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Review: Karnataka HC Rules That Attesting Witness to Sale Deed Can't be Held Criminally Liable for Cheating in Absence of any Allegations - FACTLY
Sai Krishna Muthyanolla
October 11, 2023
In this week’s review of Court Judgments, we look at Supreme Court’s observation that Insurance claims can’t be rejected based on ambiguous term, Allahabad High Court invoking Doctrine of Parens Patrie, Madras High Court’s observation that Employee’s suspension cannot extend endlessly merely due to pendency of criminal cases, Calcutta High Court quashing the case of husband and stating wife can’t be stopped from residing with visually challenged mother and Karnataka High court reiterating that merely being a attesting witness doesn’t make one an accused.
Supreme Court: Insurance claims can’t be rejected based on ambiguous term
While hearing the appeal related to the case, M/S Mehta Jewellers vs. National Insurance Company Ltd. a division bench of the Supreme Court, comprising Justice Hima Kohli and Justice P.S.Narasimha, observed that the claim arising out of an insurance policy cannot be repudiated on the basis of a term in the policy which is itself ambiguous.
The case is related to an insurance policy purchased by one Mehta Jewellers from National Insurance Company Ltd. for insuring ornaments in its showroom in Pune. A burglary took place in 2007, and several of the gold ornaments were stolen. However, the claim for insurance was repudiated stating that the ornaments in the shop at the time of the burglary were kept in a steel safe of local make and not in a burglar-resistant safe.
The appeal in the Supreme Court was filed by the appellant challenging the order of the National Consumer Disputes Redressal Commission wherein it dismissed the claim on the ground that a simple steel almirah cannot be described as a safe and the lock installed is not complex. Prior to that, the appellant challenged the denial of its claim before the State Consumer Disputes Redressal Commission. The Commission ruled in the appellant’s favour and directed the respondent to pay an amount of ₹ 28,95,600/- along with interest.
This order was taken in an appeal by the respondent before the National Commission. The National Commission, in its order, had allowed the appeal. It observed that the almirah could be opened by widening the space between the doors of the almirah. It also noted that in common parlance, a normal steel almirah is not referred to as Safe, which is generally understood to be a strong metal cabinet with a special lock where valuables like money, jewellery, important documents, etc. are kept.
This was challenged in the Supreme Court. The Court allowed the appeal observing that it was unjustified on the part of the respondent to repudiate the claim of the appellant for the sum claimed. It observed that the insurance policy itself does not define the word ‘locked safe’ nor does it define what should be the standard make of the ‘locked safe’.
In its judgment, the Supreme Court upheld the amount awarded by the State Commission in favour of the appellant.
Allahabad HC: Invokes Doctrine of Parens Patrie and appoints wife as guardian of husband in comatose.
As per the details of the case, Pooja Sharma vs. State of U.P and others, the petitioner, who is the wife of a person in a comatose state, approached the High Court to be appointed as her husband’s guardian, to enable her to dispose of the property registered in his name.
The wife wanted to sell the property to meet the expenses for her husband’s treatment, who is in a permanent vegetative state due to a head injury. The court has earlier directed the Director, AIIMS to constitute a medical board consisting of specialist doctors dealing with such conditions. As per the report submitted before the court, it was stated that the husband requires prolonged supportive and nursing care and is unlikely to make a significant neurological recovery in the near future.
In view of the condition of the husband who is in a coma and a permanent vegetative state, the question for consideration for the court was to determine who would be the guardian of such a person to handle the property, as there is no provision in the Mental Health Act and Guardians and Wards Act, 1890 for a person in a vegetative state.
The Court observed that although there is a clear distinction between the Rights of Persons with Disabilities Act, 2016, and the Mental Healthcare Act, 2017, however, neither provides for the guardian of a person in a comatose state.
The Court relied on Aruna Ramchandra Shanbaug vs. Union Of India & Ors, wherein the Supreme Court held that a person in minimally conscious state, though not fully coherent, is able to interact shall be governed by the Rights of People with Disabilities Act, 2016.
However, a person in a permanent vegetative state will not be covered within the definition of persons with disabilities and hence excluded from the ambit of the Act. Based on various jurisdictions, the court observed that the doctrine of ‘Parens Patrie”, must be invoked under exceptional circumstances to “meet the ends of justice”, and held that mental incompetency is an exceptional circumstance that justifies the exercise of jurisdiction in invoking the doctrine for appointing guardian.
The Court appointed the petitioner-wife as the guardian of her husband.
However, the Court also observed any relative or friend of the person in a comatose state pointing that the guardian, is not acting in the best interest of the person lying in a comatose state, can approach the Court for issuance of proper direction and for removal of the guardian.
Madras HC: Employee’s suspension cannot extend endlessly without disciplinary proceedings merely due to pendency of criminal cases.
Two judge bench of Madras High Court consisting of Justice R Suresh Kumar and Justice K Kumaresh Babu, observed that in cases where employees were suspended from service in connection with a crime, the suspension cannot continue endlessly without initiating disciplinary proceedings merely due to the pendency of criminal case.
The observation was made in the case, The Director General of Police vs. D Jayakumar, in which, the employee, who was working as a Special Sub-Inspector in the police department was allegedly caught red-handed for receipt of a bribe by the Vigilance and Anti-Corruption Department and was suspended. His appeal against the suspension order was rejected and the further appeal to the office of the Joint Commissioner of Police was also rejected.
After reviewing the case details, the court noted that in all the rejection orders, the reason given by the authorities for not revoking the suspension was the pendency of criminal cases. The authorities stated that once the case was complete, a decision would be taken. Until such a time, it was not conducive to reinstate the employee.
When the employee approached the High Court, the court directed the State to post the employee in a non-sensitive post. The authorities filed an appeal.
The court dismissed the appeal and noted that the employee was on the verge of his superannuation, before which some decision had to be taken as to whether disciplinary action separately has to be taken against him or otherwise on superannuation and whether the services of the employee has to be retained for the purpose of taking disciplinary action in future. For this purpose, the court felt that it was necessary and inevitable to revoke the suspension of the employee.
Calcutta HC: Wife can’t be stopped from residing with visually challenged mother and quashes husband’s criminal complaint.
In the case, Sampa Deb (Basu) vs. The State of West Bengal & Anr. a criminal intimidation complaint was lodged by a man against his wife, alleging that she drove him out of her parental home where they used to reside and also beat him up.
The woman was residing with her visually impaired mother, which happens to be in proximity to her workplace. The court looked into factors like – her being the sole breadwinner, her in-laws being deceased, etc.
In the petition filed to quash the complaint, the petitioner argued that her aged mother was 100% blind in both eyes. She was working as a teacher in s primary school, that is located near her parents’ home. She and her husband resided with her mother since 2009, after her husband’s mother passed away.
The court noted that the main dispute between the parties was regarding their place of stay, but that the wife’s case was supported by being the sole earning member of the family, with her place of work located near her mother’s residence, who needed her help and support.
Karnataka HC: Attesting witness to Sale Deed can’t be held criminally liable for cheating in absence of any allegations against them.
In the case, Rajesh Totaganti vs. State of Karnataka & Anr, a single judge bench of Karnataka High Court noted that an attesting witness to a sale deed cannot be dragged into a case of cheating if there is no other allegation against him except that he is an attesting witness.
As per the case details, on 7 October 2015, the second respondent i.e., the complainant filed a private complaint against three accused, with the petitioner being the second accused.
The Magistrate referred the private complaint for investigation, leading to the registration of crime for offences under Sections 420, 465, 467, 468, 471, 474, read with Section 34 of IPC. Subsequently, a charge sheet was filed against the petitioner. The petitioner approached the Court challenging the proceedings initiated against them.
The petitioner argued that the complainant’s allegations are primarily against accused No. 1, who happens to be a relative of the complainant. It was contended that he was neither a beneficiary of any alleged fraud nor someone who purchased property. Instead, he was merely an attesting witness. Therefore, he seeks to have the entire proceedings against him quashed.
This was opposed by the prosecution stating that since the police have filed a charge sheet after the investigation, it is now the petitioner’s responsibility to prove their innocence during the trial.
Going through the records, the court noted that the allegations were primarily against accused no.1 and the petitioner was only an attesting witness to a sale deed. The Court also referred to a Supreme Court case,  M. Srikanth vs. State of Telangana and Anr.
The Court concluded that allowing the proceedings against the petitioner to continue would constitute an abuse of legal process and result in a miscarriage of justice. It also clarified that its observations pertain only to the petitioner’s case under Section 482 of Cr.P.C., without affecting the proceedings against the other accused.

created: October 11, 2023


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Review: Karnataka HC Rules That Bank Employees' Gratuity Can't be Adjusted Against Their Outstanding Loan
Sai Krishna Muthyanolla
October 26, 2022
In this week’s review of Court Judgments, we look at Madhya Pradesh High Court’s verdict reducing the sentence of minor child’s rape convict, Karnataka High Court’s directions regarding offsetting of outstanding loan against employee’s gratuity, J&K&L High court’s observation regarding a Domestic Violence complaint and Competition Commission of India’s imposition of penalties on companies for their anti-competitive practices.
Karnataka HC: Bank employees’ gratuity can’t be adjusted against their outstanding loan
The single judge bench of Justice Suraj Govindaraj dismissed a petition filed by the Canara Bank and held that that the gratuity amount payable to an employee cannot be adjusted by the bank with his outstanding loan amount.
