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All High Courts Weekly Roundup: January 3 - January 9, 2022
Shrutika Pandey
10 Jan 2022 4:53 AM GMT
Allahabad High Court 1. 'Prayers Omnibus In Nature': Allahabad High Court Refuses To Entertain PIL On Alleged Corruption In MadarsasCase Title - Mohammad Imran v. State Of U.P.Case Citation: 2022 LiveLaw (AB) 1The High Court refused to entertain a Public Interest Litigation (PIL) plea filed by a farmer to point out corruption in the appointment of teaching and non-teaching staff in...
Allahabad High Court
Case Title - Mohammad Imran v. State Of U.P.
Case Citation: 2022 LiveLaw (AB) 1
The High Court refused to entertain a Public Interest Litigation (PIL) plea filed by a farmer to point out corruption in the appointment of teaching and non-teaching staff in certain Madarsas as the Court noted that the plea contained omnibus prayers.
"...it is apparent that the prayers, instead of being specific, are omnibus in nature. The prayer to issue such directions is absolutely vague and general in nature," The Bench of Justice Devendra Kumar Upadhyaya and Justice Subhash Vidyarthi observed after perusing the prayers of the PIL.
Case Title - Farhan Ahmad (Shanu) v. State Of U.P Thru Secretary Home Lknw.
Case Citation: 2022 LiveLaw (AB) 2
The High Court denied bail to a man accused of committing Rape by establishing a physical relationship with the Victim on a false promise to marry her and thereafter, threatening her to accept the Muslim religion.
The Bench of Justice Om Prakash Tripathi was dealing with the bail plea of one Farhan Ahmad (Shanu) who contended that he is innocent and had been falsely implicated in the case only for the purpose of blackmailing.
Case Title - Sheshmani Nath Tripathi v. E.C.I.Thru. Chief Election Commissioner,New Delhi & Anr
Case Citation: 2022 LiveLaw (AB) 3
The High Court dismissed a Public Interest Litigation (PIL) plea which sought quashing of the order of recognition given to Bharatiya Janata Party (BJP) and Indian National Congress (INC) as National Parties by the Election Commissions of India (ECI) and further, allotting symbols to them.
Essentially, the Bench of Justice Devendra Kumar Upadhyay and Justice Saroj Yadav was hearing a PIL filed by the petitioner, Sheshmani Nath Tripathi (leader of Samajwadi Party) challenging the 1989 order by the ECI recognizing BJP and INC as a National Party and reserving "Lotus" and "Hand" symbols for them.
Case Title- Smt. Prabha Shukla v. State of Uttar Pradesh & Ors
Citation: 2022 LiveLaw (AB) 4
The Allahabad High Court has recently held in a case challenging land acquisition proceedings that private interest has to give way to the larger public interest.
Upholding the proceedings for construction of a railway over-bridge, a Division Bench of Chief Justice Rajesh Bindal and Justice Piyush Agarwal observed,
"Private interest has to give way to the larger public interest. Even if there are some small discrepancies in the process of acquisition, in our opinion in the facts of the present case, the acquisition does not deserve to be set aside as otherwise the project will be delayed which will cause loss to the State besides suffering to the residents of the area, who may be deprived of using the railway over-bridge on account of delayed completion of the project. In any case, the petitioner will be duly compensated for the land owned by her."
Case Title - Aryan Srivastava v. State Of U.P. And 3 Others
Case Citation: 2022 LiveLaw (AB) 5
The High Court directed the District Magistrate, Jaunpur to examine and pass a reasoned order in a claim for compensation made in a case of a teacher's death who died due to COVID during the Uttar Pradesh Panchayat Polls last year.
The Bench of Justice Ashwani Kumar Mishra and Justice Vikram D. Chauhan was hearing the plea of one Aryan Srivastava whose mother was assigned election duty in UP Panchayat Elections during which she contracted COVID-19 and died thereafter.
6. Offence Punishable U/S 506 IPC If Committed In Uttar Pradesh Is A Cognizable Offence: Allahabad High Court
Case Title - Rakesh Kumar Shukla v. State of U.P. and Another
Case Citation: 2022 LiveLaw (AB) 6
The High Court observed that an offence under Section 506 IPC (Punishment for criminal intimidation), if committed in the State of Uttar Pradesh is a cognizable offence
To conclude thus, the Bench of Justice Subhash Vidyarthi referred to a notification published in the U.P. Gazette dated 31st July 1989, notifying the declaration made by the then Hon'ble Governor of UP that any offence punishable under Section 506 of the IPC when committed in Uttar Pradesh, shall be cognizable and non-bailable.
Case Title - Janki Prasad v. Sanjay Kumar And Ors
Case Citation: 2022 LiveLaw (AB) 7
The High Court recently ruled that when an appeal has to be dismissed by the appellate Court on account of the fact that the counsel for the appellant though physically present in the Court, refuses to argue the same for any reason, the dismissal can't be on merits in view of the Explanation to Order XLI Rule 17 CPC.
Explanation to Order XLI Rule 17 CPC states that the appellate Court can't dismiss the appeal on the merits in cases where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing.
Agaisnt this backdrop, the Bench of Justice Salil Kumar Rai, while dealing with the Second Appeal of one Janki Prasad held the following:
"...the Explanation to Order XLI Rule 17 CPC also applies in cases where the counsel for the appellant, though physically present in the Court when the appeal is called on for hearing, refuses to argue the appeal or for any other reason is not able to address the Court and in such situations, the appellate Court has no jurisdiction to decide the appeal on merits."
Case Title - Ashwani Kumar v. State of U.P. connected wiith Atul Kumar And 2 Ors. v. State of U.P.
Case citation: 2022 LiveLaw (AB) 8
Noting that the prosecution, as a matter of routine, does not lay emphasis on the production of independent witnesses during the course of the trial, the Allahabad High Court observed that the failure of the investigating agency to record statements of such witnesses during an investigation must be viewed seriously by the courts of law.
Dealing with a criminal appeal against a murder conviction where no independent witnesses were examined or produced, the Bench of Justice Attau Rahman Masoodi and Justice Manish Kumar was of the further opinion that, that time is not far when the courts may have to invoke the suo motu powers to summon such witnesses for which there ought to exist a witness protection law.
Other Significant Developments
Case Title - Imtiyaj Ali & Ors. v. Addl.Commissioner Faizabad-I,Mandal Ayodhya,Ayodhya & Anr
The High Court observed that the Members of the Bar are free to hold a meeting to condole the demise of any member or anyone else, but they do not have the right to obstruct the functioning of Courts.
The Bench of Justice J. J. Munir observed this while dealing with the affidavits filed before it by the President and the Secretary of Commissioner Court's Bar Association, Ayodhya tendering their unconditional apology for the repeated strikes.
Case Title - Sanjay Goel and another v. State Of U.P. and 2 Others
The High Court stayed a First Information Report (FIR) registered against the Director and Manager of OPPO Mobiles India Pvt. Ltd. in an alleged mobile explosion case.
Essentially, a case had been registered against the Director and Manager of OPPO Mobiles India Pvt. Ltd. pursuant to the lodging of an FIR by the third respondent/informant alleging that he bought a mobile phone of OPPO brand in July 2019 and the said mobile phone exploded in his pocket on September 2020, due to which he sustained injuries.
A day after Allahabad High Court decided to hear cases virtually in view of rising cases of COVID in the state of Uttar Pradesh, the High Court today issued a revised notification allowing for a Hybrid mode of hearing (in both the benches of HC) w.e.f. January 4.
This decision has been taken after the Advocates' Associations (Oudh Bar Association and High Court Bar Association, Allahabad) raised their demands for allowing a Hybrid mode of hearing and protested against the Virtual Only mode of hearing.
Andhra Pradesh High Court
Case Title: TMD Rafi and Ors v. State of Andhra Pradesh and Ors
Four applicants, who say that they are followers of Sanatan Hindu Dharm, have approached Supreme Court seeking vacation of the Top Court's interim order dated January 27, 2020 and December 17, 2021 wherein the Top Court had permitted people from all religions to participate in the process of auction of leases of shops in the Sri Bramaramba Mallikarjuna Swamy Temple at Kurnool Andhra Pradesh and in the shopping complex.
The interim order dated December 17, 2021 was passed by the bench of Justices DY Chandrachud and AS Bopanna while hearing a contempt petition filed in the SLP where the top court had in January, 2020 stayed the September, 2019 judgment of the Andhra Pradesh High Court ("impugned judgement").
Case Title- XXX vs State of Maharashtra
Citation : 2022 LiveLaw (Bom) 1
The Bombay High Court has directed the state Government to forthwith constitute medical boards based on the Amended Act on medical termination of pregnancy so as to not cause hardships to women seeking termination of pregnancy.
The bench observed that Section 3(2)(b) of the Medical Termination of Pregnancy (Amendment) Act, 2021 has increased the limitation to undergo medical termination of pregnancy from the earlier 20 weeks to 24 weeks. It further added that section 3(2B), in fact, carved out an exception in cases of foetal abnormalities and did not limit such termination to the 24 weeks period otherwise provided in the subsection.
2. 'Nobody Has A Fundamental Right To A Public Holiday': Bombay High Court
Case Title - Kishnabhai Nathubhai Ghutia & Anr v. Hon'ble Administrator Union Territory & Ors.
Citation: 2022 LiveLaw (Bom) 2
The Bombay High Court has held that declaring a public holiday is a matter of governmental policy, and there is nobody can claim a fundamental right to public holidays. A Divison Bench of Justices Gautam Patel and Madhav Jamdar observed, "There is no legally enforceable right that can be said to have been infringed. Nobody has a fundamental right to a public holiday."
Case Title - Case Title: Angre Port Private Ltd. Vs. TAG 15 (IMO. 9705550) & Anr
Citation: 2022 LiveLaw (Bom) 3
In a significant judgment, the Bombay High Court has held that a Shipping Company slipping into liquidation under the Insolvency and Bankruptcy Code will not impact an ongoing Admiralty Suit against its Vessel as the two are separate entities. The judgement authored by Justice BP Colabawalla explains the interplay between the bar against further suits and proceedings under S.33 (5) of the IBC, 2016 and the Admiralty Act and the effect that insolvency proceedings would have on admiralty claims. The judgement also holds that Penal Birth Hire charger are not in the nature of a penalty and therefore damages would not have to be proved as required under Section 74 of the Indian Contract Act.
