LEXKHOJ FLASHBACK 2016 (JULY-AUGUST): COMPILATION OF IMPORTANT JUDGMENTS

lexkhoj-flashbackAs 2016 is going to end soon and we are about to see the dawn of 2017, it is apt time to re look at what Supreme Court and High Courts said this year. What new interpretation of law did the Apex Court offer and what Law has been struck down? We at LEXKHOJ, have compiled important Judgments (Monthly Basis) delivered by the Supreme Court and High Courts this year. Judgments pronounced in the month of July & August  2016 can be read here…

July 2016

Sonia Gandhi remains citizen of India – Allahabad High Court

The Allahabad High Court has dismissed an Election petition filed by Ramesh Singh challenging the election of Sonia Gandhi to Lok Sabha. Justice Tarun Agarwala held that grant of citizenship to Sonia Gandhi cannot be challenged at this belated stage.

Rape accused married victim – Gauhati High Court quashed Criminal Proceedings

In 2011, the mother of the ‘victim’ (aged 16 at that time) had filed complaint against the ‘accused’ alleging that he entered into her house during her absence and had sexual intercourse with her minor daughter against her will. Before the Police filed Charge sheet in 2012, the ‘accused’ married the ‘victim’. The ‘accused’ moved High Court praying for quashing of Charge sheet against him. Referring Supreme Court in Madhavrao Jiwaji Rao Scindia and other v Sambhajirao Chandrojirao Angre (AIR 1988 SC 709) that a proceeding may be quashed, if the chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, Justice N. Chaudhury observed that chances of conviction in the case is bleak in view of the compromise between the parties and marriage and hence no useful purpose is likely to be served by allowing a criminal prosecution to continue.

There is no legal bar for Banks to publish the Photographs of wilful defaulters : Madhya Pradesh HC

 The High Court of Madhya Pradesh in M/S Prakash Granite Industries vs. The Punjab National Bank, has reiterated that, it is within the propriety of the Bank to publish a photograph of defaulter in newspaper in the event of failure on the part of such borrowers. Justice Sanjay Yadav dismissed a Writ petition holding that it is within the powers of the Bank to take such action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The Court followed its decision in Ku. Archana Chauhan vs. State Bank of India (AIR 2007 MP 45).

Reserved category candidate is entitled to be considered for compassionate appointment against a General category post: MP HC

 The High Court of Madhya Pradesh in a Writ Petition has held that a reserve category candidate is entitled to be considered for compassionate appointment against a General category post. Justice Sujoy Paul observed that appointment/candidature of reserved category candidate cannot be rejected solely on the ground of non-availability of reserve category post as per reservation roster. Deepa Mehroliya’s claim for compassionate appointment was denied on the ground that as per roster, no post in ST category is lying vacant. Both approached the High Court challenging this stand.

However the Court has clarified a general category candidate does not have any such right of consideration against a reserve category post.

Minimum qualification marks for being a Judge: Supreme Court

Volunteers for Social Justice, had filed a Public Interest Litigation before the Punjab and Haryana High Court for quashing the action of the High Court and the State Public Service Commission in fixing 45% as the minimum qualifying marks for Scheduled Caste candidates for recruitment to Haryana Civil Services (Judicial Branch).

The High Court dismissed the PIL for want of NGO’s locus standi, and had also observed: “In most of the recruitment process, there has been a fair representation from amongst different reserved categories and there have been occasions when open category posts also remained unfilled for want of suitable candidates. Needless to say that in the matter of appointment to Judicial Services, efficiency and quality are non-negotiable.”

NGO’s Appeal to Apex Court was dismissed by a Three judge bench comprising Chief Justice T S Thakur and Justices A M Khanwilkar and D Y Chandrachud, stating “For selecting a judge, there has to be a minimum qualification. There has to be a benchmark… just because one is a Scheduled Caste, the same cannot be done away with”

Permanent blacklisting of a company is impermissible in law: SC

A Bench comprising of Justices Madan B. Lokur and R.K. Agrawal in B.C. Biyani Projects pvt. ltd. vs. State of Madhya Pradesh and Others has held that order for blacklisting a company permanently is impermissible in law. SC was considering plea of a company which was blacklisted for the award of contracts by the state of Madhya Pradesh since it is stated that there was unreasonable delay in the completion of six contracts awarded to the appellant. The order of blacklisting was for an indefinite period.

The Court however added that, in the event any further contracts are awarded to the appellant, they will ensure that there will not be any unreasonable delay on the part of the appellant in completing the work that is awarded.

August 2016

A lawyer outside state cannot appear in Court without a Local lawyer’s appointment, SC upholds Allahabad HC Rule

 Dismissing an appeal against Allahabad High Court Judgment preferred by a lawyer, Jamshed Ansari, the Apex Court Bench comprising of Justices AK Sikri and N V Ramana held that Rules 3 and 3A of the Allahabad High Court Rules, 1952 and perfectly valid, legal and do not violate the right of the appellant under Article 19(1) (g) of the Constitution of India.

As per the Rules, an Advocate who is not on the Roll of Advocate or the Bar Council of the State is not allowed to appear, act or plead in the said Court unless he files an appointment along with the advocate who is on the Roll of such State Bar Council and is ordinarily practicing in that Court.