In the case, M/S Canara Bank vs. M. Shantha Kumari, the husband of the respondent in the case, joined Canara Bank in 1975 as a peon and was later promoted as a clerk in 1987.
He availed a Housing Loan which was being repaid from time to time. In 2005, disciplinary proceedings were taken up against him with allegations of gross misconduct. Punishment of compulsory retirement was imposed in 2006.
He filed an application for the release of gratuity amount, which was rejected. He approached the Controlling Authority to seek directions to make the payments. The bank stated that there were dues to be received for the Housing loan as well as on account of the Staff Welfare Fund. Hence, these dues need to be adjusted against the gratuity amount.
The bench noted that there is a special treatment for payment of gratuity, both under Payment of Gratuity Act and also under Code of Civil Procedure, 1908. As per them, gratuity was given a special protection and the gratuity amount cannot be attached.
The court took notice of the petition, where-in the bank sought to adjust a sum of around Rs. 9.85 lakhs towards housing loan and Rs. 1.29 lakhs on account of Staff Welfare Fund liability. It observed that while the Staff Welfare Fund comes within the domain of the service conditions, the home loan is a different proposition. The terms of loan agreement, which is a commercial transaction between the bank and debtor, govern the home loan. This is irrespective of whether the debtor is employee of the bank.
The court also noted that the employee has made the claim for gratuity only in 2017 i.e., after the attaining the age of superannuation.
The court directed bank to comply with the earlier order of the appellate authority and proceeded to dismiss the petition by the bank.
Madhya Pradesh HC: Reduces rape convict’s sentence considering he had left minor victim alive
The Indore Bench of Madhya Pradesh High Court, comprising of Justice Subodh Abhyankar and Justice S.K.Singh reduced the sentence of a rape convict from life imprisonment to 20 years of imprisonment on the ground that he did not kill the 4-year-old victim after the heinous act.
The Appellant in this case, was accused and convicted under Section 376(2)(f) of IPC for committing rape upon a 4-year-old girl. The appellant submitted an appeal against the conviction.
He submitted that he was falsely implicated in the case. He further pointed out that the FSL report was not brought on record by the prosecution. Another argument was that this was not a case where-in he deserved the punishment of life imprisonment.
The state argued that the appellant does not deserve any leniency and the appeal needs to be dismissed. The court examined the submission of the parties and the trial court record and opined that the appellant was rightly convicted. The court stated that non-submission of the FSL report before the court was gross negligence of the police. However, the evidence proved the guilt of the appellant beyond doubt.
Therefore, the court upheld the conviction. In the appeal, request was also made to reduce the sentence to the time which he already spent under imprisonment. The court rejected this appeal and stated that the sentence cannot be reduced to the time already undergone in imprisonment.
However, it noted that the appellant was kind enough to leave the victim alive, therefore the life imprisonment is reduced to 20 years of rigorous imprisonment.
J&K&L HC: Once marriage stands validly dissolved by foreign court, proceedings under Domestic Violence Act cannot be initiated
A petition was filed in the Jammu & Kashmir and Ladakh High court challenging the complaint under Domestic violence Act against the petitioner. The complaint was challenged on the ground that there was no relationship of husband and wife between the petitioner and respondent since the passing of the decree whereby the marriage was dissolved.
The couple were married in 2007 in Jammu and post marriage, they became permanent residents of Germany. The relationship turned hostile after shifting to Germany. As per the petitioner, he came to India during February 2014, for a period of 10 days.
Upon his return to Germany, he found that the respondent i.e., his wife left the matrimonial house along with gold, goods, and money. Efforts to know the whereabouts were futile and she was untraceable. As per the petitioner, the wife filed a false and frivolous case in Germany and started residing separately. Several attempts of reconciliation by the court in Germany failed as she refused to stay with him. He approached District Court Wisman, Germany and filed for divorce. The foreign court allowed the divorce petition in July 2017.
The domestic violence complaint filed by the respondent/complainant does not disclose the divorce petition in the foreign court and that the marriage was dissolved.
The court stated that Section 2(f) of the Domestic Violence Act defines ‘domestic relationship’ and there was no domestic relationship existing between the parties. Without which the provisions of the Domestic Violence Act cannot be invoked.
The consideration before the court was the jurisdiction of the foreign court. It observed that since both were permanent residents of Germany, they are subjected to the laws of the country. Therefore, the decision of the foreign court in allowing the petition of dissolving the marriage stands. It also noted that there was no challenge against the decision of the court by the respondent i.e., wife which implies that she has accepted dissolving of marriage. Therefore, as per the decree, the relationship ceases to exist. Hence, the court quashed the complaint of domestic violence.
Penalty imposed by The Competition Commission of India on Google, Go-Ibibo, Make My Trip, OYO
The Competition Commission of India (CCI) has held that the commercial arrangement between Make My Trip, GoIbibo and OYO was anti-competitive and imposed an overall penalty of Rs. 392.36 crores.
In another case, CCI imposed a penalty of Rs. 1.33 thousand crores on Google for Anti-competitive practices in relation to Android Mobile devices.
Rs. 392 crores penalty on GoIbibo, Make my Trip & Oyo.
The CCI bench was adjudicating the case of Federation of Hotel & Restaurant Association of India (FHRAI) & Anr, vs. MakeMyTrip India Pvt. Ltd(MMT) & Ors. It held that the commercial agreement between MakeMyTrip, GoIbibo and OYO was anti-competitive as it led to de-listing of FabHotels, Treebo and independent hotels which were availing the services of these franchisors.
FHRAI has filed a case under Section 19(1) of the Competition Act, 2002 against Make My Trip and GoIbibo (collectively “MMT-GO”) and Oravel Stays Pvt. Ltd. (“OYO”).  The allegation was that there was a commercial arrangement to de-list the competitors of OYO from MMT-GO online portals.
FHRAI alleged that MMT-GO has imposed price parity in its contracts with hotel partners, which ensured that the hotel partners were not allowed to sell their rooms to any other Online Travel Agency (OTA) or on its own online portal at a price lesser than MMT-GO platform. However, MMT-Go can fluctuate the prices of such rooms. Further, the partners cannot refuse to provide rooms on MMT-Go platform of they were being provided on other OTA.
MMT-GO was alleged of indulging in predatory pricing by offering hotel rooms at a lesser price. The customers were offered deep discounts which helped in expansion of their own network and in customer retention. This has impacted the smaller OTAs in the market. Treebo & FabHotels were denied market access because they were removed from the MMT-Go platform as they did not agree to pay the commission brokerage charged by the platform. Meanwhile, MMT-Go has entered into a confidential commercial agreement with OYO, where-in the later was given preferential treatment on the platform. CCI held that this commercial agreement was non-competitive and passed directions to MMT-Go.
It imposed a monetary penalty of Rs. 223.48 crores on Make My Trip and GoIbibo and penalty of Rs. 168.8 crores on OYO, which is 5% of their turnover.
Penalty of Rs. 1.34 thousand crores imposed on Google
In another case, CCI held that Google was abusing its dominant position in multiple markets in the Android device ecosystem and has issued a cease and desist order against Google. It imposed a penalty of Rs. 1,337.76 crores and also laid down measures which Google must comply with.
The mobile operating system (OS) – Android, was acquired by Google in 2005. CCI in its press release stated that it has studied the various business practices of Google including its licensing of Android mobile OS as well as other proprietary mobile applications like Play Store, Google Search, Google Chrome, and YouTube.
It looked into the substitutability between Google’s Android Play Store and Apple’s iOS AppStore and found that there was no substitutability between them. CCI noted that Google is dominant in all the relevant markets in India, including – licensable Operating Systems (OS) for smart mobile devices, app store for Android smart mobile and general web search services and online video hosting platforms (OVHP) in India.
CCI observed that Google operates and manages Android OS and other proprietary licenses and has entered into multiple agreements with the Original Equipment Manufacturers (OEMs) to use the Android OS and Google apps in their smart devices.
The commission concluded that these agreements assured that the search app, widget, and chrome browser were pre-installed in on Android devices, which provides a significant competitive edge to Google’s search services. This advantage was extended to its other applications like YouTube.
It noted that, with these agreements in place, the competitors of Google never stood a chance to compete. Further, these agreements have also eliminated the choice for the users. CCI held that the markets should be allowed to compete on merits and the onus lies on the dominant player i.e., Google in this case, to prove that its conduct does not impinge the competition on merits.
Apart from the monetary penalty, CCI has issued certain measures which includes – barring of google from forcing OEMs to pre-install Google’s apps, not to restrain OEMs to choose from Google’s proprietary apps, prohibition of offering any monetary or other incentives to OEMs, barred from entering into any arrangements that ensure exclusivity etc.
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Review: Karnataka HC Rules That Case is Justified for Failure to Report a POCSO Related Offence
Sai Krishna Muthyanolla
June 14, 2023
In this edition of court judgements review, we look at the Supreme Court’s judgements on judicial review, conferment of title in immovable property cases, Karnataka High Court’s judgement on POCSO Act, Madras High Court’s decision on removal of service, and Delhi High Court’s judgement on validity of arbitration clause in a contract after its novation.
Supreme Court: The scope of judicial review cannot be extended to examine the validity or reasonableness of an authority’s decision as a matter of fact.