Case Title - Ms. Kanaka Kedar Sapre & Mrs. Sudha Mukund Shukla (Mother) vs . Kedar Narhar Sapre & others
Citation : 2022 LiveLaw (Bom) 4
The Bombay High Court ruled that an aggrieved person, as defined under the Protection of Women from Domestic Violence Act (DV Act), "must be alive at the time of filing of the petition", and someone cannot file an application for monetary reliefs under the act after her demise.
The court dismissed an application filed by a minor girl (through her maternal grandmother) "on behalf of her mother" seeking monetary reliefs, streedhan and compensation against her father and paternal grandparents.
Other Significant Developments
Judicial Magistrate PV Sapakal directed a police investigation under section 202 of the CrPC to probe allegations made by Madan Kurhe, a final year law student. The court said that since the accused reside beyond the court's jurisdiction "it is necessary to postpone the issue of process against the alleged accused."
The Bombay High Court on Friday extended Telugu poet Varavara Rao's time to surrender before prison authorities till February 5, while posting his application for extension of medical bail for further consideration on February 4. A division bench of Justices SS Shinde and NR Borkar expressed concern about the speed at which the third wave is spreading and inquired if Rao could be sent back to prison during this time.
3. Godman Kalicharan Maharaj Granted Bail In Pune Hate Speech Case But To Remain In Prison
A Judicial Magistrate's Court in Pune has granted bail to 'godman' Kalicharan Maharaj alias Abhijit Srag in a case of alleged inflammatory speech and hurting religious sentiments. The alleged hate speech was delivered during 'Shiv Pratap Din' program on December 19, 2021, organised to celebrate the killing of Adilshahi commander Afzal Khan by Chhatrapati Shivaji Maharaj in 1659.
Case Title: Kangana Ranaut vs Javed Akhtar & State of Maharashra
Case No: Cr Rev Appli 251 of 2021
A Sessions Court in Mumbai has rejected actress Kangana Ranuat's revision application which sought to set aside an order passed by the in-charge Chief Metropolitan Magistrate (CMM) in the defamation case filed by lyricist Javed Akhtar. By that order passed on October 21, the in-charge CMM had rejected Ranaut's plea to transfer the defamation case filed by Akhtar against her to a different Magistrate.
5. BJP MLA Nitesh Rane Approaches Bombay High Court Seeking Anticipatory Bail In Attempt To Murder Case
BJP MLA Nitesh Rane, son of Union Minister Narayan Rane, has approached the Bombay High Court seeking pre-arrest bail in an alleged attempt to murder case in Sindhudurg, Maharashtra. A Sessions Court had, earlier, denied anticipatory bail to him and a co-accused Sandesh Sawant. The Kankavli Police booked them under sections 307, 120(B) read with 34 of the Indian Penal Code.
The State has made an oral statement not to arrest him till the next date of the hearing, on January 12, 2022.
Calcutta High Court
Case Title: Mangal Sardar v. High Court Administration and Ors
Citation: 2022 LiveLaw (Cal)1
The High Court has directed the State government to apprise the Court about the steps which are taken to set up video conferencing facilities in the tribunals and forums of the State. Furthermore, the High Court Administration was directed to procure reports from all the district courts in respect of the existing video conference facilities.
A Bench comprising Chief Justice Prakash Shrivastava and Rajarshi Bharadwaj observed, "Learned counsel for the High Court Administration is also directed to get the reports from all the district courts in respect of the existing video conference facility and the need and requirement of its further enhancement and improvement. He will place the report in tabulated form before the concerned Committee who, after examining the same, will take necessary decision to forward it with/without modifications to the State for taking steps to provide the requisite infrastructure."
Case Title: Mousumi Roy v. West Bengal State Election Commission & Ors
Citation: 2022 LiveLaw (Cal) 3
The High Court has sought response from the West Bengal government as well as the State Election Commission as to why Howrah Municipal Corporation has been excluded from the election schedule notified on December 28, 2021.
It was only last month that the State Election Commission, represented by Senior Advocate Jayanta Mitra, had informed a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bhardwaj that the first phase of the remaining municipal polls would be held on January 22, 2022 and would include municipal bodies of Howrah, Chandannagar, Bidhannagar, Asansol and Siliguri.
Case Title: Dr. Avinandan Mondal v. State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 4
The High Court allowed the State Government to hold this year's Gangasagar Mela amidst the fresh surge in Covid-19 cases in the State of West Bengal. However, certain conditions have been imposed by the Court.
It may be noted that the Court, on Thursday, had reserved judgment in the plea seeking cancellation of this year's Gangasagar Mela amidst the spike in Covid-19 cases in the State.
Every year, on Makar Sankranti, lakhs of Hindu devotees flock to the Sagar Island in West Bengal's South 24 Parganas district to take a holy dip and offer prayers at the Kapil Muni temple. This year, the Mela is scheduled to take place from January 8 to January 16, 2022.
Case Title: Rama Prasad Sarkar v. The State of West Bengal & Ors.
The High Court asked the West Bengal State Government to file an affidavit disclosing the measures which can be taken to avoid Child Trafficking incidents in the future.
The Bench of Chief Justice Prakash Shrivastava and Justice Kesang Doma Bhutia sought the details on the above-mentioned subject while dealing with a Public Interest Litigation (PIL) plea filed raising the issue of child trafficking in the state.
The PIL, moved by petitioner in person Rama Prasad Sarkar, referred to the alleged child trafficking racket busted in Salkia, Howrah on 20th November 2021 and it also raised the grievance that no proper action has been taken in respect thereof. Further, the PIL prayed for a direction to the State Government with regard to taking of appropriate measures so that such incidents may not take place in future.
Chhattisgarh High Court
In view of the increasing COVID infection in the state, the Chhattisgarh High Court has decided that it shall be functioning via Virtual Conferencing Mode only and the Judges shall be holding the Court proceedings either from residence or in the Court Hall/Chamber.
Delhi High Court
1. Arrest In Breach Of 'Arnesh Kumar' Guidelines : Delhi High Court Sentences Police Officer To One Day Imprisonment
Case Title: RAKESH KUMAR v. VIJAYANTA ARYA (DCP) AND ORS
Citation: 2022 LiveLaw (Del) 1
In a significant judgment, the Delhi High Court held a police officer guilty of contempt of court for arresting a man in violation of the principles laid down by the Supreme Court in the case Arnesh Kumar vs State of Bihar. The Court sentenced the police officer to one-day imprisonment for contempt of court.
Justice Najmi Waziri also imposed a fine of Rupees 2000 on the police officer and directed him to pay costs of Rupees 15,000 to the petitioner, who had suffered incarceration for 11 days before release on bail.
In the judgment, the Court observed that subsequent release or acquittal of an innocent is no reparation to the loss of reputation and personal liberty caused by illegal arrest.
2. "Mother Cannot Be Deprived Of Freedom To Take Decision To Continue Or Not Continue With Pregnancy": Delhi HC Allows Termination Of 28 Weeks Foetus
Case Title: xyz v. GNCTD
Citation: 2022 LiveLaw (Del) 2
Observing that reproductive choice is a facet of reproductive rights of a woman and a dimension of her personal liberty, the Delhi High Court has allowed termination of 28 weeks foetus of a 33 year old woman. The foetus was suffering from various abnormalities including Tetralogy of Fallot (TOF) with Absent Pulmonary Valve Syndrome (APV).
Justice Jyoti Singh also observed that the mother cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy in the backdrop of the foetal abnormalities brought forth in the Medical Opinion of the Board.
"As repeatedly held by the Courts, in the judgements referred above, reproductive choice is a facet of reproductive rights of a woman and a dimension of her 'personal liberty', enshrined in Article 21 of the Constitution of India and thus the Petitioner cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy, in the backdrop of the foetal abnormalities brought forth in the Medical Opinion of the Board," the Court said.
3. Future-Amazon : Article 227 Can't Be Invoked To Challenge Case Management Orders Of Arbitral Tribunal - Delhi High Court
Case Title: FUTURE RETAIL LTD. Vs. AMAZON.COM NV INVESTMENT HOLDINGS LLC & ORS.
Citation: 2022 LiveLaw (Del) 3
The Delhi High Court has held that the High Court, in the exercise of jurisdiction under Article 227, cannot dictate to a duly constituted Arbitral Tribunal, the manner and the procedure of carrying out the arbitration proceedings.
On the aspect of the limited scope of interference under Article 227 over Arbitral Tribunal's procedure, Justice Amit Bansal added that there is only a small window for interference with orders passed by the Arbitral Tribunal while exercising jurisdiction under Article 227.
The observations came while the Court dismissed the two petitions moved by the Future Group challenging the two orders passed by the Singapore Arbitration Tribunal.
The impugned orders deferred the hearing in the plea filed by Future Group seeking termination of the arbitration proceedings instituted by Amazon. Future Group sought a direction that the the Arbitral Tribunal should first hear its applications to abort the proceedings before final hearing of the matter. Turning down this plea, the High Court said that Article 227 cannot be invoked to challenge the case management orders passed by an Arbitral Tribunal.
4. Mental Cruelty: Delhi HC Dissolves Marriage On Ground That Husband Treated Wife As 'Overseas Wife' For Temporary Companionship
Case Title: VANDANA SINGH v. SATISH KUMAR
Citation: 2022 LiveLaw (Del) 4
The Delhi High Court this week dissolved marriage between a couple on the ground of cruelty, observing that the husband treated the wife as his 'overseas wife', only to use her as a temporary companion and that their marital bond was beyond repair.
Observing that continuation of such a matrimonial bond is sufficient to cause immense mental cruelty to the wife, Justice Vipin Sanghi and Justice Jasmeet Singh said that there was no reason to keep the moribund marriage alive.
"The objective of the institution of marriage is to bring two souls together, who embark on the adventurous journey called life. They share experiences, smiles, sorrows, achievements and struggles. They uplift and support each other in all situations with their emotional, mental and physical presence. On this journey of life, they create personal, social and spiritual bonds, everlasting memories, future plans, through which they co-exist in the society," the Court said.
