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High Courts Weekly Round Up

Arabhi Anandan
3 Feb 2020 5:56 AM GMT
High Courts Weekly Round Up
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  • Bombay High Court

Bombay HC Restores 42-Year-Old Suit, Allows 22-Year-Old Petition And Directs Trial Judge To Expedite Hearing

The Single Bench of Justice AS Gadkari allowed a writ petition filed by one Kamala Bharwani (since deceased) in 1998 wherein orders of the trial court dismissing a suit filed by her in 1978 were challenged. The trial court had dismissed the said suit for want of prosecution and further rejected the petitioner's application for restoration of the suit. The court concluded that the trial judge had committed an error in not allowing the said application for restoration of a suit filed by the petitioner's advocate for the restoration of the Suit and quashed the impugned orders dated June 26, 1998.

Bombay HC Allows Egyptian Man's Habeas Corpus Plea Against In-Laws

Division Bench of Justices SS Shinde and NB Suryavanshi allowed a criminal writ petition filed by Khaled Kassem, an Egyptian citizen who sought the issuance of a writ of habeas corpus against his sister-in-law and mother-in-law for alleged illegally confining his 11-month old son Kian. Court also referred to the Supreme Court's decision in Yashita Sahu v. State of Rajasthan and observed-

"...just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents."

Thus, the Court allowed the said petition and granted Kian's custody to the petitioner.

  • Calcutta High Court

Indulgence In 'Sting Operation' Purportedly In Public Interest Does Not Extinguish Criminal Liability

The bench comprising Justices Suvra Ghosh and Joymalya Bagchi held that indulgence in 'sting operation' purportedly in public interest does not extinguish the criminal liability of an individual. The court rejected the petitioner's explanation that they were only conducting bona fide sting operations to unravel corruption. Reliance was placed on Rajat Prasad v. CBI, (2014) 6 SCC 495.

  • Chattisgarh High Court

Chhattisgarh HC Directs State To Reconsider Its Appointment Of Deputy Advocate General

The Division Bench comprising of Justices PR Ramachandra Menon and Parth Prateem Sahu directed the State Government to reconsider its appointment of Rajneesh Singh Baghel as Deputy Advocate General, who is accused in a criminal case. The issue raised was whether an accused in a criminal case pending trial and being prosecuted by the State can be identified and appointed by the State as a Deputy Advocate General for conducting the cases of the State. The bench observed that process and procedure cannot be justified by the State simply saying that 'a person is innocent until found guilty' and that registration of a criminal case is not a bar for a person to practice as an Advocate under Section 24A of the Advocates Act.

  • Delhi High Court

Live Ammunition In Baggage: Delhi HC Quashes FIR Against Lady Traveller

The Single Bench of Justice Anu Malhotra held that if there is nothing in the FIR which indicates a conscious and knowledgeable possession of a firearm, no case can proceed under section 25 of the Arms Act. While quashing the FIR the court noted that for possession of a firearm under the Arms Act, there must be an element of conscious possession in the person charged with such an offense, and when there's no actual physical possession, she has power or control over the weapon.

Delhi HC Imposes Cost For Seeking Review By Blaming The Senior Counsel

The Single Bench of Justice C. Hari Shankar held that a review petition can be allowed only on the grounds stipulated in Order XLVII, read with Section 114 of CPC and not on grounds which the petitioner chose not to press during arguments. The court also imposed costs of Rs. 25,000 on the petitioner. The court said the expression "any other sufficient reasons" in Order XLVII read with Section 114 of CPC has to be interpreted ejusdem generis to the expressions that precede it. Reliance was placed on Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170.

  • Gujarat High Court

Gujarat HC Quashes Notifications For Levying IGST On Ocean Freight Services

Division Bench comprising Justices J B Pardiwala and A C Rao has held that imposition of Integrated Goods and Services Tax (IGST) on ocean freight for services provided by a person in a non-taxable territory was impermissible and quashed two IGST notifications (No.8/2017 and No.10/2017) as ultra vires. The ruling was delivered in a batch of petitions filed by importers who are from various countries on FOB(Free On Board) and CIF (sum of Cost, Insurance and Freight) basis.

'Two-Finger Test' Unconstitutional As Violative Of Woman's Right To Privacy & Dignity

Division Bench comprising Justices JB Pardiwala and Bhargav D Karia held that the "archaic and outdated" practice of a two-finger test, conducted to determine the virginity/consent of a rape victim, is unconstitutional. The court observed that the two-finger test is violative of the right of the victim to privacy, physical and mental integrity and dignity. As per the court this test is in direct conflict with the proviso to Section 146 of the Indian Evidence Act, which stipulates that "in prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character."

  • Karnataka High Court

Karnataka HC Grants Bail To Bangladeshi 'Illegal Migrant' Woman Taking Note Of CAA Provisions

The Single Bench Justice John Michael Cunha granted bail to a Bangladeshi Christian 'illegal migrant' taking note of the provisions of the Citizenship Amendment Act 2019. The petitioner is Bangladeshi national and a Christian who is alleged as an illegal migrant in India who later obtained Indian documents and on the strength of these documents, she obtained an Indian Passport.