In Indian Oil Corporation & Ors. vs. Ajit Kumar Singh & Anr., the Supreme Court held that the power of judicial review is limited to the decision-making process itself and not on the merits of the decision. Further, judicial review cannot be used to decide as if it is the first stage of case inquiry.
A two-judge bench comprising Justice Abhay S. Oka and Justice Rajesh Bindal was hearing an appeal petition against the judgement of the Patna High Court that set aside the punishment to an employee based on the departmental proceeding by re-admitting evidence at a stage of intra-court appeal.  The brief facts of the case are as follows. Three bidders participated in the tender notice that the Appellant Corporation published on 30 June 2001, for the job of “Repair of Surface Drain and Tank Pad and Tank Nos. 235, 236 and 237 inside Refinery” (Barauni Refinery). On 24 April 2001, technical bids were opened.
The price bids, however, were not opened that day and were instead kept in K.C. Patel’s table drawer behind a lock with the notation “not opened today.” Two workers of the appellant, K.C. Patel and Ajit Kumar Singh had the keys in their possession. The Price bids were altered by altering the bid amount of one of the bidders while they were trapped within a drawer. The Central Forensic Institute’s investigation report provided evidence that the tampering had occurred. A chargesheet was sent to the accused to explain why a departmental inquiry should not be initiated against him.
After receiving the investigation report, the disciplinary authority imposed a punishment withholding the annual increments. An appeal filed before the appellate authority was also subsequently dismissed. Further, the respondent filed a writ petition before the High Court, which was dismissed by the Single Judge. However, later a division bench reversed the judgement of a single judge against which the present appeal is made in the Supreme Court.
Upon hearing the arguments of both parties, the apex court held that when exercising its judicial review authority, the court cannot decide as if the case is still in its early stages, as if the investigation is still ongoing, and as if the inquiry report is still being written. At the judicial review stage of a disciplinary procedure, evidence cannot be evaluated again as if the verdict in a criminal trial were being re-examined by the next higher court. It relied on the apex court judgement in Deputy General Manager (Appellate Authority) vs. Ajai kumar Srivastava, wherein the scope of judicial review has been clearly outlined.
Further, the apex court held that,
Accordingly, the appeal is allowed, and the judgement of the division bench of the High Court is set aside.
Supreme Court: An agreement to sell or the power of attorney are not documents of transfer and as such the right of title and interest of an immovable property do not stand transferred by mere execution of the same.
The Supreme Court, in Ghanshyam vs. Yogendra Rathi, held that the will and general powers of attorney (“GPA”) are not acceptable as title documents or as documents granting rights in any immovable property and mere execution of the same doesn’t render them the title.
A two-judge bench comprising Justice Dipankar Datta and Justice Pankaj Mittal was hearing an appeal petition filed by the defendant after having lost from all three courts. The brief facts of the case are as follows.
The owner of the “Suit Property” located in Delhi was Mr. Ghanshyam (“Appellant”). He and Mr. Yogendra Rathi (the “Respondent”) entered into an agreement to sell on 10 April 2002, for the sale of the suit property, and the Respondent paid him the full sale price. The appellant signed a will naming the Respondent as the beneficiary of the suit property on the same day. A general power of attorney was also signed by the appellant on the respondent’s behalf. The Respondent was given ownership of the suit property, but no sale deed was signed.
The respondent granted the appellant a three-month licence to use a section of the suit property. The appellant did not leave the property after the three-month grace period ended. The Appellant was sued by the Respondent in order to be removed from the Suit Property and to be compensated for any lost earnings. On the basis of the Agreement to Sell dated 10 April 2002, General Power of Attorney, memo of possession, receipt of payment of sale consideration, and a will date of 10 April 2002, the Respondent asserted his ownership of the suit property.
While the appellant did not dispute the execution of GPA and will, the trial court and the subsequent appeals before the High Court decided in favour of the respondent, and the appellant filed the present appeal before the apex court.
Upon hearing both sides, the apex court held that a plain reading of section 54 of the Transfer of Property Act, 1882, holds that an agreement to sell with payment of full consideration and possession along with irrevocable power of attorney and other ancillary documents is a transaction to sell even though there may not be a sale deed, are of no help and it does not override the specific provisions of law that require the execution of document of title or transfer.
The apex court relied on its judgement in Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr, and Delhi High Court’s decision in Imtiaz Ali vs. Nasim Ahmed, and G. Ram vs. Delhi Development Authority, wherein it was held that,
The court further held that, since the prospective purchaser has performed his part of the contract, he lawfully acquires possessory title which is liable to be protected in view of Section 53A of the Transfer of Property Act, 1882. The said possessory rights of the prospective purchaser cannot be invaded by the transferer or any person claiming under him.
The court further cautioned the use of will or GPA as a document of title and held that it is against the statutory law. Any such practice or tradition prevalent would not override the specific provisions of law which require execution of a document of title or transfer and its registration to confer right and title in an immovable property of over Rs.100/- in value.
Accordingly, the appeals are dismissed.
Karnataka HC: Non-reporting of POCSO offences snowballs; refuses to quash FIR against gynaecologist for failing to report sexual assault on minor.
The Karnataka High Court, in Dr. Chandrashekar T B vs. State of Karnataka, refused to quash an FIR against a gynaecologist for failure to report sexual assault on a minor. The Court held that non-reporting is a serious offence and has the potential to snowball into more serious offences.
A single Judge bench headed by Justice M Naga Prasanna was hearing a petition calling into question the proceedings registered against the appellant for failure to report sexual assault on a minor. The allegation against the petitioner was that he has performed the act of medical termination of pregnancy on the victim who was then 12 years and 11 months old and had been subjected to sexual activity. The offence against the petitioner, in particular, was the one punishable under Section 21 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
The counsel for the petitioner argued that the doctor is reputed and had no malaise intention of doing anything that is alleged. The physical appearance of the victim was such that the victim seemed to be a major. The counsel pleased non-guilty relying on ignorance. The counsel for the state opposed the petitioner’s claims.
After hearing both sides, the court looked at section 21 of the POCSO Act. A plain reading of the section provides for the punishment for failure to report sexual assault on a minor. Further, section 19 clearly mandates that notwithstanding anything contained in the Code of Criminal Procedure, any person who has knowledge that such an offence has been committed shall report to the local Police or any other enumerated authority under clause (a) without any loss of time.
The court held that it was a serious dereliction of duty from the duty who commands a good amount of experience. Non-reporting of such cases will further snowball into serious offences. It relied on the judgement of the apex court in X .. vs. Principal Secretary, Health and Family Welfare Department,  wherein it was held that failure to report would definitely ensure punishment.
Further, in the State of Maharashtra and another vs. DR. Maroti, the apex court held that reporting of offences under Section 19 and punishment for those offences under Section 21 must be of strict compliance to achieve the legal objectives of the POCSO Act.
Accordingly, the petition is dismissed and further directed the state to ensure strict compliance with Section 19 and reporting of offences particularly by doctors who indulge in medical termination of pregnancy of minors in extenuating circumstances.
Madras HC: The use of abusive words may not be a serious one to impose a capital punishment of dismissal from service.
In S Raja vs M/s.Hindustan Unilever Ltd and another, the Madras High Court held that the use of abusive language and showing a threat posture may not be construed to be grave in nature and the punishment of dismissal from service is disproportionate to the gravity of offence.
A two-judge bench comprising Justice S Vaidyanathan and Justice R Kalaimathi was hearing a petition filed by the Secretary of the Hindustan Lever Limited Tea Workers’ Welfare Union, by name S Raja. The petitioner argued that disciplinary action had been taken against him because he had spoken abusively to the Manager and Executives, and he had been fired from service following an investigation. When challenged before the Labour Court, it observed that the worker’s dismissal for conduct was extremely disproportionate and reinstated with continuity of service and 50% back wages.
The management challenged this order before the single-judge bench, which held that the order of labour court was not in consonance with the established legal principles. This order of the single-judge bench is challenged before the division bench.
Upon hearing both sides, the division bench of the Madras High Court held that while imposing the punishment, the authority concerned must consider the extenuating or aggravating situation as well as the past record of an employee. In the present case, since the workman was punished for a similar offence a decade back in 2001, it can be said that the misbehaviour is not frequent. Further, labour court has all the powers to interfere with punishment under section 11A of the Industrial Disputes Act, 1947 and this power cannot be curtailed by any court unless the finding of the labour court is perverse.
Further, the court held that we cannot expect a low-level employee to behave like Jesus so as to turn his other cheek for getting a voluntary slap.
Accordingly, the order of a single judge is interfered with, and the award of the labour court is modified with reinstatement and non-entitlement of back wages.
Delhi HC: If the novated agreement does not have an arbitration clause, the arbitration clause in the original agreement would expire with the novation.
The Delhi High Court, in B.L. Kashyap and Sons Ltd vs. MIST Avenue Pvt. Ltd, held that the arbitration clause in a contract perishes with the novation of the contract if the novated agreement does not contain an arbitration clause.
A single-judge bench headed by Justice Pratheek Jalan was hearing a challenge against the award by the tribunal regarding the non-arbitrability of the dispute. The facts of the case are as follows.