"An essential aspect of marriage is being present in each other's life, physically and emotionally. It is not to say that every marriage, where the couple stays apart from each other for work or other obligations consensually, is a broken one. However, a marriage where there is neither sharing of emotions, nor of dreams, joys, sorrows, memories (happy or sad), is merely a legal bond," it added.
5. Bail Once Granted Must Only Be Retracted In Face Of Grave & Exacerbating Circumstances: Delhi High Court
Case Title: CHARU SONEJA v. STATE (NCT OF DELHI) AND ORS
Citation: 2022 LiveLaw (Del) 5
Reiterating that personal liberty is one of the cherished constitutional freedoms, the Delhi High Court has observed that once bail is granted to an accused pending completion of the Trial, the same must only be retracted in the face of grave and exacerbating circumstances.
Analyzing the difference between an order 'rejecting' an application for bail and an order for 'cancellation' of bail, Justice Subramonium Prasad was of the view that the party challenging bail already given needs to demonstrate, by showing evidence and instances, that the person enlarged on bail has been threatening the victim and may consequently cause personal harm to the victim or her family, is tampering with evidence or influencing prosecution witnesses to the extent that it would vitiate the Trial and lead to a miscarriage of justice.
"Personal liberty is one of the cherished constitutional freedoms. Once granted to an accused pending completion of the Trial, it must only be retracted in the face of grave and exacerbating circumstances," the Court said.
6. Litigant Ought Not To Suffer Merely Because Of Wrong Listing Date Entered In Advocate's Court Diary: Delhi High Court
Case Title: BHIKAM MASIH v. M/S TRIG DETECTIVES PVT. LTD.
Citation: 2022 LiveLaw (Del) 6
The Delhi High Court has observed that a litigant ought not to suffer merely because a wrong entry or a wrong date is entered in it's Advocate's court diary, thereby precluding his appearance before the Court on the fixed date.
Justice Pratibha M Singh however added that the Court or the Tribunal would have to examine as to whether the said wrong entry is merely an excuse or whether it is genuine.
"Advocates who appear before a court of law usually have the practice of maintaining their court diary. The entries in the same are maintained by court clerks working with advocates. In the said diary, the previous date, the number and name of the case, is entered. Some advocates' offices or court clerks also enter the forum where the case is listed. Once the matter is over, the next date is entered in the diary. In the diary, on the date to which the matter is adjourned, the case name is again entered. In this process, it is usual for a wrong entry to take place, due to inadvertence by the court clerk or counsel," the Court said.
7. Air India Disinvestment Saw Keen Competition, Not Rigged In Favour Of Tata Group: Delhi High Court In Subramaniam Swamy's Plea
Case Title: Dr. Subramanian Swamy v. Union of India & Ors.
Citation: 2022 LiveLaw (Del) 7
The Delhi High Court has held that the bidding process for disinvestment of then national airline, Air India, was not rigged in favour of the Tata Group. A Division Bench of Chief Justice DN Patel and Justice Jyoti Singh observed that the bidding process saw keen competition with seven Expression of Interests and two bidders, and it cannot be said that the process was tailor made to facilitate the Talace Private Limited, a wholly owned subsidiary of Tata Sons, which emerged as the highest bidder.
Holding thus, it dismissed the petition filed by BJP MP Subramanian Swamy, seeking quashing of the disinvestment process, on the ground that the bid process was arbitrary, corrupt, against public interest and rigged in favour of Tata group.
Also Read: Delhi High Court Dismisses BJP MP Subramanian Swamy's Challenge To Air India Disinvestment Process
8. UPSC Civil Services: Delhi High Court Dismisses Plea To Postpone Mains Exam Amid Rising Covid-19 Cases
Case Title: Rajat Jain and Ors. v. UPSC & Anr.
Citation: 2022 LiveLaw (Del) 8
The Delhi High Court has dismissed the plea seeking postponement of UPSC Civil Services Mains Examination, 2021 scheduled from January 7 to January 16, 2022, in view of Covid-19 third wave and spread of the new Omicron variant.
Justice V Kameswar Rao said, "I find, the press release do indicate that the UPSC is conscious of the prevailing situation and the safety and convenience of the candidates. Preparations for such an important exam are made well in advance maintaining confidentiality and secrecy in respect of answer sheets and question papers and all preparations being in place, it shall not be in public interest to interdict the process. The apprehension of 19 petitioners cannot outweigh the interest of thousands of other candidates, (apart from public interest), who have toiled themselves to prepare themselves for the examination."
Going through the averments made in the petition, the Court was of the view that they were general in nature without any specific details.
9. Trademark Infringement Suit Has To Be Stayed Till Disposal Of Rectification Proceedings Before Registrar: Delhi High Court
Case Title: Hamdard National Foundation (India) & Anr. v. Sadar Laboratories Pvt. Limited
Citation: 2022 LiveLaw (Del) 9
The Delhi High Court has made it clear that under Section 124 of the Trade Marks Act, 1999, when rectification proceedings are pending, the suit against infringement of Trademark has to be stayed, pending final disposal of such proceedings.
Justice Asha Menon thus stayed the suit filed by Hamdard Dawakhana, against alleged infringement of its registered trademark 'Rooh Afza'. The Bench observed,
" In the light of Section 124(1)(b)(i) of the Trade Marks Act, 1999, the suit is stayed pending the final disposal of the rectification application filed by the plaintiffs. On the conclusion of those proceedings, either side may move an application for listing of the suit before the court."
10. 'Medical Manual Not Sole Repository Of All Ailments': Delhi High Court Denies Relief To JAG Candidate Declared Unfit Due To High Haemoglobin
Case Title: MILASH ARROL NORONHA v. UNION OF INDIA & ORS
Citation: 2022 LiveLaw (Del) 10
The Delhi High Court has held that the Medical Manual (Manual of Medical Examination and Medical Standard for Various Entries into Army, TRG Academies and Military School) cannot be stated to be the sole repository of all ailments that may make a person medically unfit for appointment in the Armed Forces.
A bench comprising of Justice Navin Chawla and Justice Manmohan added that the Medical Manual cannot lay down all the complex ailments or grounds that would make a candidate unfit for appointment to Armed Forces, whose demands are most extracting with the personnel being posted to extreme weather conditions.
The Court was dealing with a petition filed by a law graduate who had applied for the post of Judge and Advocate General (JAG) in 'JAG ENTRY SCHEME 27TH COURSE (OCT 2021)'. After completing two stages of the selection process, he was recommended as the top candidate in his batch, for a medical examination.
11. Delhi High Court Allows Medical Termination Of Pregnancy Exceeding 28 Weeks Citing Foetal Abnormalities, Emotional Distress Of Mother
Case Title: SANGEETA THAPA v. GOVERNMENT OF NCT OF DELHI & ORS.
Citation: 2022 LiveLaw (Del) 11
The Delhi High Court has allowed termination of pregnancy of a 28 year old woman whose gestational period had exceeded 28 weeks after taking note of her mental and emotional distress apart from the foetus abnormalities.
Justice Rekha Palli relied on a recent order of a coordinate bench wherein the Court allowed termination of 28 weeks foetus of a 33 year old woman observing that reproductive choice is a facet of reproductive rights of a woman and a dimension of her personal liberty. The Court had also observed that the mother cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy in the backdrop of the foetal abnormalities brought forth in the Medical Opinion of the Board.
The petitioner in this case had sought medical termination of her pregnancy on the ground that the foetus was suffering not only from Edward Syndrome (Trisomy 18) but also from non-ossified nasal bone and bilateral pyelectasis.
12. [POCSO] 'Penetration Sufficient, Presence Of Semen Not Necessary': Delhi High Court Upholds Conviction Of Man For Raping 5 Yr Old
Case Title: RAM NAWAL v. STATE
Citation: 2022 LiveLaw (Del) 12
The Delhi High Court has upheld the conviction and sentence awarded to a man for raping a 5 year old minor victim in a POCSO case. The Court observed that penetration is sufficient in order to constitute an offence under Section 376 (rape) of IPC and Section 6 of the POCSO Act and that presence of the semen is not necessary.
"Undoubtedly, as per the FSL and DNA fingerprinting report neither any semen was detected nor were the alleles from the appellant accounted in the blood smears or the vaginal smears of the prosecutrix. To constitute an offence punishable under Section 376 IPC and Section 6 of the POCSO Act, penetration is sufficient and it is not necessary that semen needs to be essentially present," Justice Mukta Gupta observed.
The Court was dealing with an appeal challenging the judgment dated 12th January, 2018 wherein the appellant was convicted under sec. 6 of the POCSO Act. Sec. 6 of prescribes the punishment for aggravated penetrative sexual assault.
13. Father Can't Abdicate His Responsibility Of Looking After Unmarried Daughters, Obligated To Take Care Of Their Education & Marriage Expenses: Delhi HC
Case Title: POONAM SETHI v. SANJAY SETHI
Citation: 2022 LiveLaw (Del) 13
The Delhi High Court has observed that a father cannot abdicate his responsibility of looking after his unmarried daughters and that he has a duty and obligation to maintain them, including taking care of their expenses towards education and marriage. A Bench of Justices Vipin Sanghi and Jasmeet Singh added that 'Kanya Daan' is a solemn and pious obligation of a Hindu Father, from which he cannot renege.
The Court thus directed the father to pay a sum of Rs. 35 Lakhs and 50 Lakhs towards the expense of marriages of his two daughters. It allowed an appeal filed by the wife challenging a Family Court order, though granting her divorce on the ground of cruelty, however, denying maintenance for herself and the two major daughters.
14. Offence Of Rape Not Waived: Delhi HC Refuses To Quash FIR Against Govt Servant Following Settlement & Marriage With Victim
Case Title: SWATANTRA KUMAR JAYSAWAL v. STATE & ANR.
Citation: 2022 LiveLaw (Del) 14
The Delhi High Court has refused to quash an FIR against a Government Servant containing allegations of rape, observing that such an FIR cannot be quashed on the basis of settlement between parties and their subsequent marriage as it does not waive off the offence alleged.
