and the rights to property and a fair hearing.  (Gaurav Garg v. Union of India and ors)
    • In the meanwhile, petitioner(s) shall not transfer, alienate, encumber or dispose of any of their assets or legal rights or beneficial interest therein; and the Resolution Professional shall not proceed with filing of the report.
    • the plea said, No opportunity is contemplated in favour of the affected party by the Impugned Provisions to be heard by the Adjudicating Authority before the initiation of the insolvency resolution process.
  20. On Friday the National Company Law Tribunal (NCLT) Chennai held that failure to exercise due care and diligence was a ground to replace a liquidator. (IDBI Bank Limited v. V Venkata Sivakumar)
    • The Insolvency & Bankruptcy Code, 2016 does not prescribe any provision for replacing a liquidator. Hence, the Tribunal relied on Section 276 of the Companies Act, 2013, which provides for the grounds of removal of a liquidator.
    • Such a statement by the liquidator shook the consciousness of this court.
  21. On Friday the Supreme Court directed that no coercive action be taken against Zee Hindustan anchor Rohit Ranjan in relation to cases filed against him over a false news report claiming that Congress leader Rahul Gandhi condoned the recent killing of a man in Udaipur.
    • Issue notice. Service on the Union of India be effected through the office of the Central Agency. In the meanwhile, there will be an interim order restraining the the respondent-authorities from taking coercive steps against the petitioner to take him into custody in connection with the anchoring/telecast of DNA on 1st July, 2022.
  22. On Friday the Supreme Court is hearing a case by Zee Hindustan anchor Rohit Ranjan against the Chhattisgarh Police’s action in relation the channel’s false broadcast against Congress leader Rahul Gandhi.
  23. On Friday the Supreme Court granted interim bail to Alt News co-founder Mohammed Zubair in the case registered against him by the Uttar Pradesh police (UP Police) in Sitapur in a case of hurting religious sentiments.  (Mohammad Zubair vs State of Uttar Pradesh)
    • the Court directed, the petitioner shall be granted interim bail in connection with FIR No. 0226 dated 01.06.2022 lodged at P.S. Khairabad, District Sitapur, Uttar Pradesh for a period of five days from today or until further orders of the Regular Bench on terms and conditions to be imposed by the Judicial Magistrate-I, Sitapur, which shall include the conditions that the petitioner shall not post any tweets and shall not tamper with any evidence, electronic or otherwise in Bengaluru or anywhere else.
    • FIR was on June 1, quashing plea was rejected on June 10 and yesterday Sitapur court granted 14 days custody. This was not revealed yesterday and affidavit was filed yesterday. This is clear purposeful suppression. Such a conduct should not be encouraged.
    • Please show where you have mentioned bail was rejected ? He is seeking bail here without telling bail was rejected by a speaking order.
    • No criminal case can be made out against him. The foundation of this case is a tweet. I seek a quashing of proceedings. Questions of police or judicial custody are irrelevant now, There is no case made out and the proceedings need to be quashed. I had admitted this is my tweet. Is this a criminal offence.
  24. On Thursday A special CBI court in Mumbai reserved its verdict in the plea filed by former Maharashtra State Home Minister Anil Deshmukh seeking default bail.
    • Assuming the right to default bail accrues then the date of filing the default bail is important. The default bail should have been filed before June 7 but here the default bail was filed on June 8. The Supreme Court says that the default bail should have been filed before the filing of charge-sheet. The accused cannot have right to file default bail indefinitely. It has to be filed before the filing of charge-sheet.
    • That was the first instance of court reopening when the case came up for hearing. By the time when we made the submissions in court, they had still not submitted all relevant documents.
    • Further investigation can only be done when there was initial investigation done earlier. In the garb of further investigation, they cannot do fresh investigation.
  25. Anti-Corruption Bureau (ACB) Additional Director General of Police (ADGP) Seemanth Kumar Singh has moved the Karnataka High Court seeking expunction of the remarks made against him by Justice HP Sandesh while hearing a bail petition earlier this week. (Seemanth Kumar Singh v State of Karnataka)
    • the petition said, The petitioner has been dutifully discharging his duty and there was no basis whatsoever for the learned Single Judge to make unwarranted comments/observations against the petitioner.
    • The reputation built by the petitioner dur to years of hard work has suffered a severe dent due to the remarks made by the learned single judge.
    • Your ADGP so powerful (unclear). Some persons spoke to one of our High Court judges. That judge came and sat with me and he said giving an example of transferring of one of the judge to some other district. I will not hesitate to mention the name of the judge also! He came and sat by the side of me and there is a threat to this court.
  26. On Friday the Kerala High Court granted bail to advocate Navaneeth N Nath, a Central Government panel counsel in Kerala, who was arrested in connection with a sexual abuse complaint made against him by a colleague, another lawyer.  (Navaneeth N Nath v State of Kerala)
    • the judge remarked, What the Supreme Court held in Pramod’s case is that the long period of a relationship is indicative of an absence obtaining consent by promising to marry. In your(complainant) FIS (first information statement), no where is it indicated that you indulged in sex only with the belief that he is going to marry.
  27. A fresh plea has been filed before the Supreme Court by the Uddhav Thackeray camp of Shiv Sena challenging the decision of the Maharashtra Governor Bhagat Singh Koshyari inviting Eknath Shinde to form government in the State.  ((Subhash Desai v. Principal Secretary, Governor of Maharashtra)
    • confusion/ambiguity created illegally by the ground that he Speaker by recognising a rebel MLA who has voluntarily given up his membership of the Shiv Sena as the leader of the House and also recognising another rebel MLA as the Whip of the Shiv Sena – both in contravention of the clear intent of the Shiv Sena undisputedly led by Shri. Uddhav Thackeray.
    • the plea said, The President of the Shiv Sena (Shri Uddhav Thackeray) had publicly and admittedly not aligned/supported the BJP. In these circumstances, the satisfaction of the Governor for the purpose of calling upon Respondent No. 4 to be the Chief Minister as the head of 39 rebel MLAs of Shiv Sena (which is not endorsed by the Shiv Sena Political Party) is by itself ex facie unconstitutional. The Constitution prohibits recognition of rebel MLAs of a political party under Tenth Schedule, and the action of the Governor legitimises what is expressly prohibited by the Constitution. The Governor has sought to recognise what the Constitution prohibits.

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