In 2014, the parties signed a Construction Agreement, which contained an arbitration clause (clause 20). It appears that certain disputes arose between the parties, which were resolved mutually, and the terms recorded in a Memorandum of Understanding dated 08 October 2015 [hereinafter, “the MoU”]. Admittedly, the MoU does not contain an arbitration clause at all.
It stipulated that the petitioner would receive specific payments, and in exchange would give over the assets and supplies to the respondent. When the agreed-upon payment was not made, a disagreement occurred between the parties. It is the contention of the petitioner that the respondent did not pay the sums payable under the MoU, as a result of which it was entitled to claim its dues under the 2014 Contract. Consequently, the petitioner invoked the arbitration clause contained in the 2014 Contract.
The central dispute between the parties is whether the arbitration agreement contained in the 2014 Contract survived the execution of the MoU.
Upon hearing both parties, the court relied on the apex court’s judgements in Union of India vs. Kishorilal Gupta and Lata Construction vs. Rameshchandra Ramniklal Shah, where it was held that the arbitration clause in a contract would perish with its novation.
On the question of whether the impugned award calls for interference on this account, the court relied on the judgement in Ssangyong Engg. & Construction Co. Ltd. vs. NHAI,  wherein it was held that the interference by Courts with arbitral awards on the ground of patent illegality is permitted only in limited circumstances. On questions of contractual interpretation, the findings of the arbitral tribunal, being the domestic tribunal of choice, are generally to be respected, unless they are found to be irrational or perverse, in the sense that the interpretation is so implausible that no reasonable person could have arrived at it.
Further, under Section 34 of the Act, the court is not required to accord its own interpretation to the contractual documents, but only to assess whether the provisions are capable of the interpretation placed upon them in the impugned award.
Accordingly, the court held that the view taken by the arbitral tribunal does not call for interference under section 34 of the Arbitration and Conciliation Act, 1996. The petition was dismissed accordingly.


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Review: Karnataka HC Rules That Compassionate Appointment Cannot be Sought as a Matter of Right and Against a Particular Post. - FACTLY
Sai Krishna Muthyanolla
April 10, 2024
In this edition of court judgements, we look at the Supreme Court’s judgement on interference of High Courts in acquitting a trial court order, Delhi High Court’s judgement on mental cruelty by wife by leaving matrimonial home repeatedly, Karnataka High Court’s judgement on compassionate appointments, Bombay High Court’s judgement on voluntary abandonment of employment and Telangana High Court’s judgement waiving off the 1-year cooling period for dissolution of marriage.
Supreme Court: Unless the finding of acquittal is found to be perverse or impossible, interference with the same is not permissible by the appellate court.
In Ballu @ Balram @ Balmukund and Another vs. The State of Madhya Pradesh, the apex court held that interference against the acquittal would not have been warranted by the High Court unless the view taken by the trial Judge was a perverse or impossible view.
The two-judge bench of the apex court comprising Justice B.R. Gavai and Justice Sandeep Mehta, was hearing an appeal against the Madhya Pradesh High Court’s judgement that overturned the acquittal of the accused. The brief facts of the case are as follows: The deceased Mahesh Sahu was in a relationship with a girl named Anita, who is the sister of one of the accused and the daughter of the other accused. Both Mahesh Sahu and Anita resided in Agra for a couple of months, thereafter which Anita returned and got married to another person. Post-marriage, Anita was in contact with Mahesh Sahu.  Due to this enmity, the appellants (mother and son) caused the death of the deceased in furtherance of their common intention. The trial court acquitted the accused persons since the prosecution has failed to prove the case beyond reasonable doubt. Upon appeal, this order was reversed by the High Court, which sentenced the accused. The current case is against the judgement of the High Court.
The counsel for the appellant argued that the High Court erred in reversing the well-reasoned judgment of acquittal, whereas the counsel for the state argued that the trial court judge misread the evidence, thereby arriving at a wrong conclusion. Upon hearing both sides, the court remarked that the prosecution case rests on circumstantial evidence. The apex court looked at the judgement in Sharad Birdhi chand Sarda vs. State of Maharashtra, in which golden principles regarding conviction on the basis of circumstantial evidence are crystallized as follows.
Further, in cases of circumstantial evidence, the court remarked that it’s really important that before someone is declared guilty and punished, there should be clear and strong evidence proving they actually did the crime. It’s not enough that they might have done it; there must be solid evidence showing beyond doubt that they’re responsible. This evidence should be so convincing that there’s no other reasonable explanation except that the accused did it.
Looking at the findings of the trial court and order of the High Court, the Apex court remarked that the High Court overturned a well-reasoned judgment from the trial court that was based on a correct understanding of the evidence, solely relying on conjectures and surmises. Even though the High Court mentioned the legal guidelines set by this Court regarding when it can overturn a decision of acquittal on appeal, it had completely misapplied those guidelines.
Accordingly, the Judgement of the High Court is quashed and set aside.
Delhi HC: Withdrawal from a marital relationship from time to time, without any fault on the part of the spouse, amounts to mental cruelty.
In X vs. Y, the Delhi High Court held that prolonged periods of continuous separation by the wife without any fault of the husband amounts to mental cruelty.
The Division bench of the Delhi High Court comprising Justice Suresh Kumar Kait and Justice Neena Bansal Krishna was hearing an appeal against the order of the Family Court that rejected the petition for divorce by the husband. The brief facts of the case are as follows: The appellant husband and the respondent got married in 1992 and had a son and a daughter. Over the course of about 19 years, they lived together until they eventually separated. The husband stated that the respondent had an intemperate and volatile personality and had subjected them to various forms of cruelty. The husband also claimed that the respondent left them on at least seven occasions, including the last and final time. Aggrieved by this, the husband filed the petition for divorce on grounds of desertion and cruelty.
The wife responded that she suffered humiliation by her mother-in-law and the appellant always acted on the advice and instigation of her mother-in-law. The family court, based on these arguments, framed three issues.
Upon careful examination of each incident of isolation, the trial court judge held that there was no cruelty committed by the wife and it is rather the husband whose conduct shows reasonable cause for the respondent to have left the matrimonial home. Accordingly, the divorce petition was dismissed. The present appeal is against this order.
The High Court, relying on the Samar Ghosh vs. Jaya Ghosh, held that long periods of continuous separation could lead to an irreparable breakdown of marriage, constituting mental cruelty and cessation or deprivation of cohabitation and conjugal relationships, which is an act of extreme cruelty. Further, the court remarked that the entire chain of evidence suggests that the respondent left the matrimonial home, from time to time, without there being any act or fault on the part of the appellant. Such withdrawal by the respondent from time to time, are acts of mental cruelty to which the appellant was subjected, without any reason or justification.
Furthermore, the High Court, based on multiple apex court judgements, remarked that while looking at the acts of mental cruelty, the court must look at married life as a whole and not merely at a few isolated incidents.
The High Court held that it is a case of mental agony to the appellant entitling him to a divorce, on the ground of cruelty under S. 13(1)(ia) of the Hindu Marriage Act, 1955. Since the period of desertion is reflective of an intent of abandonment and rejection of matrimonial relationship, the essential ingredients in proving the grounds for desertion, the appellant is entitled to divorce on grounds of desertion too.
Accordingly, the High Court set aside the order of the Family Court and the husband was granted the divorce on grounds of cruelty and desertion.
Karnataka HC: Compassionate appointment cannot be sought as a matter of right and against a particular post.
In Smt. K. C. Nagalambike and Ors. vs. The Managing Director KSRTC & Ors, the Karnataka High Court held that though the purpose and object of compassionate appointment are to overcome the financial difficulty by the sudden demise of a breadwinner, they cannot be sought as a matter of right and against a particular post.
The single-judge bench comprising Justice S.G. Pandit was hearing a petition to issue a writ of mandamus to consider appointment to eligible posts under compassionate grounds. The brief facts of the case are as follows: The father of the petitioner, S. Guruswamy, was working as a senior driver and passed away while on duty on 10 September 2011. After his death, being a qualified Civil Engineering graduate, the petitioner applied for the position of Junior Engineer (Civil) on compassionate grounds.
Initially, they were told there were no vacancies for the Junior Engineer (Civil) position, and their names would be put on a waiting list for compassionate appointments. Later, the Karnataka State Road Transport Corporation (KSRTC) decided not to make compassionate appointments to Grade-III Supervisory Posts. On 5 September 2018, the petitioners were asked to apply for the post of Junior Assistant-cum-Data Entry Operator if they were interested. They were also given other options, like a Grade-III Security Guard position, but the petitioner declined this offer.
The counsel for the petitioner argues that his case should be considered for compassionate appointment according to the scheme that was in place at the time of his father’s death in 2011. They claim that the scheme allowed for appointments to Supervisory Posts and Junior Engineer positions, and since the second petitioner was a qualified Civil Engineering graduate, he should be considered for the Junior Engineer position. They argued that not considering his case goes against the scheme and is discriminatory.
The counsel for the corporation argued that a person cannot seek compassionate appointments as a matter of right and against a particular post. Further, the purpose of providing a compassionate appointment would be defeated if the petitioner is provided a compassionate appointment after more than ten years.
After hearing both sides, the Karnataka High Court’s single-judge bench stated that the petitioner wasn’t entitled to any relief. The court emphasized that compassionate appointments aim to help financially after a sudden death, and if there was a real need for employment, the petitioner wouldn’t have rejected the Grade-III Security Guard or Junior Assistant-cum-Data Entry Operator positions. Additionally, when the petitioners are able to survive without compassionate appointment for more than a decade, it means, they may not require appointment much less for compassionate appointment.