Reiterating that the act of rape is not an act against individual but is an offence against the society, Justice Rajnish Bhatnagar was of the view thus:
"In the present case, the petitioner is a Government Servant, working as Superintendent with Customs & CGST department, Govt. of India, holding a Gazetted post. So being a Government Servant, he is expected to maintain high moral rectitude and decent standard of conduct in his personal/private life and not bring discredit to his service by his misdemeanours."
It added, "In fact a Government servant has all the more responsibility as far as his conduct is concerned towards the society. Rape not only destroys the personality of the victim but it also scars the mental psyche of the victim which remain embedded on the mind of the victim for years together. The charges of rape are of grave concern and cannot be treated in a casual manner."
Other Significant Developments
1. Right To Street Vending vs Rights Of General Public: Delhi High Court Questions Centre Over A Balanced Approach
The Delhi High Court this week questioned the Central Government as to whether the right of street vending impinges on the fundamental rights of general public when implemented on the ground.
A bench of Justice Vipin Sanghi and Justice Jasmeet Singh, which was hearing a batch of pleas challenging the vires of Street Vendors Act, 2014 and the 2019 scheme framed thereunder, orally remarked thus: "Whenever the Supreme Court has said that there is fundamental right to vending, the spirit has been that every fundamental right comes with a limitation or restriction. The point is, where have you put the scale? Where are you putting the fulcrum? Have you balanced?"
2. Delhi High Court Lauds Efforts Of Bar Members For Contributing To College Fees Of Two Girls As Their Father Failed To Pay Them Monies
The Delhi High Court has lauded the efforts made by the members of the bar for jointly contributing towards payment of college fees of two girls after their father failed to pay them monies. Many lawyers who were logged-in and were awaiting their turns, had spoken up about offering their contributions for the education expenses of the two girls.
Taking note of the fact that the mother and her two daughters were overwhelmed by the generous outpouring of financial assistance and emotional support by the lawyers, Justice Najmi Waziri said: "The Court records its appreciation that the members of the Bar have responded so robustly to ameliorate the financial difficulties of the two young students and have further assured that the studies shall not be hindered for want of finances."
3. Take Immediate Steps For Filling Vacancies, Providing Infra At Consumer Disputes Redressal Fora Across State: High Court Tells Delhi Govt
The Delhi High Court has called for a report in respect of filling up of vacancies and infrastructure requirements across all District Fora and the State Consumer Redressal Forum in the city. Justice Pratibha M Singh directed the Principal Secretary-cum-Commissioner of the Department of Consumer Affairs of the Delhi Government to submit the said report within six weeks.
The Court also directed the said officer to coordinate with Justice Sangita Dhingra Sehgal (Retd.), President of the State Consumer Redressal Forum, in order to ascertain the vacancies across the District Fora in Delhi and further requirements of the said fora and the State Forum
4. 'Uniform Civil Code Is Public Policy Matter, No Direction Can Be Issued To Parliament': Centre To Delhi High Court
The Central Government has informed the Delhi High Court that implementation of the Uniform Civil Code, a directive principle under the Constitution, is a matter of public policy and that no direction in this regard can be issued by the Court.
The submission has come in the counter affidavit filed by the Centre in the PIL filed by BJP leader Ashwini Upadhyay, seeking introduction of Uniform Civil Code in the country. The Centre further submitted that the Parliament exercises sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation.
5. 'Marital Rape Biggest Form Of Sexual Violence Against Women In Matrimonial Home, Goes Unreported": Sr Adv Colin Gonsalves Argues In Delhi HC
In a bunch of pleas seeking criminalization of marital rape in India, one of the petitioners told the Delhi High Court that marital rape is the biggest form of sexual violence against women which is never reported, analyzed or studied.
Senior Advocate Colin Gonsalves appearing for petitioner submitted before a bench comprising of Justice Rajiv Shakdher and Justice C Hari Shankar thus: "This is probably the biggest form of sexual violence against women in the matrimonial home, in the confines of the home, unrecorded, unreported, there is no FIR. If one counts the total number of married men and married women, how many times this rape takes place within an institutional marriage, it's a huge figure which is never reported or analysed or studied."
6. Espionage Case: Delhi High Court Grants Bail To Freelance Journalist Rajeev Sharma
The Delhi High Court has granted bail to freelance journalist Rajeev Sharma in connection with a case alleging that he supplied confidential information to Chinese Officials, in exchange of remuneration. Enforcement Directorate had initiated investigation on the basis of an FIR filed against Sharma under the provisions of IPC and Official Secrets Act.
It was the case of ED that Sharma had supplied confidential information to Chinese Officials in return of some remuneration thereby comprising the security and national interest of the Country.
It was however submitted that the ED is mischievously carrying out the instant parallel proceedings pursuant to the investigation carried out by the Special Cell in order to harass him. It was also submitted that he can explain each and every minute detail of the payments received by him and that he was absolutely innocent.
7. 'We Would Like To Know Percentage Of Severe Cases': High Court Inquires About Covid-19 Situation In Delhi
Amid rising cases of Covid-19 and spread of its Omicron variant, the Delhi High Court has inquired about the public health conditions in the national capital.
A Division Bench of Justices Vipin Sanghi and Jasmeet Singh told the Delhi government that it would like to know the percentage of severe Covid-19 cases in the city. It also enquired about the percentage of Omicron cases.
Senior Advocate Rahul Mehra, appearing for GNCTD, told the Bench that this time, the situation is very different from what happened during the second wave and there is comparatively less hospitalization. He added that even the span of home isolation has been reduced to 7 days this time, and there is no need for getting tested as negative. A fresh report detailing the latest position will be filed in the Court, he said.
8. Delhi High Court Stays TDSAT's Order Restraining TRAI From Taking Action Against Vodafone Idea Ltd. On Mobile Number Portability
The Delhi High Court has stayed an order passed by the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) restraining the Telecom Regulatory Authority of India (TRAI) from taking any precipitative action against the Vodafone Idea Limited on mobile number portability.
The impugned order dated December 24, 2021 had stayed a direction passed by TRAI dated December 7, 2021 directing all service providers to enable with immediate effect, for all mobile subscribers, the facility to send SMS on short code 1900, in order to exercise their right to avail porting out facility. The said portability facility is in accordance with the MNP Regulations, 2009.
9. Won't Insist On Physical Appearance Of Amazon Officials : Enforcement Directorate Tells Delhi High Court
The Delhi High Court this week adjourned to January 12 the hearing in the plea filed by Amazon Wholesale India Pvt. Ltd. challenging the jurisdiction of the Directorate of Enforcement to investigate the matters beyond the scope of powers prescribed under the Foreign Exchange Management Act (FEMA).
Justice Rekha Palli deferred the hearing after taking note of the fact that Senior Advocate Siddharth Luthra appearing for Amazon Wholesale India Pvt. Ltd. sought to rely upon certain judgments, copies of which were circulated early in the morning.
An oral assurance was given by Additional Solicitor General SV Raju, appearing for ED, that in view of the rising Covid 19 cases it will not insist on physical appearance and will not call anyone to Delhi till the next date of hearing.
10. 'Doorstep Ration Delivery Scheme Is In Public Interest; LG Taking Obstructive Approach': Delhi Govt Tells High Court
The Delhi High Court this week continued hearing a plea filed by Delhi Sarkari Ration Dealers Sangh, opposing the State Government's scheme for door step delivery of ration.
Senior Advocate Dr. AM Singhvi, appearing for the Delhi Government, made three-fold submissions: (i) the scheme is proposed in public interest, to uphold the citizens' right to food; (ii) the National Food Security Act does not prohibit doorstep delivery of ration; and (iii) the Delhi LG has adopted an 'obstructive approach' to stall the implementation of the scheme.
11. Consider Early Re-Testing Of COVID-19 Positive International Travellers: High Court Tells Delhi Govt
The Delhi High Court has said that it expects the Delhi Government to consider expeditiously the issue of early re-testing of international travellers who are testing COVID 19 positive in case there are no guidelines framed by the Central Government in this regard.
Justice Rekha Palli was dealing with a petition filed by a mother whose son, an 18 years old student returned from the UK, was found to be positive for the COVID-19 at the IGI airport after his swabs were taken for testing.
The petitioner had therefore approached the Court with a grievance that despite her son having no symptoms, he was compelled to stay at a private hospital and despite his repeated requests, no RTPCR test was conducted.
Gujarat High Court
1. High Court's Language Is English; Party Can't Insist On Speaking Another Language : Gujarat HC
Case Title: SUO MOTU v. SAMNA BHRASHTACHAR KA NEWS PAPER & Anr.
The High Court stated that the language of the Court is English and that a party cannot insist on addressing the Court in any other language. The Court referred to Article 348 of the Constitution which mandates that the language of the Court shall be English.
A division bench comprising Chief Justice Aravind Kumar and Justice Ashutosh J Shastri took objection to a contemnor, who was appearing as party-in-person, insisting that he will address the Court only in Gujarati.
Gauhati High Court
Case Title: ALL ASSAM TRANSGENDER ASSOCIATION v. THE STATE OF ASSAM AND 7 ORS
The Gauhati High Court has called for the reply of the Assam Government over its failure to establish a Transgender Welfare Board and a Transgender Cell in the State. Essentially, the Bench of Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia was hearing a Public Interest Litigation (PIL) plea filed by the All Assam Transgender Association.
The Association alleged that a Transgender Welfare Board and a Transgender Cell are liable to be established in the State of Assam, however, the same has not been done.
Case Title: Arif Md Yeasin Jwadder v. The State of Assam and 4 Ors
Hearing a Public Interest Litigation (PIL) plea moved before it seeking an independent probe into the alleged fake encounters of the Assam Police, the High Court asked the State Government to apprise the Court about the "alleged" encounter killings and the action taken by the State.
The Bench of Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia heard Senior Advocate Indira Jai Singh who appeared for the petitioner, Delhi-based Lawyer- Arif Jwadder, and gave one week time to the Advocate General for Assam, D. Saikia to file his response in the matter.
Case Title: PS Mohan v. State Of Karnataka
Citation: 2022 LiveLaw (Kar)1
The Karnataka High Court said that no permission of the Central Government was required to construct lodges/ resorts within the reserve forest area at Dubare in Kodagu district as the concerned company- Jungle Lodges and Resorts Limited- is owned and controlled by the Karnataka Tourism Development Corporation.