Observing that the Rules pass the test of Reasonableness, the Court said: “Such Rules are also aimed at helping in regulating the functioning of the Court. It is important for the orderly functioning of the Allahabad High Court that Rolls are maintained in Order to effect service of notices and copies of pleadings and ensure regular procedural 13 compliances. The same will not be possible if proper records of Advocates practicing in the High Court are not maintained in the High Court.”

“Illness of counsel/accused in Custody” not valid grounds to recall witnesses under Section 311 CrPC: SC

The Apex Court Bench comprising of Justices Dipak Misra and U.U. Lalit set aside a Judgment of High Court which had allowed the accused to recall the witnesses on the aforementioned grounds. The Supreme Court in State of Haryana vs. Ram Mehar & Others has held that, recalling of witnesses as envisaged under Section 311 of the Code of Criminal Procedure on the grounds that accused persons are in custody, the prosecution was allowed to recall some of its witnesses earlier, the counsel was ill and magnanimity commands fairness should be shown, is not acceptable.

The practice of handing over the custody of the child while ignoring the claim of a parent is not acceptable: SC

The Supreme Court, in Beata Agnieszka Sobieraj Vs. State Of Himachal Pradesh has depreciated the practice of handing over the custody of the child to an institution, while ignoring the claim of a parent, especially the mother of the child, as not acceptable. In the instant case, the father of the child has no objection to the handing over of parental custody to the mother. But the High Court handed over the custody of the Child to the institution where he studies.

Setting aside the order of High Court, the bench comprising of Justices Jagdish Singh Khehar and Arun Mishra observed: “We find no justification whatsoever in the High Court, where the child is admitted for education, on the affirmation by the institute itself, that it would look after the child, as also, not charge any fee from the child. The handing over of custody to an institution, while ignoring the claim of a parent, especially the mother of the child, is not acceptable.” The Court then directed the Institution to hand over the custody of child to her mother as and when she visits India for the same.

Whether old age of the accused and long distance travel difficulty, can be a ground to transfer a criminal case?

 Madras High Court, in a recent order, observed that old age of the accused and long distance travel difficulty are not a valid ground for transferring a case. he accused, in a corruption case, had sought transfer of Trial from a Court situated 1000 kilometres away from his place of residence, on the ground of his inconvenience on account of his age as well as his present place of residence. The Prosecution contested his plea on the ground that case has become part-heard and some witnesses have already been examined. The High Court, however, gave liberty to the petitioner to file a petition before the Special Judge for dispensing with his personal appearance when really his attendance is not required.

Divorced Muslim woman also entitled to maintenance till she gets remarried: Bombay HC

Justice N.W. Sambre in Rehana Sultana Begum vs. Hashmi Syed Mujib held that that even if the parties are governed by Mohammedan Law and provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 are applicable, still the maintenance is not required to be confined only to iddat period but till the said lady gets remarried.

The lady had approached High Court against the Magistrate order dismissing her application under section 125 CrPC for future maintenance on the ground that, the parties to the proceedings are Muslims by religion and as such, in view of provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 she is not entitled to maintenance beyond Iddat period. The Court held that the lady is entitled for maintenance of Rs.1000/- per month from the date of filing of the application i.e. 22/09/1989. The Court, taking into account of the pendency of her application for more than two decades, granted liberty to move the appropriate Court for modification i.e. enhancement under Section 127 of the Code of Criminal Procedure.

SC invokes Article 142 of Constitution to grant divorce by Mutual Consent

The Bench comprising of Justices Kurian Joseph and RF Nariman observed: “Having regard to the background of the several litigations between the parties over a period of five years, background of the parties living separately for more than five years, submission of Mr. Vivek Kumar Varinder Wadhera that he has to go back to his work place in U.S.A and also having regard to the submission of Aditi Vivek Kumar Wadhera that she has now to think of her future, we are of the view that it is a fit case to invoke our jurisdiction under Article 142 of the Constitution of India and grant a decree of divorce by mutual consent by waiving the statutory period of waiting.” The Couple submitted before the Court that they have settled the disputes between them with regard to cases they filed against each other. The court has quashed all the criminal cases pending between them and has made clear that there shall not be any restraint on the travel of both the parties on account of the same.

Caste of a child born to inter-caste couple could depend upon the circumstances in which the child was brought up: AP HC

Siri Manjoosha Reddy, had approached the High Court challenging the decision of University which denied her admission to under-graduate medical courses under the quota reserved for Scheduled Castes, even though she possessed a community certificate by the Tahsildar stating that she belongs to SC community.

The Division Bench comprising of Justices V. Ramasubramanian and Anis referring to Apex Court decision in Rameshbhai Dabhai Naika Vs. State of Gujarat observed: “It is clear that the Supreme Court did not say that a child born to a couple, who married transgressing the barriers of Caste, would take the community of his or her father and not that of his or her mother. On the contrary, the Supreme Court categorically pointed out that the answer to the question would depend upon the circumstances in which the child was brought up and that the same was primarily one of facts.”

The High Court also observed that University cannot disregard certificate issued by competent authority and cannot question its validity. The Court added: “In so far as the case on hand is concerned, the petitioners mother has sworn to an affidavit in support of the writ petition claiming that after her marriage, she stayed only with her family in her Village and that the children were brought by her, according to the customs and practices prevailing in the community. It is, perhaps, on the basis of such a claim that the Revenue Department chose to issue the community certificate to the petitioner.”


Compiled By Mr. Kumar Deepraj


Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s