Bombay HC: Voluntary abandonment of employment cannot be accepted on account of the absence of a notice on calling upon to join duties.
In M/s. Premsons Trading (P) Ltd vs. Dinesh Chandeshwar, the Bombay High Court held that it is a well-settled law that to prove voluntary abandonment of employment, there must be a notice directing to resume duties. In the absence of any such notice, the voluntary abandonment of employment cannot be accepted.
The single-judge bench headed by Justice Sandeep V. Marne was hearing a petition challenging the award passed by the Presiding Officer, Second Labour Court, Mumbai. The brief facts of the case are as follows: The petitioner is a private company involved in trading. The respondent began working for them in August 1988 as a Counter-Boy at a retail store called ‘Premsons’ in Mumbai. Later in November 2001, he was transferred to another company within the same group as a Dispatch Incharge in the Crockery Department. In January 2005, he was moved to the petitioner’s warehouses in Sewree and Wadia House, Cotton Green. The respondent claims he worked until 12 February 2013, when his services were terminated by one of the directors without proper procedure.
The respondent requested leave from 10 February 2013 to 15 March 2013, which was approved by one director but opposed by another, leading to the termination of his services. The respondent claims he worked until 12 February 2013, when his services were terminated by one of the directors without proper procedure. The respondent tried to resolve the issue through the Deputy Labour Commissioner, but since the petitioner didn’t cooperate, the case went to the Labour Court. Witnesses were examined by both parties before the Labour Court, which eventually ruled in favour of the respondent, directing the petitioner to reinstate him with back wages from 12 February 2013. The current case is against this award.
After hearing both sides, the court remarked that though the respondent attempted to join services, the petitioner was no longer permitting the respondent to work. Further, the claim of voluntary abandonment of employment cannot be accepted if there is no notice directing to resume duties.
Accordingly, the High Court, considering the unsavoury relationship between the parties, awarded for lumpsum of Rs. 8 Lakh in lieu of reinstatement and back wages within six weeks would be the appropriate remedy, instead of reinstating and full back wages as awarded by Labour court. The petition stands disposed of.
Telangana HC: Grants waiver of mandatory waiting period of one year for divorce.
In Dandamudi Phani Krishna vs. Boyapati Lakshmi Aparna, the Telangana High Court granted the waiver of the mandatory period of one year for divorce, considering the exceptional hardships faced by the couple.
The Single judge bench headed by Justice P. Sam Koshy was hearing a plea against the order of the Family Court that declined their divorce petition since the petition was filed within one year of marriage. The couple approached the High Court for the waiver of the one-year waiting period. The brief facts of the case are as follows: The petitioners got married on 1 June 2023. They lived together for a few months, but then they started having problems due to health issues and impotency. Despite discussing their issues, they both don’t want to continue their marriage. They went to the Family Court to get a divorce, but their petition was rejected because they filed it within one year of marriage. The petitioners argue that the Family Court made a mistake in rejecting their petition and didn’t consider their health problems and impotency.
The counsel for the petitioners also relied on the apex court judgement in Amardeep Singh vs. Harveen Kaur, wherein the court held that time period under Section 13 of the Hindu Marriage Act, 1955 is directory and is open for courts to use their discretion in a case-to-case basis.
The counsel for petitioners also relied on multiple judgements of various High Courts that waived off the cooling period of one year in cases of exceptional hardships. The court looked at the situational hardships faced by the couple. It also noted that the couple already waited for ten months, and they only had two more months left to complete the waiting period required for divorce. So, they’ve already waited for a significant portion of the required time. Adding to the situation is the fact that the petitioner, who is forty years old, has received marriage proposals and wants to remarry. She’s concerned about the risks associated with pregnancy at her age, like a higher chance of miscarriage and complications during delivery. She wants to remarry soon to reduce these risks. Their decision to divorce is mainly because their health problems and impotency have made it too difficult for them to maintain their relationship. They both agree that there’s no chance of reconciliation, showing that their marriage has irretrievably broken down.
The High Court opined that it acknowledges the importance of exercising its discretion wisely, as outlined in Section 14 of the Hindu Marriage Act, 1955. This law empowers the Court to waive the obligatory one-year waiting period in cases of exceptional hardship, which is clearly evident in this particular case.
Accordingly, the order of the Family Court is set aside, and the petitioners are granted a petition under section 14 (1) of the Hindu Marriage Act, 1955.


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Review: Karnataka HC Rules That Court Can Order Husband To Pay Wife Monetary Expenses in Lieu of Shared House
Sai Krishna Muthyanolla
March 15, 2023
In this week’s review of Court Judgments, we look at Madras High Court judgment in support to equal rights to Tribal Women, J&K&L High Court’s order protecting a woman form being duped of the government officers who were in connivance with the Sarpanch, Karnataka High Court’s judgment regarding additional monetary compensation in lieu of residence in domestic violence case and Supreme Court’s observation regarding compulsory retainment of a Gazetted officer.
Karnataka HC: Court can order husband to pay wife monetary expenses in lieu of shared house.
Single judge bench of Karnataka High Court comprising of Justice V Srishananda modified an order passed earlier which directed the husband to pay an additional amount in lieu of a shared house and provide for alternate accommodation.
As per the details of the case, a trial court had earlier passed an order which directed a woman be paid Rs. 6 thousand as monthly maintenance and also a room to be provided for living in the shared house of the estranged husband.
This order was modified by the High Court relying on Section 19(1)(f) of the Protection of Women from Domestic Violence Act, 2005 (DV Act) which allows the court to pass an order for monetary expenses to be paid in lieu of a shared house, wherever the court feels it convenient to do so.
In this case, the court took notice of the fact that the husband is living with his first wife in the same house. Therefore, directing the estranged wife to live in the same house in a separate room would not be feasible and may give rise to further displeasure. This in turn can lead to civil/criminal litigation.
Hence, as per the powers accorded to it under Section 19(1) of the DV Act, the court has modified the earlier order of the trial court and directed the husband to pay his estranged wife Rs .5000 per month for alternate accommodation, apart from Rs. 6000 per month being paid for maintenance.
Jammu & Kashmir HC comes to the aid of a BPL women who was duped of employment by government officials in connivance with Sarpanch.
In the case Rajana Devi vs. State of J&K & Ors, a petition was filed in Jammu & Kashmir & Ladakh (J&K&L) High Court, where-in the petitioner challenged the appointment of one of the respondents as an Anganwadi worker at the cost of the petitioner’s entitlement.
As per the case details, applications were sought for the position of Anganwadi worker, for the Anganwadi Centre. There were three applications, of which one was disqualified based on residential status. In the assessment, the petitioner secured higher points than another applicant (Respondent 6), and hence, she was the number one candidate entitled to engagement.
The petitioner was taken aback when the order of appointment was issued to the other candidate. The petitioner filed a writ petition challenging the appointment prior to which the petitioner sought information and documents by filing an RTI application.
The petitioner belongs to Below Poverty Line (BPL) status and is a middle pass in her education. Her husband has a 50% permanent disability in his right-hand.
The Selection committee panel that issued the appointment was a 3-member committee, consisting of the Child Development Project Officer, a District Social Welfare Officer, and a Programme Officer of the ICDS project.
The basis of the appointment was an alleged affidavit submitted by the petitioner to the selection committee, in which the petitioner stated that she would not be working as an Anganwadi worker.
The allegation by the petitioner was that the selection panel was in connivance with the sarpanch of the village, whose daughter-in-law was appointed as the Anganwadi worker.
In their response, the respondents i.e., the woman appointed as Anganwadi workers as well as the government officials laid emphasis on the alleged affidavit to be the basis for appointment.
The single judge bench of Justice Rahul Bharti, took cognizance of the affidavit and based on the facts of the case, observed that there was a mala fide intent in getting the affidavit from the petitioner and she was duped, even though she has signed it.
One of the facts was that the affidavit was dated 24 November 2011, and the selection panel was prepared on 06 February 2012. There was no chance that the petitioner would have known about her position as the number one to get the appointment, as of the date of the affidavit that was alleged to be submitted by her and accepted by the government officers.
The judge further highlighted that the information which was known to the selection panel was known to the Sarpanch, who has initiated the ploy to get the petitioner out of consideration for selection.
The Court observed that it cannot lend any legitimacy to this case of fraud. It expressed its displeasure at the connivance of the members of the Selection Committee and the Sarpanch, and that it was corrupt in nature with an intent to deprive the petitioner of her merit-based entitlement.
It stated that the appointment of the other person is null and void and is set aside. It further directed Anti-Corruption Bureau to undertake an enquiry into this matter. It also directed necessary actions to be taken for the appointment of the petitioner.
Madras HC: Hindu Succession Act will not come in way of inheritance by Tribal woman.
Hearing an appeal challenging the orders of the Trial Court, the Madras High Court came to the support of tribal women in their struggle for equal succession rights.
The trial court has earlier invoked the provisions of the Hindu Succession Act and held that the tribal women are also entitled to an equal share in their family property on par with other male coparceners. The High court was also of this view and noted that the Hindu Succession Law does not exclude tribal women from its operation but only intends to positively include the customs.