2: Karnataka High Court Directs Govt To Immediately Start Construction Of Organ Transplantation Institute In Bengaluru
Case Title: Dr. R. Chandrashekara v. State Of Karnataka
Citation: 2022 LiveLaw (Kar) 2
The Karnataka High Court on Tuesday directed the State Government to immediately start construction of Gastroenterology Science & Organ Transplantation Institute in Bengaluru and complete the same in a time bound manner. It will be the first hospital only for organ transplant in the country.
A division bench of Chief Justice Ritu Raj Awasthi and Justice Suraj Govindaraj dismissed a petition filed by Dr. R. Chandrashekara and Dr. B. Rudrappa, pending which the construction of the hospital had been put on hold.
3: 'No Prohibition On Ordering DNA Test In Deserving Cases,Does Not Amount To Self-Incrimination Under Article 20(3)': Karnataka High Court
Case Title: Malappa @Malingaraya v. State of Karnataka
Citation: 2022 LiveLaw (Kar) 3
The Karnataka High Court has dismissed a petition filed by a rape accused seeking to quash the DNA report which confirmed him to be the biological father of a child born to the victim of sexual assault. Justice HP Sandesh dismissed the petition filed by accused Mallapa @Malingarya. The Court said, "It is clear that ordering for DNA itself should not be as a matter of routine but wherein deserving cases, the Court can direct for DNA test and there is no prohibition for ordering DNA test and the same is subject to each facts and circumstances of the case."
4: Enforcement Directorate May Probe PMLA Cases Throughout India, Including J&K: Karnataka High Court
Case Title: Anish Mohammed Rawther v. Enforcement Directorate
Citation: 2022 LiveLaw (Kar) 4
The Karnataka High Court has said that the Enforcement Directorate can probe a case under the provisions of Prevention of Money Laundering Act, throughout India, including the Union Territory of Jammu and Kashmir. Justice Krishna S Dixit said, "Sub-section (2) of section 1 of the (PML) Act reads "It extends to the whole of India. Thus, keeping the RPC (Ranbir Penal Code) offences away from the Act would offend the very parliamentary intent of extending this Act "to the whole of India."
5: 'Adverse Possession' Of Property vs 'Permissive Possession':Karnataka High Court Explains
Case Title: Chepudira Madaiah v. Mallengada Chengappa
Citation: 2022 LiveLaw (Kar) 5
The Karnataka High Court has said a person will not acquire adverse possession by simply remaining in permissive possession, for however long it may be. Dr. Justice HB Prabhakara Sastry said, "Article 65 of the Limitation Act presupposes that the limitation starts only if the defendants prove the factum of adverse possession affirmatively from a particular time."
6: Section 427 CrPC -Sentence Of Escaped Life Convict Will Not Run Concurrently : Karnataka High Court
Case Title: Bandenawaj v. The State Of Karnataka
Citation: 2022 LiveLaw (Kar) 6
The Karnataka High Court has said that a life convict on being sentenced for escaping from prison on grant of parole leave, cannot claim that his subsequent sentence, less severe in nature, runs concurrently with the prison term he was undergoing. The Court held that an escaped convict cannot seek the benefit of Section 427(2) CrPC, which says that the subsequent sentence of a person already undergoing imprisonment will run concurrently.
Other Significant Developments
1: Rising Covid Cases: Karnataka HC Issues Notification On Functioning Of Trial Courts In Bengaluru District
In view of large number of Covid-19 positive cases reported everyday in Bengaluru, the functioning of the all the District and Trial Courts of Bengaluru Urban and Bengaluru Rural District Courts (functioning in City Civil Court Complex and Mayo Hall Court Complex) will be restricted from January 5, till further orders.
2: Covid Third Wave: Karnataka HC Issues Revised SOP; Principal Bench At Bengaluru To Function In Virtual Mode Till Jan 14
As per a revised standard operating procedure (SOP) issued by the Karnataka High Court, all cases at the Principal Bench at Bengaluru, will be heard through Virtual Mode till January 14. While at the benches in Dharwad and Kalaburagi, all the cases shall be heard by hybrid mode. The SOP is issued in view of the rising number of cases of Omicron variant of COVID-19. It states that parties-in-person shall appear only through online mode and their physical appearance is not permitted.
Case Title: The National Federation Of The Blind, Karnataka v. State Of Karnataka
Case No: WP 52201/2019
The Karnataka High Court directed the State government to carry out a survey to ascertain the number of blind students who are studying in government and private schools and are in need of braille textbooks.
Case Title: Google India Private Limited v. Competition Commission Of India
Case No: WP 24277/2021
The Karnataka High Court was on Wednesday informed by the Competition Commission of India (CCI) that it will complete its investigation in the case related to Google Play store payments policy 2020, within 60-days. Additional Solicitor General N Venkatraman said, "Yesterday, CCI heard an application filed by DG Investigation and he has given an assurance that he will complete the investigation in 60 days."
Case Title: Hasham Investment And Trading Company Private Limited v. India Awake For Transparency Pvt Ltd
Case No: CRL.CCC 9/2021
The Karnataka High Court on Friday reserved its order in the suo-motu criminal contempt case initiated against Advocate R Subrmanian and P Sadanand, who represented India Awake For Transparency in the multiple petitions filed on the same cause of action against Wipro founder Azim Premji.
Kerala High Court
Case Title: Vinay Shankar v. Union of India & Ors.
Citation: 2022 LiveLaw (Ker) 1
The Court upheld the 10% reservation earmarked for Economically Weaker Section (EWS) for Veterinary and Dental Courses under Kerala Engineering Architecture ad Medical (KEAM).
Justice P.V. Kunhikrishnan closed the writ petition upon noticing that a Government Order dated 20.03.2020 had established the said reservation, and after the Government Pleader endorsed that it was a policy decision of the State. The Director of Medical Education also submitted an affidavit stating that as per the said Government Order, 10% of seats are set apart for candidates belonging to EWS.
Case Title: Rajeswary vs State of Kerala
Citation: 2022 LiveLaw (Ker) 2
The Court observed that a convict in a cheque bounce case can pay the fine amount directly to the complainant. It is not necessary to deposit the fine amount in court. In this case, while disposing of the Criminal Revision Petition filed by the accused, the High Court had affirmed the conviction but modified the sentence of simple imprisonment as a sentence to pay fine of Rs.7,17,000/-. The accused was granted a period of six months to remit the amount of fine in the trial court.
3. District Court Can Only Appoint Guardian For Minor's 'Property', Not 'Person': Kerala High Court
Case Title: K.S. Narayana Elayathu v. Sandhya
Citation: 2022 LiveLaw (Ker) 3
The Court ruled that while District Courts are empowered to appoint a guardian for a minor's property, only Family Court can appoint a guardian for the person of a minor.
While partly allowing an appeal, a Division Bench comprising Justice A. Mohamed Mustaque and Justice Sophy Thomas set aside the proceedings of the District Court to the extent of appointing a guardian for the person of the minor.
Case Title: Suo Motu v. Travancore Devaswom Board Citation: 2022 LiveLaw (Ker) 4
The Court ordered the Devaswom Commissioner to institute disciplinary action against employees of the Travancore Devaswom Board who failed to report for special duty at Sabarimala, Pampa and Nilakkal. While issuing the directive, a Division Bench of Justice Anil K. Narendran and Justice P.G Ajithkumar recorded that it is the surplus income from the Sabarimala Temple that aids the functioning of over a thousand other temples under the Board.
The Court also directed the Devaswom Commissioner to obtain the names and take action against the staff in the establishment wing and class-4 employees who failed to report for special duty, except on genuine medical grounds.
5. Law Student's Suicide: Kerala High Court Denies Bail To Husband, Releases His Parents
Case Title: Mohammed Suhail & Ors v. State of Kerala & Anr Citation: 2022 LiveLaw (Ker) 5
The Court refused bail to the accused husband of a 2nd year LLB student, Mofiya Parveen, who died by suicide citing domestic abuse and dowry harassment. However, his parents, who are co-accused in the case, were granted bail. During the proceedings, the de facto complainant (Mofiya's father) also brought to the fore that the accused husband was diagnosed with sexual perversion and personality disorders during a counselling session he had attended with the deceased. In her complaint, she had also mentioned her ordeals of having been forced to perform unnatural sexual acts by the accused husband.
Case Title: Vijayakumar V. & Anr. v. Kannur University & Ors.
Citation: 2022 LiveLaw (Ker) 6
The Court observed that it is prima facie of the view that the notification issued by the Registrar in charge appointing a new board of studies at the Kannur University was not in consonance with the statutory provisions. A Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly also issued notice to the Registrar and Board Members on the appeal filed against a Single Bench's order. The Single Judge had dismissed their writ petition challenging the reconstitution of the board of studies.
Case Title: Biju Kumar v. State of Kerala Citation: 2022 LiveLaw (Ker) 7
While acquitting a man accused of murder on the ground of negligent evidence collection, the Court ruled that the satisfaction of the Court cannot be substituted by expert opinion. In the criminal appeal, the preliminary question before the Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran was whether there was sufficient material before the trial court to find the accused guilty.
It was noted that the case against the accused was largely based on fingerprints and chemical evidence. However, the Court noted that there wasn't sufficient reliable evidence for the trial court to have found the accused guilty of the crime.
Case Title: V. G. Thankamani & Ors & National Highway Authority of India & Ors
Citation: 2022 LiveLaw (Ker) 8
The Court has ruled that non-compliance with principles of natural justice is a good ground to set aside an arbitral award. A Division Bench of Justice P.B. Suresh Kumar and Justice C.S. Sudha, while allowing an appeal, set aside the order of the Additional District Court and the impugned award. The Court also added that only an adjudicator not favouring one party more than another, unprejudiced, disinterested, equitable and just, can be said to be an impartial adjudicator.
Case Title: Dr. Sreeparvathy & Ors. v Commissioner of Entrance Examinations & Anr.
Citation: 2022 LiveLaw (Ker) 9
The Court dismissed a plea moved by MBBS graduates challenging a circular issued by the State government increasing reservation for the socially and economically backward classes (SEBC) from 9% to 27% in medical postgraduate courses. After having elaborately heard the matter over the course of the past couple of months, Justice N Nagaresh dismissed the plea.