Karnataka HC Upholds Conferment Of Senior Designation On 18 Advocates

A Division Bench of Chief Justice Abhay S Okha and Justice Mohammed Nawaz disposed of a batch of PILs to uphold the notification issued by it on November 16, 2018, conferring senior designation on eighteen advocates. The court examined the vires of the High Court of Karnataka (Designation of Senior Advocates), Rules, 2018 vis-à-vis the guidelines issued by the Supreme Court for conferring senior designation in Indira Jaising v. Supreme Court of India, (2017) 9 SCC 766.

  • Kerala High Court

Kerala HC Dismisses PIL Against Administering 'Holy Sacrament' In Churches

Division Bench comprising Chief Justice S.Manikumar and Justice Shaji.P.Chaly dismissed a Public Interest Litigation against the religious practice of administering holy sacrament in Churches. The PIL mainly contended that administering holy sacrament commemorating the last supper of Jesus Christ by distributing bread and wine in Christian churches, is an unhealthy practice and the same poses serious health hazards to the general public, especially the communicants.

The court observed that the Food Safety Authority is not vested with any powers to interfere with the distribution or administering of the holy sacrament in the churches and also that such practice is well protected under Article 21 of the Constitution.

Children With Rare Diseases: Kerala HC Makes Appeal To Advocates For Contributing To Corpus Fund; Passes Directions To Govts

A Division Bench comprising Chief Justice S.Manikumar and Justice Shaji.P.Chaly directed the Central Government to deposit an amount of Rs 1.5 crores within 15 days in the State-level corpus fund which is maintained for the treatment of children suffering from rare genetic diseases. The Court also made an appeal to the legal fraternity to make contributions to help the treatment of children with rare diseases.

Cochin International Airport Ltd Not A State Instrumentality Under Art 12 Of Constitution

Single Bench of Justice P.V. Asha held that Cochin International Airport Ltd (CIAL) cannot be said to be an instrumentality of State within the meaning of Article 12 of the Constitution of India. The Court added that the employment of the persons by CIAL or the termination of their services does not involve any public element. The court relied on the landmark decision of the apex court in Ajay Hasia v. Khalid Mujib Sehravardi where the constitutional approved the six tests laid down in the Ramana Dayaram Shetty v. International Airport Authority of India to determine whether an institution is a State under Article 12 of the Constitution of India.

Kerala HC Strikes Down Rule Mandating E-Payment Of Wages; Upholds Other Rules On Keeping E-Records

A Division Bench comprising Justices K Vino Chandran and V G Arun struck down Rule 21A(2) of the Kerala Minimum Wages Rules which mandated the payment of wages electronically through bank accounts. However, the Court upheld the other amendments brought through the Kerala Minimum Wages (Amendment) Rules 2015 regarding the maintenance of electronic records relating to the wage information of employees and uploading of the same through the 'Wage Payment System" developed by the department.

Ensure Children Do Not Carry Heavy School Bags: Kerala HC

The bench of Chief Justice S.Manikumar and Justice Shaji P Chaly directed the Central and State Governments, the educational authorities including Central Board of Secondary Education, to ensure that the orders they have passed to reduce the weight of school bags are implemented in all the schools, in its letter and spirit. The court also ordered the authorities to carry out periodic inspections in the school, with or without notice so as to ensure that the orders are implemented by the respective authorities.

Results Of Even Voluntary Narco-Analysis & Brain Mapping Tests Admissible Only For Purposes Of Sec 27 Evidence Act

The Single Bench of Justice Alexander Thomas ruled that the results of narco-analysis and brain mapping process done on the accused in the sensational Sister Abhaya murder case cannot be used in evidence. Following the principle laid down in the landmark decision in Selvi & others v State of Karnataka (2010) 7 SCC 263, the Court held that the results of such scientific tests, even if carried out with the consent of the accused, can be used only for the purposes of proving discovery of fact in accordance with Section 27 of the Indian Evidence Act.

  • Madras High Court

Retired Employees Can Form Unions Under Trade Union Act 1926

The Single Bench of Justice S.Vaidyanathan held that even retired employees of an institution have the right to form an association/ trade union under the Trade Unions Act 1926. The court set aside the order of the Deputy Commissioner of Labour who had refused to allow retired employees of the Karur Vysya Bank to form an association to espouse their grievances, relating to pension and other benefits. However, the court clarified that the retired employees would not be permitted to "join hands" with the Association of current employees. It held that the nature of grievances faced by either of the employees was on a different path and both could not be mingled together for espousing the same to the industry with which they are actually connected.

Madras HC Directs Police To Set Up Special Cells To Check Social Media Abuse

The Single Bench of Justice M Dhandapani directed the Director-General of Police (DGP) to constitute dedicated cells in every police station in the State to track unscrupulous offenders who post derogatory content on social media, not only against constitutional and government functionaries but also against the common man.

  • Punjab & Haryana High Court

Maintenance Tribunal is not an Eviction Tribunal: Punjab & Haryana HC Strikes Down Punjab Action Plan Clauses

The Single Bench of Justice Rajiv Narain Raina struck down Clauses 1 to 3 of The Punjab Action Plan, 2014, which provided summary eviction Procedure for eviction from property/residential building of Senior Citizens/ parents, holding that the same is ultra vires the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and The Punjab Maintenance and Welfare of Parents and Senior Citizens Rules, 2012.

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