As per the appeal in the case Saravanan and another vs. Semmayee and others, it was contended that Section 2(2) of the Hindu Succession Act clearly excludes tribal women from the application of the Hindu Succession Act and hence, the trial court has erroneously applied the law.
The respondents of the case argued that since the appellants failed to establish the custom and practice prevailing in the community to which they belong, they would be governed by the Hindu Succession Act.  Hence, the trial court was right in relying upon this law.
The respondents also contended that the tribal women cannot be denied an equal share on par with other female Hindus in the state, as this goes against the non-discrimination enshrined in the Constitution.
The court examined the customs and practices that prevailed in the community, to apply the exclusion clause contained in Section 2(2). The provisions of the Act will come into effect if there is no custom or practice.
It noted that the legislation was not intended for any inequality but only to protect the customs and practices prevailing in the community.
Bombay HC: Finds no prima facie “deceptive similarity” in logos and grants interim relief for certain products
In the case Pidilite Industries vs. Chiripal Industries Ltd, the Bombay High Court held that there is no prima facie deceptive similarity between Fevicol manufacturer Pidilite Industries logo and Chiripal Industries’ logo.
The logo of Pidilite industries has two elephants against the backdrop of a sunset, while Chirpal Industries’ logo contains the word “Tikawoo” with a Rhino against the backdrop of the Sun.
In this case, the plaintiff i.e., Pidilite Industries claimed infringement and passing off with respect to its registered trademarks HEATX, LW+, LW and DR. FIXIT with an image of a man wearing a yellow constriction helmet. Infringement was also regarding the copyright over the aforementioned logo of two elephants with a backdrop of the Sun.
Pidilite claimed that the defendant infringed its trademark and copyrights with the image of a man wearing a construction helmet and also the logo having a rhino with a backdrop of the Sun. It also claimed that the defendant is using the mark HEAT-TIK for an identical product of heat resistant adhesive.
The court noted that while comparing rival marks, the overall impression must be appreciated rather than going into each feature of the marks to ascertain any similarity of difference.
It stated that there is no prima facie case to show deceptive similarity between the words Dr.  Fixit and Mr. Engineer. It noted the same in regard to Pidilite related logo of a man wearing a yellow construction helmet and the respondent’s image of a man wearing a construction helmet.
With respect to other products, it held that there is a deceptive similarity between the terms of the plaintiff’s mark LW and LW+ against the defendant’s mark LWP+. It rejected the defendant’s contention that Pidilite cannot claim monopoly over LW and LW+, as it’s short for ‘Liquid Waterproofing”. It also noted that there is a scope of confusion between the plaintiff’s HEATX and Defendant’s HEAT-TIK. The overall colour scheme used in this mark further increases the confusion.
With respect to the logo of Pidilite and that of Chiripal, the court noted that merely since Sun is shown in the background, it is not a case of deceptive similarity as there is a difference between Pidilite’s logo having two elephants and that of Chiripal having a Rhino.
Supreme Court: Compulsory retirement order can be set aside if it’s found to be punitive & was passed to circumvent disciplinary proceedings.
Supreme Court bench comprising of Justice A.S. Bopanna and Justice Hima Kohli, set aside an order passed by the Central Board of Direct Taxes (CBDT), communicating the order of the President, to compulsorily retire a Gazetted Officer who was being considered for appointment as a Member of Income Tax Appellate Tribunal.
The bench noted that the order of compulsory retirement is unsustainable in law, and it was punitive in nature, passed to circumvent the pending disciplinary proceedings against the concerned Officer.
As per the details of the case, the appellant who was a Permanent Commissioned Officer in the Indian Army (inducted in 1980) was released from the service after suffering a physical disability. He appeared for the Civil Services Examination in 1989 and was appointed to Indian Revenue Service.
He was promoted to the rank of Commissioner, in the Department of Income Tax in 2012. In 2014, he was empanelled for appointment as a Member of the Income Tax Appellate Tribunal (ITAT). His name was forwarded to Appointments Committee in 2015 and was empanelled in 2016 to be appointed as Joint Secretary to the Government of India.
He has an adverse Intelligence Bureau report, which he challenged before Central Administrative Tribunal. The CAT directed the Union government to resubmit that report to the selection committee. The Union government filed an appeal in Allahabad High court against the direction of CAT, which was duly dismissed.
A vigilance inspection was carried out on the vigilance clearance initially granted by the Union government was later withdrawn. The Union government also put his name in the “Agreed List”, which lists out Gazetted Officers of suspect integrity.
The appellant filed an application before CAT challenging the inclusion of his name in the Suspect List, for which an interim order was granted in his favour. The tribunal directed his name to be forwarded to be appointed to ITAT.
The Union government did not comply and challenged the order in High Court and the tribunal. Disciplinary proceedings were issued against him by the Union Government, and he was compulsorily retired in 2019. The union government’s plea not to interfere in this order was challenged before CAT and was dismissed, and so was the case with the petition filed in High Court.
Looking into the details of the case, Supreme Court noted that the Government has the absolute right to retire an employee, if in the public interest. A notice of at least three months is required to be provided to the outgoing employee and the provision of compulsory retirement can be invoked only if the officer has attained 50 years of age. It also noted the limitation of the judicial review with respect to such matters.
In this case, the court noted the earlier track record over a decade, which has been outstanding. There were also no adverse records, and no complaints regarding his character, efficiency, and integrity.
However, the Union Government argued that there were around 9 complaints against the appellant in the Vigilance directorate. The Supreme Court took cognizance of the same but noted that the service record does not reflect the same. It stated that it did not find anything significant on record which would demonstrate a need for him to be compulsorily retired.
In this context, the court considered the allegations raised by the appellant regarding institutional bias and malice against the Union government and in particular Chairman, CBDT.
It noted that the order is punitive in nature and was passed to circumvent the pending disciplinary proceedings against the concerned Officer, to ensure his immediate removal.
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Review: Karnataka HC Rules That Hindu Female Becomes Absolute Owner of Partitioned Property, Cannot Devolve on Siblings.
Sai Krishna Muthyanolla
March 29, 2023
In this week’s review of Court Judgments we look at Delhi High Court upholding the dismissal of a judicial officer, Karnataka High Court’s observation that a Hindu female becomes an absolute owner of the property received after partition, ITAT’s ruling that a husband is entitled to TDS credit on interest earned from amount gifted to his wife, Madras High Court’s note regarding claims relating to forest rights and Supreme Court’s Observation that an accused can’t claim right of hearing before registration of FIR.
Delhi HC: Upholds judicial officer’s dismissal  for accepting favour from stranger.
A divisional bench of the Delhi High Court upheld the dismissal of a judicial officer for allegedly accepting a favour from a stranger. It remarked that a judge is always open to being judged and refused to reduce the penalty of dismissal of service.
In the case, Naveen Arora vs. High Court of Delhi and Anr, a plea was moved by the judge against a Full Court decision and an order issued by the Office of Principal District & Sessions Judge of Dwarka Courts. The petitioner has requested reinstatement along with payment of arrears and other benefits for continuity of service.
As per the details of the case, an inquiry was initiated against the said judge, after some discrepancies were found in his submissions regarding the hotel bookings by an unknown person for his and his family’s foreign travel in 2016.
As per the Inquiry Report dated 28June 2021, a decision was taken by the High Court’s Full Court to dismiss him from service.
In his plea, the petitioner judge stated that there was a confirmation bias against him. He also highlighted that in the initial Article of Charge, the hotel bookings abroad were made by a friend or client of his younger brother and paid for by a stranger. However, in the amended Article of Charge, that name was removed as if to mean that the payment was directly made by the stranger.
Another contention was that there was no mala fide on his part as he has not withheld any information about the payments made by the ‘stranger’ and has also informed that he owed money to the ‘friend/client’ of his brother on account of the hotel bookings done abroad. He has offered money in lieu of bookings done before leaving for a trip abroad but was told that the money would be accepted upon return.
It is alleged that the person who sponsored the trip was a friend/client of the judicial officer’s wife and brother, both of whom are associated with a law firm bring run by the officer’s old collegemate.
The High court bench comprising Justice Manmohan and Justice Saurabh Banerjee, dismissed the petition. They noted that the petitioner judge has initially neither challenged the inquiry proceedings nor raised any doubts about the decision-making process followed by the inquiry officer. Hence, it can be inferred that the judicial officer followed the principles of natural justice at all the stages of inquiry.  The judges also noted that the name of the stranger was not included in the initial list of witnesses filed by the petitioner and was included only after the examination of the witnesses during the cross-examination stage.
The bench noted that the facts reveal that the acceptance of the payment was indeed from a stranger and this is unbecoming of a judicial officer, especially when he is officiating. Further, the bench highlighted that the acceptance from a stranger is admitted but was not reasonably explained, which is sufficient for the petitioner to be held guilty. While acceptance in any form need not always be quid pro quo, the present petition does not inspire confidence.
It further stated that as per Article 226 of the Constitution of India, the court is not a court of appeal nor can it interfere with the findings of the inquiry officer unless they shock the court’s conscience, which is not the case here.
Karnataka HC: Hindu female becomes absolute owner of partitioned property, cannot devolve on siblings.
In the case, Basangouda and Muddangouda & Others, Karnataka High Court held that a female Hindu becomes the absolute owner of the property upon acquiring the property as part of the partition agreed upon by the family and this property cannot be termed as inheritance thereby reverting to siblings after death.