Case Title: Madhu Alias Valiya Madhu v. Central Bureau of Investigation
Citation: 2022 LiveLaw (Ker) 10
The Court dismissed the bail applications moved by the prime accused in the infamous Walayar case that had built up public outrage in the State. Noting that the final report had already been filed before the trial court, Justice P. Gopinath asked the applicants to approach the trial court with their bail applications since that would be the appropriate forum to consider the same:
"Having regard to the fact that the final report has already been filed and the fact that the petitioner in one of the bail applications also faces allegations of having committed offences under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 I am of the view it is for the petitioners to approach the jurisdictional court for bail."
Other Significant Developments
1. 'Not Sure If All Ambulances Carry Genuine Patients' : Kerala High Court Calls For Monitoring System
The Court orally commented that perhaps it was time to bring about a monitoring system to regulate ambulances cutting through traffic in the State, particularly in the city of Kochi.While hearing a bail application of a man alleged to have committed an offence in an ambulance, Justice P Gopinath remarked that this was an issue of immense gravity citing the rising number of similar cases being brought to the fore in the State:
"It is a very serious issue. But at the same time, how can the police regulate this? They cannot stop and inspect all the ambulances plying in the city; this could cost a life, leading to disciplinary action against the responsible officer. Everyone including the police will make way for an ambulance upon hearing its siren. But only God knows what is being transported in it. I am not sure if all these ambulances are transporting genuine patients in the first place."
Case Title: Aishwarya Mohan v. Union of India & Ors
The Court found merits in the contentions raised by the petitioner who had sought to quash the condition mandating applicants to clear CLAT to apply to the post of Assistant Law Officer in National Thermal Power Corporation Limited (NTPC).
Finding the condition prima facie discriminatory, Justice V.G. Arun observed that there was no rationale for precluding candidates like the petitioner from the post:
3. [Actor Sexual Assault Case] Sufficient Reasons Required To Recall Witnesses : Kerala High Court
Case Title: State of Kerala v. Sunil N.S @ Pulsar Suni
Further developments ensued in the sensational actress sexual case that involves Malayalam actor Dileep, as the Court observed that the prosecution should produce adequate justification for seeking to recall the witnesses in the case. Justice Kauser Edappagath reserved orders in the Criminal Miscellaneous case filed by the State against the trial court approving to collect a confidential statement from director Balachandra Kumar, who made some explosive disclosures, on January 12th.
Case Title: Peggy Fen v. Central Board of Film Certification & Ors.
The Court suo motu impleaded the State Police Chief to file a statement to report if there was any statutory violation in exhibiting the Malayalam movie 'Churuli'. The Court passed the direction in the writ petition filed against the movie citing excessive use of abusive and obscene language. Justice P.V. Kunhikrishnan while hearing the matter also noted that prima facie, he was of the opinion that no statutory provision was violated by the publication of the film
5. Missing CPM Worker: Kerala High Court Demands Status Report On Police Investigation
Case Title: Sajitha Sajeevan v. Station House Officer & Ors.
The Court sought a statement from the respondents on the stage of investigation in the habeas corpus plea moved by a CPM worker's wife alleging that her missing husband was abducted for reasons associated with the upcoming CPM branch election. A Division Bench comprising Justice K. Vinod Chandran and Justice C. Jayachandran asked the respondents to file a copy of the investigation so far conducted in the matter by the next hearing date.
Case Title: M.T Thomas v. V.P Joy
In an affidavit filed before the Court, the Chief Secretary to the Government has submitted that its actions taken in pursuance of the Semi High-Speed Railway Line Project (Silver Line Project) were only preliminary in nature and that they were all in public interest. The statement was filed in a petition seeking to initiate contempt proceedings against K-Rail for allegedly breaching its assurance not to proceed with the Silver Line project before obtaining sanction from the Centre.
7. Advocates Welfare Fund Scam: Kerala Bar Council Assures Cooperation With CBI Probe
The Bar Council of Kerala issued a press release disclosing that it does not plan to appeal against the High Court's decision to initiate a CBI probe into the Advocates Welfare Fund scam. In fact, it was added that the Council endorses the verdict of the Court.
Bar Council Chairman Advocate Joseph John published the press release pursuant to a recent order where the High Court directed a CBI investigation into a scam involving misappropriation of over ₹7.5 crores from the Kerala Advocates Welfare Fund. The amount was allegedly swindled through fake documents from 2007 - 2015.
Also Read: Kerala High Court Allows Filing In A4 Size Papers In District Judiciary
Case Title: State of Kerala & Ors v. Kerala Packaged Drinking Water Manufacturers Association
The Court issued notice on an appeal challenging a Single Judge order that stayed the government order fixing the price of bottled water in the State at Rs. 13 citing the State's lack of jurisdiction. However, the Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly refused to stay the single bench decision.
The Single Judge had examined the Kerala Essential Articles Control Act 1986 and found that as per Section 3, the power to control production, supply, distribution of essential commodities are vested with the Centre.
The Court reiterated its stand that survivors of sexual assault have to be thoroughly protected from further harassment or ridicule as it takes a lot of courage to come forward and say they have been attacked, and invited recommendations from all lawyers on how they can be protected from further trauma on account of the investigation process. Justice Devan Ramachandran orally remarked so while considering the plea of a survivor who alleged harassment from the accused as well as certain police officers.
10. Uthra Murder: Suraj Prefers Appeal Against His Conviction, Kerala High Court Issues Notice To State
Case Title: Suraj S. Kumar v. State of Kerala
In a further development in the Uthra murder case, the Court admitted an appeal preferred by Suraj, challenging his conviction by the Kollam Additional District and Sessions Court for throwing a starving cobra on his wife while she was asleep, to induce her death by snakebite. A Division Bench comprising Justice K. Vinod Chandran and Justice C. Jayachandran also issued notice to the State in the matter.
Suraj was sentenced to double life imprisonment and a five lakh fine for murdering his wife by inducing a homicidal snakebite. He was also awarded 10 years and 7 years of imprisonment in two other cases for causing hurt by means of poison and destroying evidence. The sentencing was to run consecutively.
Madhya Pradesh High Court
Case Title - Gangaram S/o Shri Kanha Ji Versus Commissioner, Indore Division & another
Citation: 2022 LiveLaw (MP) 1
The High Court observed that it is the nature of the case and not the number of cases that should be taken into account for the purposes of initiating externment proceedings against a person intended to be externed from a particular area.
Importantly, underscoring that the purpose of initiation of externment proceedings is to restrain a person from committing another offence in the near future, the Bench of Justice Subodh Abhyankar further observed that the order of externment must be passed within the close proximity of the offences committed by the petitioner.
Case Title: SINTOO VIRGHESE v. THE STATE OF MADHYA PRADESH AND OTHERS
Staying the decision of the Child Welfare Committee (CWC), district Sagar (M.P.) to shift 44 children from a Christian Prphangae, the Madhya Pradesh High Court recently enquired from the Committee regarding the reason behind this decision.
The Bench of Justice Nandita Dubey also sought a report from the concerned CWC as to the condition of the orphanage where presently these 44 children are staying. The Court gave CWC a period of two weeks and directed thus:
"...submit a report regarding why the children are being shifted in this cold weather and at this difficult time when there is a rising threat of Covid/Omicron. They are also to submit in their report what was the condition of the orphanage where presently the children are staying and what is the condition or availability of space where they are trying to shift all these 44 children."
3. Madhya Pradesh High Court Decides To Increase In Working Hours to Deal With Pendency of Cases
The High Court has increased the working hours of the High Court by making corresponding amendments to the Madhya Pradesh High Court Rules, 2008. The initiative has been taken to handle the vast number of pending cases in the MP HC, bringing some relief to the aggrieved litigants, the lawyers, and the presiding Judges.
Earlier, the working hours of the High Court were from 10.30 am to 04.30 pm, with a recess from 01.30 pm to 02.30 pm. Post the amendments, the High Court of Madhya Pradesh will now function from 10.15 am to 04.30 pm, with the recess being from 01.30 pm to 02.15 pm. Increasing the timings by half an hour each day would aid in the disposal of pending cases.
Madras High Court
Case Title: M/s.The Kancheepuram Reading Room and Tennis Club, Represented by its Secretary v. The Director-General of Police & Ors Citation: 2022 LiveLaw (Mad) 1
Madras High Court has recently rejected the relief sought by a Club to forbear the insisting upon obtaining FL2 License for allowing its members to consume liquor (bought from government-approved shops) inside the Club premises.
A single-judge bench of Justice S.M Subramaniam held that Clubs registered under Tamil Nadu Societies Registration Act with its bye-laws also registered under the provisions of the Act must strictly follow the objects and purpose already set out in the bye laws. When alcohol consumption is beyond the scope of the bye-laws of the petitioner club, it must be r/w Rules relating to the grant of licenses in Chapter IV of The Tamil Nadu Liquor (License and Permit) Rules, 1981, which makes it abundantly clear that the Club cannot allow its members to consume alcohol in its premises without FL.2 License and an amendment to the existing bye-laws.
F.L.2 license is stipulated for 'license for possession of liquor by a non-proprietary Club for supply to members' in the Rules. Even for consumption of liquor in a Club or Association, a license must be obtained for the possession of liquor and for supply to its members inside the premises, the court added.
Case Title: The University of Madras, Rep. By its Registrar v. Dr. S. Bhaskaran & Ors. Citation: 2022 LiveLaw (Mad) 2
The Madras High Court recently expressed its dismay over the rapidly declining reputation of the Madras University, and observed that disciplinary proceedings must be instituted against errant officials for not maintaining absolute integrity and devotion to duty.
The remarks were made by a division bench of Justice S. Vaidyanathan and Justice A.A. Nakkiran after it noted irregularity in the process for appointment of Assistant Librarians in the University.
The Court observed that the University has flouted the regulations by regarding the disputed post as promotional. The bench observed that UGC Regulations and the Standing Regulations of the University of Madras does not treat it as a promotional post and it could have been filled only through Direct recruitment as per the then existing service conditions.
It noted that technical wing and library wing are completely different as per the Rules, and Assistant Librarian is the Feeder Category that can be filled only through direct recruitment.
Case Title: Payel Biswas v. The Commissioner of Police, Trichy City & Ors. Citation: 2022 LiveLaw (Mad) 3
While considering a writ petition filed for obtaining a 'No Objection Certificate' from the Police for running a cross-massage centre, the Madras High Cour has also analysed a recent single judge bench order for the installation of CCTV cameras inside Spa and Massage Centres.
The court observed in clear terms that mere apprehension about a breach of morality cannot be a valid ground to curb the right to relax, which is a part and parcel of the right to privacy. Referring to the landmark decision in Navtej Singh Johar & Ors. vs. Union of India & Ors, (2018) 10 SCC 1, the single judge bench pointed out that 'constitutional morality shall trump public morality'.
Justice G.R Swaminathan primarily relied on Puttaswamy judgment (K.S Puttaswamy v. Union of India, (2017) 10 SCC 1) that elaborates about the different facets of right to privacy guaranteed under Article 21. These forms of the right to privacy are i) a right to bodily autonomy, ii) a right to informational privacy and iii) a right to a privacy of choice.
"The installation of CCTV equipment inside premises such as a spa would unquestionably infract upon a person's bodily autonomy, These are inviolable spaces where the prying eye of the state simply cannot be allowed to enter" the court held.
The court was referring to the order passed by Justice S.M Subramaniam in C P Girija v. Superintendent of Police & Ors. dated 20th December, 2021. In the said order, the bench directed the installation of functional CCTV cameras in all spas, massage centres, therapy centres etc. in the State of Tamil Nadu. It was also directed by the court that secluded or closed rooms for conducting business activities must be avoided in spas and massage centers.
Case Title: All India Anna Dravida Munnetra Kazhagam & Another. v. J.Deepak & Ors. & Connected Matters Citation: 2022 LiveLaw (Mad) 4
In third party appeals against the single judge order quashing land acquisition proceedings of 'Veda Nilayam', Madras High Court held that no 'public purpose' is served by converting the erstwhile residence of Late J. Jayalalitaa into a second memorial.
While dismissing the appeals preferred by All India Anna Dravida Munnetra Kazhakam (AIADMK) and former AIADMK Minister C.Ve Shanmugam, Madras High Court has also held that AIADMK wrongfully equated itself with the appropriate government in acquisition proceedings.
A Division Bench of Justice Paresh Upadhyay and Sathi Kumar Sukumara Kurup held that the state's land acquisition proceedings were riddled with procedural irregularities, concurring with the findings of the single judge bench setting aside the acquisition.
The court held that the appellants have failed in raising any substantial challenge against the inferences made by the single judge bench about procedural irregularities. Though the acquisition was of a private residential property, the state didn't even consider the status of writ petitioners as owners of the property. However, since the acquisition and not the ownership is in question before the current bench, the court answered that the procedural irregularities explained by the single judge bench with regards to the 2013 Act and Rules will hold true.
Case Title: S.Mukachand Bothra (Deceased) & Anr v. The Central Government & Ors.
Citation: 2022 LiveLaw (Mad) 5
Coming down heavily on the misuse of State Emblems, Seals and Symbols, Madras High Court has issued a set of directions to ensure the compliance of the State Emblem of India (Prohibition of Improper Use) Act, 2005 and the Rules framed thereunder.
A single-judge bench of Justice S.M. Subramaniam opined that not even a single case has been registered by Tamil Nadu Police against unauthorised use of such Emblems, Flags, names of departments and other Symbols on vehicles or elsewhere. The court made the above inference after referring to the status report filed by DGP who was suo motu impleaded. According to the status report, apart from registering cases under Motor Vehicles Act and for impersonation of public servants under Sections 170 and 171 of IPC, the Police 'miserably failed to register any case under the Act 50 of 2005', noted the court.
Case Title: Fr P. George Ponniah v. The Inspector of Police
Citation: 2022 LiveLaw (Mad) 6
While refusing to quash an FIR registered against the Catholican Diocese Priest P. George Ponnaih for an inflammatory speech against the Hindus, the Madras High Court made a few observations about religious conversions.
Justice GR Swaminathan, who considered the case, observed that it is important to maintain the status quo regarding religious demography. "If there is a serious subversion of the status quo, calamitous consequences may follow", Justice Swaminathan stated. While saying that an individual's choice to change religion is protected by the Constitution and must be respected, Justice Swaminathan said that religious conversions cannot be a "group agenda".
Case Title: Trichy Cold Storage (P) Ltd., Rep.by its Manager v. The Superintendent of Police, Trichy & Anr. Citation:2022 LiveLaw (Mad) 7
In a peculiar case, the Madras High Court has ordered payment of Rs 1.25 lakh to a cold storage facility keeping seized dates, after a Magistrate Court ordered the Police to store the perishable contraband until disposal of the case.
The storage bill had mounted to Rs.3,54,000/-. The payment is directed from the Victim Compensation Fund by the jurisdictional magistrate court.
Considering the factual circumstances surrounding the issue, the High Court observed that the jurisdictional magistrate was not justified in directing the police to keep the perishables in safe custody via its October 2018 Order.
Case Title: Swadeshi Panchalai Thozilalar v. The Secretary, Industries and Commerce
Citation: 2022 LiveLaw (Mad) 8
The Madras High Court has set aside notices for the closure of two Mills in Puducherry, whose history dates back to the French Colonial period, on the ground that provisions of the Industrial Disputes Act, 1947 were not complied with in its true spirit.
Justice S. Vaidyanathan noted that the Mills were closed without issuing any notice of enquiry under Section 25-O of the 1947 Act for making objection before the Authority concerned and without taking up the matter for hearing.
If the Authority is allowed to operate the deeming provision without conducting any enquiry, the very purpose of the provisions of the Act itself will be defeated, as there is not even an attempt to conduct an enquiry, which is mandatory on the part of the concerned Authority under Section 25(O)(2) of the I.D.Act, 1947, observed the court.
9. 'God Cannot Be Summoned': Madras High Court Overturns Order To Produce Idol
Case Title: S.P.Eswaramurthy v. The Government of Tamil Nadu Citation: 2022 LiveLaw (Mad) 9
Overturning a lower court's decision, the Madras High Court has observed that an idol is believed to be a God by the devotees cannot be summoned by the Court. While hearing a challenge to the order of the lower Court in an idol theft case, where the idol was called to be produced in the Court to enquire its condition, Justice R. Suresh Kumar observed that,
"The God cannot be summoned by the Court to be produced for a mere inspection or verification purposes, as if that it is a material object of a criminal case."
To serve the purpose of the impugned compliance order without disturbing or wounding the feelings of a large number of devotees, the Court called for the appointment of an Advocate Commissioner, who, along with others concerned, will prepare a detailed report on the condition of the idol.
Case Title: M/s MRF Limited v. Ministry of Corporate Affairs and Ors. Citation: 2022 LiveLaw (Mad) 10
The Madras High Court has recently held that under the writ jurisdiction there should be no interference with a preliminary enquiry ordered by the Competition Commission of India under Section 26(1) of the Competition Act.
The Court clarified that an order for investigation passed under S.26(1) is a preliminary order and does not attract any civil consequences and does not determine the issue raised against the parties finally and any interference by the court at that stage would only allow the parties to escape the investigation itself that would defeat the object sought to be achieved by the Act and thus, the court held that the learned single judge was right in not interfering with the order of CCI and in dismissing the petition.
A bench of Justice T. Raja and Justice T.V. Thamilselvi observed that the failure to comply with any requirement of CCI rules and regulations shall not invalidate any proceedings unless the CCI is of the view that such failure has resulted in miscarriage of justice.
Other Significant Developments
Case Title: SpiceJet Limited v. Credit Suisse AG.
After hearing the caveator Credit Suisse AG at length, Madras High Court has decided to hear the appeal against the admission of SpiceJet's winding up further on January 10, 2022. A Division Bench of Justice Paresh Upadhyay and Sathi Kumar Sukumara Kurup heard the counsel appearing for the Switzerland based Corporation, Advocate Rahul Balaji.
Credit Suisse AG contended that the admission of winding up and appointment of provisional liquidator by the single judge bench does not suffer from any illegality, procedural or otherwise The counsel appearing for the appellant, Senior Advocate Ramakrishnan Viraraghavan had earlier contended that a party who has violated a public safety statute cannot demand enforcement of a claim rendered illegal.
On the merits, the counsel argued that the submission of SpiceJet that they were unaware of the alleged non-approval from DGCA is inherently false. The argument that they came to know about the non-existence of valid license from DGCA only in 2020 via an RTI application is negated by the finding of UK Arbitral Tribunal in favour of SR Technics back in 2017.
Hearing From Day 1- 'Claim Not Legally Enforceable, Admission Of Winding Up Laden With Procedural Infirmities': SpiceJet Files Appeal Before Madras High Court
Case Title: Dr Prateep V. Philip, I.P.S. (Retd.) v. Deputy Superintendent of Police, CBCID, Chennai
IPS officer Prateep V. Philip, who retired as Director General of Police- Training, has been allowed the permanent custody of the bloodstained cap and name badge worn by him on the day of former Prime Minister Rajiv Gandhi's assassination.
An Additional Sessions Judge in Chennai granted permanent custody to the officer who was on duty as Additional Superintendent of Police, Kancheepuram in May, 1991 when the former Prime Minister was assassinated at Sriperumpadur.
Case Title: S. Ramalingam v. Union of India & Ors.
On Senior Advocate P. Wilson's request to list the matter urgently, Madras High Court has posted the plea challenging the vires of the recently enacted Dam Safety Act, 2021 on January 10.
The public interest litigation preferred by DMK MP from Mayiladuthurai, S. Ramalingam, was mentioned before the bench on Tuesday. Thereafter, the first bench of Acting Chief Justice Munishwar Nath Bhandari and Justice P.D Audikesavalu has decided to hear the matter after the senior counsel submitted that the Union Government was encroaching into state's domain by enacting the legislation.
4. Madras High Court Tells TN Election Commission To Videograph Every Stage Of Urban Local Body Polls
Case Title: AIADMK v. Tamil Nadu State Election Commission & Anr.
The Madras High Court has asked the Tamil Nadu State Election Commission (TNSEC) to videograph the entire election process during the upcoming urban local body polls, starting from filing of nominations to counting of votes.