As per the details of the case, Eshwaramma acquired ownership of a property based on the oral partition between her father and brother. This was recorded in a memorandum of partition and registered. After she passed away, her husband filed a suit claiming that since she died childless, he would be the exclusive legal heir of that property.
He submitted that there were some discrepancies regarding the property rights as her brothers continued in the record of rights. He alleged, that the brothers are taking advantage of these hallow entries and are obstructing the peaceful possession of the said land.
The trial court dismissed this suit and the order was upheld by the first appellate court. They held that Section 15(2) of the Hindu Succession Act was attracted in this case and therefore the property allotted under the partition deed would devolve back to her siblings. Hence, he made an appeal to the High court.
The argument put forth by Basangouda was that since the property was acquired by his wife as part of the partition, she has become the absolute owner of the suit, as per Section 15(2) of the Hindu Succession Act.
The single-judge bench agreed with the argument that by registering the memorandum of partition, Eshwaramma and her siblings have given effect to the partition entered between them. It observed that the acquisition of the property by virtue of the Memorandum of Partition by Eshwaramma cannot be construed as inheritance as per Section 15(2) of the Hindu Succession Act. It stated that ‘inheritance’ in this section was used in light of intestate succession i.e. when there is no will.
The court allowed the appeal filed by Basangouda and set aside the orders of the trial and first appellate court.
ITAT: Husband entitled to TDS credit on interest earned from amount gifted to his wife.
The Pune bench of the Income Tax Appellate Tribunal (ITAT) has ruled that the husband is entitled to TDS credit on interest earned on the amount gifted to his wife.
In the case, Anil Ratanlal Bohora Vs ACIT, the tribunal has held that in the cases where the income on which tax has been deducted is accessible to someone other than the deductee,  the credit for the tax deducted shall be given to the other person rather than the deductee.
The assessee in this case filed a return declaring total income. An intimation was issued disallowing the credit for tax deducted at source on interest income. The assessee appealed against the intimation and submitted to the Commissioner of Income-tax (Appeals) (CIT(A)) that he gifted a certain amount to his wife, out of which she made deposits with the State Bank of India. She earned interest income after deducting tax at source.
Since the deposit was made out of the gift made, the assessee included proportionate interest income in his total income and also claimed credit for proportionate tax deducted at source.
CIT(A) found that provisions under Rule 37BA(2) were not followed and thus the assessee was not entitled to the credit for tax deduction at source.
After reviewing the details of the case, ITAT held that merely because the wife of the assessee did furnish a declaration in the bank, the amount of tax deducted at source cannot be allowed to remain with the bank without a corresponding credit to the person for whom the tax was deducted.
Supreme Court: Accused can’t claim right of hearing before registration of FIR
Supreme Court bench comprising Chief Justice of India DY Chandrachud and Justice Hima Kohli, held that an accused cannot claim to have a right of hearing before the registration of an FIR. They stated that the principles of natural justice are not applicable at the stage of reporting a criminal offence.
The bench made this observation in the case, State Bank of India vs. Rajesh Agarwal, while deciding the issue of whether borrowers have the right to be heard before their accounts are classified as fraudulent in terms of RBI’s Master Directions on Frauds.
The argument in this case and other similar cases was that the classification of accounts as fraud will lead to the registration of FIR, resulting in criminal consequences and hence the borrowers have the right to be heard.
Addressing this argument the bench observed that the principles of natural justice are not applicable at the stage of reporting a criminal offence. This is a consistent position adopted by the court.
The bench has, however, held that the borrowers have a right to be heard before their accounts are classified as fraud.
Madras HC: No forest rights merely because ancestors resided in forest, must establish sole dependency on forest.
A single judge bench of Madras High Court has noted that rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006, cannot be claimed merely on the ground that the ancestors originally resided in the forests.
Refusing relief to a group of persons claiming benefit under this Act, Madras High Court stated that for claiming rights, it was necessary to establish that the persons were solely dependent upon the forest for their bona fide livelihood.
As per the details of the case, AC Murugesan and others vs. The District Collector and others, the petitioners have initially challenged the eviction notices issued by claiming that the land was not forest land. However, this was dismissed by the court.
The parties then filed a Special Leve Petition. This was dismissed by the Supreme Court but it gave liberty to the parties to claim rights under the Forest Rights Act.
In the current litigation, the petitioners claimed that they have been in possession of the land for more than 75 years and that the eviction orders were passed merely on the ground that there was no documentation to prove their possession. The contention by the petitioners was that the rights cannot be denied based solely on this ground. Another argument put forth was that their ancestors were uneducated and hence, it was the duty of the official to verify the records before taking a decision.
They also contended that merely because they are living outside the forest area, they cannot be evicted.
Meanwhile, the authorities submitted that there was no evidence for the claims made by the petitioner. Since they cannot prove their existence beyond 75 years, they cannot be considered as ‘Other Traditional Forest Dwellers’.
To be claimed as ‘other traditional forest dwellers’ under this act, it must be proved that at least three generations prior to 13 December 2004, primarily resided in the forest and were dependent on the forest for their bona fide livelihood. Under this Act, a generation implies 25 years.
Bona fide livelihood included ploughing, irrigation, and planting for the purpose of livelihood, but not for commercial exploitation of the land.
The court highlighted that initially, the petitioners have claimed that the land itself was not forest land. It was only later they claimed benefits under the Act. It noted that the petitioners have failed to establish that they primarily depended upon the forest for their livelihood. Since there was no merit in the claim, the court dismissed the petition.


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Review: Karnataka HC Rules That Returning Officers Cannot Search or Seize Any Material Before Declaration of Elections.
Sai Krishna Muthyanolla
April 19, 2023
In this edition of court judgements review, we look at Supreme Court’s judgements on applicability of annual increment for government employees, forfeiting deposit by banks after auction, Madras High Court’s decision on deletion of tweets, Karnataka High Court’s decision on authority of election officials, and Jammu and Kashmir and Ladakh High Court’s decision on disciplinary action on employees.
Supreme Court: Entitlement of annual increment is for the services already rendered subject to good behaviour; cannot be denied merely because they retire the next day after earning the increment.
In The Director (Admn. and HR) KPTCL & Ors. vs. C.P. Mundinamani & Ors., the apex court held that superannuation on the next day of earning increment shall not merely deny the employees of their annual increment, and the employees are entitled to annual increment because of the services already rendered with good conduct.
The two-judge bench comprising of Justice MR Shah and Justice CT Ravikumar was hearing an appeal petition filed by the Karnataka Power Transmission Corporation Limited (KTPCL) against the Karnataka High Court’s judgement that allowed the employees for the entitlement of their annual increment. KTPCL has earlier denied the employees of their annual increment based on the Regulation 40(1) of the Karnataka Electricity Board Employees Service Regulations, 1997 which specified that increment is accrued from the day following its earning, whereas the employees were retired on the next day itself.
The counsel for the appellant argued that increment is an incentive for the employees to perform well in the following year and when no longer in service, there is no point of giving increment. The counsel also brought the divergent views held by various High Courts on similar issues. The question before the consideration of the bench is whether an employee can be denied annual increment merely because of superannuation on the following day.
On the argument that there is no purpose in giving increment when the employee is no longer in service, the apex court rejected the argument by noting that the increment is earned on one year past service rendered in a time scale. On the submission that increment is accrued from the day following its earning, the bench held that the object and purpose of grant of annual increment is required to be considered before deciding on such matters.
Further, the court held that interpreting the Regulation 40(1) in a manner that denies the benefit of annual increment to the government employees would be akin to punishment for no fault of theirs. The increment can be withheld only by way of punishment, or he has not performed the duty efficiently. Any interpretation which would lead to arbitrariness and/or unreasonableness should be avoided.
Accordingly, the bench expressed its agreement with the decision of Karnataka High Court and dismissed the appeal.
Supreme Court: If the bidder wasn’t informed that a challenge was pending against the sale, the bank cannot forfeit the deposit it received after the auction.
The Supreme Court, in Mohd. Shariq vs. Punjab National Bank and Others, held that banks cannot forfeit the deposit paid by the bidder in the auction when he/she was uninformed of the challenge pending against the sale.
The two-judge bench comprising of Justice Ajay Rastogi and Justice Bela M Trivedi, was hearing an appeal against the judgement of division bench of Uttarakhand where the bench reversed the order passed by the single judge which set aside the re-auction proceedings.
The facts of the case are as follows. The borrower took money from the Punjab National Bank, and he later became a defaulter leading to his accounts becoming NPA. The Bank issued notice and took the possession of the property under section 13(4) of the SARFAESI Act, 2002. The borrower approached the Debt Recovery Tribunal (DRT) on this matter and the issue was pending. Meanwhile the bank put up the auction notice and the appellant (in this case, the highest bidder) deposited the deposit amount (25% of the bid amount). However, the DRT held that since auction was held on the same day as of hearing, the bank is at liberty to go ahead with the auction, but confirmation of sale is put in abeyance until further orders.
Upon subsequent communication between the appellants and the bank, the appellant volunteered to pay the rest amount once the matter is decided. However, the bank informed the appellant that the deposit amount shall be forfeited if the rest amount is not paid. The bank-initiated re-auction proceedings against which the appellant approached the High Court.