The bench of Acting Chief Justice Munishwar Nath Bhandari and Justice P D Audikesavalu disposed of the writ petition filed by All India Anna Dravida Munnetra Kazhakam (AIADMK) seeking directions to TNSEC for free and fair conduct of urban local body elections.
TNSEC had submitted that it has already issued guidelines for the purpose- the entire election process will be video graphed as per the Manual on Model Code of Conduct (2019) and Standard Operating Procedure(2016), and Handbook of the Returning Officer (2019) by the Election Commission of India (ECI).
Therefore, the court deemed it fit to dispose of the writ petition noting that no further orders are required. However, it clarified that videography would involve all stages from the filing of nominations by candidates, polling of votes, keeping boxes in safe custody inside storerooms, counting of votes and declaration of results.
5. Surge In Omicron Cases: Madras High Court Reverts To Virtual Hearing Of Cases
Due to the surge in Omicron variant of Covid-19 cases, Madras High Court has issued a notification keeping in abeyance the previous notification for resumption of physical hearings completely. As per the notification dated 2nd January, 2022, Acting Chief Justice Munishwar Nath Bhandari has issued directions to follow virtual hearing, excluding both physical as well as hybrid modes of functioning till further orders. The decision to follow only virtual hearing from 3rd January 2022, will be applicable both to the Principal Seat at Madras and the Madurai Bench.
Punjab & Haryana High Court
Case Title - Lovepreet Singh v. Haryana Public Service Commission and another
Case Citation: 2022 LiveLaw (P&H) 1
The High Court has observed that in a Multiple-Choice Question (MCQ) based examinations, a question which has no single, unique or 'most appropriate answer' (i.e., suspect question) becomes incapable of being asked.
The Bench of Chief Justice Ravi Shanker Jha and Justice Arun Palli further held that a suspect question in an MCQ based examination needs to be deleted so that no student gets advantage, or is denied advantage, because of evaluation of such questions.
Case Title - Bikram Singh Majithia vs. State of Punjab
The High Court issued notice to the Punjab Government on Akali Dal leader Bikram Singh Majithia's anticipatory bail plea filed in connection with a Drugs case registered against him, however, his arrest has not been stayed.
The Bench of Justice Lisa Gill has ordered Punjab Government to file its specific response before the adjourned date i.e., January 10, 2022, with an advance copy to the counsel for the Majithia.
Rajasthan High Court
Case Title: Laxmilal Salvi v. Registrar General, Rajasthan High Court
Case Citation: 2022 LiveLaw (Raj) 1
The division bench of Rajasthan High Court, Jodhpur dismissed a plea challenging the conditions on candidates to supply certified copies of those 10 judgments of which the candidate has furnished particulars while submitting online application form.
As per the petitioner, this requirement is not part of the recruitment rules, and therefore, cannot be inserted through the recruitment notification.
The court observed, "Clause (f) of paragraph 6 of the main notification thus traces its root to Sub-rule (1) of Rule 36 of the said rules and is thus in consonance with the statutory recruitment rules. Rule 36(1) is not under challenge. The condition, therefore, cannot be set aside."
Case Title: Seemajan Kalyan Samiti, Rajasthan v. Union of India
Case Citation: 2022 LiveLaw (Raj) 2
A division Bench of Rajasthan High Court, Jodhpur dismissed a public interest litigation seeking direction to the Union government that ten kilometres of area from international border line (India and Pakistan) should be declared as no mining/commercial/industrial zone. The court observed that it is a sensitive policy matter and not a subject matter of decision by the High Court in a writ petition.
The bench comprising of Akil Kureshi, CJ and Rameshwar Vyas J. observed,
"In our opinion, these are sensitive policy matters. What should be the buffer zone for permitting mining operations and other commercial operations near the international border, cannot be subject matter of decision by the High Court in a writ petition.
In addition to the above, the plea also seek permission for mining lease already granted should be cancelled. Further, it was also prayed that the decision to shut down Border Intelligence Chowkis be reversed.
Case Title: School Development Management Committee, Shri Hari Singh Senior Secondary School and Ors v. State of Rajasthan and Anr.
Case Citation: 2022 LiveLaw (Raj) 3
While allowing the plea filed by the petitioner, the single bench of Rajasthan High Court, Jodhpur held that the impugned decision of the State seeking to convert the school in question from a Hindi medium to an English Medium school with immediate effect, is fortiori, violative of Article 19(1)(a) and 14 of the Constitution.
Justice Dinesh Mehta held that English, as a medium of instruction, cannot be thrusted upon a child even by a legislation enacted by the State Government, much less by a policy decision.
The present petition, filed by School Development Management Committee of Shri Hari Singh Senior Secondary School, Pilwa Panchayat Samiti Dechu, Jodhpur, challenging the decisions of Sept 2021 taken by the state government which converted petitioners' Hindi Medium school to an English Medium School - Mahatma Gandhi Government School (English Medium).
Case Title: D.K. Garg and Anr. v. State of Rajasthan and Ors
Case Citation: 2022 LiveLaw (Raj) 4
A division Bench of Rajasthan High Court, Jodhpur the order of the Power Sector Companies by which the entire Cadre of Feeder Manager in 5 Power Sector Companies of Rajasthan was merged with the Cadre of Assistant Engineer (O&M) and they were adjusted in the seniority list of 2010-11 & 2011-12.
The bench comprising Justices Dinesh Mehta and Rameshwar Vyas observed that it is settled position of law that equating the posts or merging the posts or grant of seniority lies within the exclusive domain of the employer or the State Government. The scope of interference or judicial review is very limited. Court added that interference of court in policy matters is permissible only when there is a lacuna or procedural lapse in the decision making process.
5. CISF Examination, 2019: Rajasthan HC Directs Centre To Keep A Post Vacant for Candidate Suffering From Cubitus Valgu and having Tattoo Mark
Case Title: Ramchandra Nath Siddh Son of Poos Nath Sidh v. The Union of India and Ors.
Case Citation: 2022 LiveLaw (Raj) 5
A single bench of Rajasthan High Court, Jodhpur directed Union government to keep a post vacant for candidate suffering from Cubitus Valgu and having Tattoo Mark in pursuance of CISF Examination, 2019, till further orders.
After hearing the petitioner on interim relief, Justice Mahendar Kumar Goyal ruled, "Taking into consideration the submissions advanced by the learned counsel for the petitioner and the material on record, this Court deems it just and proper to direct the respondents to keep a post vacant in pursuance of examination, 2019, till further orders."
A division bench of Rajasthan High Court, Jodhpur dismissed a plea challenging the RPSC procedure for the selection of Assistant Professors in government colleges for a total number of 918 posts. The question arose before the bench that whether or not the qualifications and the method of recruitment, as provided in the advertisement and which are followed by the Rajasthan Public Service Commission (RPSC), are in consonance with the UGC guidelines.
The bench of Chief Justice Akil Qureshi and Justice Sudesh Bansal noted, "We may recall, more than 1,50,000 candidates have applied for 918 posts. As noted, UGC regulations have not provided any cut-off for shortlisting the candidates on the basis of scores to be allotted in terms of the table. Even if we permit the degree of latitude to the recruiting agency and expect calling for oral interview candidates 5 times the number of notified vacancies, this would require conducting the oral interview close to 5,000 candidates".
Other Significant Developments
Case Title: Hemant Bohra v. Union of India; Civil Writ Petition No. 17
The Rajasthan High Court has issued notice on a plea challenging the constitutionality of Sections 95, 97 and 99 of the Insolvency Bankruptcy Code, 2016.
The division bench of Chief Justice Akil Kureshi and Justice Rameshwar Vyas observed, "Since the provisions of the law framed by the Parliament are under challenge, we therefore issue notice to the learned Additional Solicitor General". The petition is filed by one Hemant Bohra, who is a guarantor and against whom the proceedings under the Insolvency and Bankruptcy Code, 2016 have been instituted.
2. COVID Omicron: Rajasthan High Court To Have Only Virtual Hearings From January 5 to January 14
Considering the instant surge in Covid-19 cases and the spread of its highly infectious Omicron variant during the last couple of weeks and the preventive measures adopted by the State Government, the Rajasthan High Court has decided to have only virtual hearings from January 5, to 14, 2022.
This decision has been taken for the safety and security of all concerned, a notification issued in this regard states.
During this period, as far as possible, only 75% of the court staff will be called to attend the office on a rotational basis. The remaining staff shall work from home and shall not leave the headquarters without prior permission of the concerned Authority.
Telangana High Court
Case Title: Kodam Danalakshmi v. State of Telangana
Citation: 2022 LiveLaw (Tel)1
In a case pertaining to dishonor of cheque, the Telangana High Court recently ruled that a joint account holder who is not a signatory to the disputed cheque shall not be prosecuted under Section 138 of Negotiable Instrument Act, 1981.
Relying on the Supreme Court ruling in Alka Khandu Avhad vs. Amar Syamprasad Mishra, Justice Shameem Akhtar held that a mere joint account holder but not a signatory cannot be prosecuted under Section 138 of NI Act, unless and until his/ her signatures are on the cheque.
Case Title: xxxx v. State of Telangana
Citation: 2022 LiveLaw (Tel) 2
The High Court in a recent judgment laid down that the life of the foetus or to be born child cannot be placed at higher pedestal than that of the life of the woman.
The court observed that Constitutional Courts have the power under writ jurisdiction to direct termination of pregnancy, even when the length of pregnancy is beyond the statutory limit of twenty-four weeks as per the Medical Termination of Pregnancy (Amendment) Act, 2021 (The Act).
3. Violation of Covid-19 Norms: Telangana High Court Releases BJP State President Bandi Sanjay
Case Title: Bandi Sanjay Kumar v. State of Telangana
The High Court released BJP State President Bandi Sanjay Kumar who was sent to a 14-day judicial remand for allegedly violating Covid-19 norms and thereby assaulting a public servant, with a condition to furnish a personal bond.
While staying the remand order, Justice Ujjal Bhuyan also issued notice to the State government in the matter.
Sanjay was taken into custody on Sunday for planning to undertake a night vigil in solidarity with teachers and other government employees against a state government order introducing a zonal system in the allocation of jobs and transfers.