The High Court asked the Appellant to deposit the balance and the Appellant abided by the same. The Single Judge of High Court set aside the re-auction proceedings and directed the Bank to execute the sale deed in favour of the Appellant. However, in appeal, the Division Bench of the High Court upheld the re-auction and directed the Bank to return the bid amount received from Appellant. Further, with respect to the money, which was forfeited by the Bank, the High Court granted liberty to Appellant to initiate independent proceedings before the competent forum for recovery of the amount.
Upon hearing both sides, the court held that Rule 9(5) of the SARFAESI Rules 2002 applies for a default case, and this instance is not the same. In present case, the appellant was not informed of the pending proceedings before DRT at the time of auction.
Consequently, the bank is directed to return the money within two months failing which it shall carry interest of 12% per annum.
Madras HC: Follower counts, speed of dissemination are to be looked at when considering application for deletion of tweets.
The Madras High Court, in V Senthil Balaji vs. Nirmal Kumar and others  held that while deciding the applications for deletion of defamatory tweets, the number of followers, the speed and frequency with which messages can be disseminated to users of social media platforms and the interactive nature of these platform shall be considered.
The single judge bench headed by Justice Senthil Kumar Ramamoorthy was hearing an application filed by the DMK Minister seeking to restrain the BJP IT Cell head of Tamil Nadu wing from making defamatory allegations against him. The appellant argued that he has been in public life for 25 years and has earned a respectable name in society, thereby seeking relief in respect of the allegedly defamatory tweets and a video, while agreeing that criticism of the public functions of a Minister is necessary and welcome in a constitutional democracy as long as such criticism is not defamatory and malicious.
The court looked at law relating to libel actions on whether a different standard should be adopted while considering libel actions in private and public life.
Regarding the phrase ‘reckless disregard for the truth’, the court relied on the judgement of apex court in R.Rajagopal @ R.R.Gopal and another vs. State of Tamil Nadu and others (Auto Shankar case), and held that the contours of ‘reckless disregard for the truth’ would encompass all defamatory statements made without being concerned as to whether such statements are true or false, such as where such statements were made without any verification. Further, a broad-push approach should not be adopted while deciding on the tweets, individual tweets are to be considered.
Accordingly, the court found few tweets defamatory, and ordered for its removal. It granted interim injunction with respect to defamatory tweets and restrained the respondent from publishing or disseminating information further.
Karnataka HC: Merely because they are appointed as officers for conduct of elections, they cannot search or seize any material before the declaration of elections.
The Karnataka High Court recently held that the Returning Officers or the election officials would not get any jurisdiction to search or seize any material before the announcement of elections. Once the declaration is done, the entire domain is open for them but not until then.
The single judge bench of the High Court headed by Justice M. Naga Prasanna, in Isthiyak Ahmed vs. Election Commission of India & Others, was hearing an application by the petitioner seeking the release of rice bags that were seized from him. The petitioner claimed to be a prominent social worker involved in charitable activities. The Returning Officer visited the petitioner’s place and seized rice bags that were meant for distribution alleging that the material was being held for distribution among the public for favouring his candidature in the ensuing election. However, the rice bags were not released despite the reply by the petitioner to the notice sent by the election officials.
Upon considering the facts of the case, the court held that election schedule was not announced when the search and seizure was made.
Further, since the elections are declared, the court asked the petitioner to furnish an Indemnity bond saying that he shall not violate the code of conduct and satisfy the conditions imposed for the release of bags.
Accordingly, the petition is allowed, and writ of Mandamus is issued to release the rice bags subject to the satisfaction of the conditions imposed.
Jammu and Kashmir and Ladakh HC: ‘Wilful’ absence from duty must be proved by the Disciplinary Authority before deciding on the question of absence from duty.
In Mohd Ashraf Shah vs. Union of India, the Jammu and Kashmir and Ladakh High Court held that mere absence from duty shall not lead to the termination of an employee, the disciplinary authority must prove ‘wilful’ absence.
The bench headed by Justice Wasim Sadaq Nargal was hearing a petition challenging the termination from employment. The petitioner was a CRPF Constable and had suffered from Encephalitis Sequelae (seizure) disorder, due to which he was absent for duty for a period of 39 days. Considering this absence as wilful, the disciplinary authority ordered the termination of the employment. However, the petitioner argued that the absence is due to medical illness and not a wilful absence. The respondents objected to the petitioner saying that as per the medical documents, the petitioner was fit for light duties and was given best available treatment.
Upon hearing both sides, the court looked at whether the punishment rendered is disproportionate to the offence alleged. The court relied on section 9(f), and 10(n) and 10(q) of the Central Reserve Police Force act, 1949. On joint reading with rule 31 of the CRPF Rules, 1955 that outlines the criteria for desertion and absence without leave and on the apex court clarification on the word ‘desertion’ and absence from duty in Krushnakant B Parmar vs. Union of India & Anr. , the High Court held that the punishment is disproportionate to the framed charge and is not warranted by law.
The court further held that the disciplinary authority failed to prove the ‘wilful’ absence of the employee. The disciplinary authority showed non-application of mind in reaching conclusion on the absence from duty, despite the sufficient evidence presented before him. The Court alleged the abuse of principles of natural justice on the part of the disciplinary authority.
On the question whether relief of reinstatement with continuity in service can be granted when the removal is found to be invalid, the High Court relied on the apex court judgement in  Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya and Ors, which held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
Accordingly, the High Court set aside the termination and reinstated the petitioner.


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Review: Karnataka HC Says That Nominal Punishments for Negligent Driving Will Encourage Offenders - FACTLY
Sai Krishna Muthyanolla
May 15, 2024
In this edition of Court Judgements, we look at the Delhi HC’s comments that ‘Virtual touch’ education should also be included along with ‘good touch’ and ‘bad touch’ education for minors, SC’s order that elected members of municipality council cannot be removed at the whims and fancies of the civil servants or their political masters, Karnataka HC’s comments that nominal punishments for negligent driving will encourage offenders, and SC’s ruling that conviction should not be overturned solely because a prosecution witness became hostile, among others.
Delhi HC: ‘Virtual touch’ education should also be included along with ‘good touch’ and ‘bad touch’ education for minors
The bail applicant in Kamlesh Devi vs. State of Delhi was accused of helping the main accused, her son, in kidnapping and committing a sexual assault upon a 16-year-old girl and forcing her into prostitution. The 16-year-old girl was kidnapped by a person whom she met on a social media application and was kept in a room in Madhya Pradesh and was sexually assaulted for around 20-25 days, according to the FIR. She was also married off to another co-accused in return for money.
The Delhi High Court bench of Justice Swarna Kantha Sharma while dismissing the plea, noted the challenges posed by the modern virtual world, where virtual interactions among teenagers could lead to unforeseen dangers such as human trafficking for prostitution and other criminal activities prevalent in cyberspace. The bench also added that traditionally, minors were taught ‘good touch’ and ‘bad touch’ in the physical realm but now ‘virtual touch’ education is vital, covering online behaviour, recognizing predators, and privacy protection. Further, parents, guardians, and educators play key roles in promoting digital literacy and safe online conduct and empowering children to make informed decisions and protect themselves from online threats. It also called to integrate ‘virtual touch’ education alongside traditional safety teachings in educational programs by schools, colleges, and legal authorities, ensuring minors are equipped to navigate cyberspace safely.
SC: Elected members of municipality council cannot be removed at the whims and fancies of the civil servants or their political masters
Two cases, Makarand alias Nandu vs. State of Maharashtra and Nitin vs. State of Maharashtra challenging the Bombay High Court’s orders were heard together by the Supreme Court despite separate factual backgrounds, as they were connected by a common issue: the Urban Development Minister’s authority in disqualifying elected Municipal Councillors/Office Bearers. Both the appellants were debarred from contesting in the Municipality elections for six years, with one case involving illegal construction and the other favouring a tender over the lowest bidder. The Bombay High Court had refused to interfere with the Maharashtra Government’s orders.
The Supreme Court bench of Justices Surya Kant and PS Narasimha observed that in both cases, the allegations of misconduct were not backed by strong evidence and that the action taken was unfair, unjust, and founded upon irrelevant considerations.
The bench stated that the elected members cannot be removed at the whims and fancies of the civil servants or their political masters only because some such elected members are found to be inconvenient within the system. Further, it noted that public officeholders like Municipal Council members deserve respect and autonomy in their duties, within the limits set by law. Misconduct by an elected member typically pertains to actions taken after assuming office, although pre-election misconduct may also be considered if directly linked to the representative and not previously scrutinized during nomination. In the first case, the Court found the action against the appellant unjustified and beyond permissible jurisdiction. Similarly, in the second case, the Bench noted that the action taken was a ploy to remove the member. Observing this, the Court quashed the orders and allowed the appeals. It also quashed the disqualification and debarment orders of the Minister-in-Charge.
Karnataka HC: Nominal punishments for negligent driving will encourage offenders
In the case, Santosh Poojari vs. the State by Mudigere Police, the accused was an ambulance driver. Due to his rash and negligent driving, he crashed into a car, the driver of which succumbed to grievous injuries resulting from the collision’s impact. Three others were also injured in the incident that took place back in 2011. Upon investigation, the Trial Court punished the ambulance driver with a fine and imprisonment for six months. Dissatisfied with the conviction order, the accused appealed to the Karnataka High Court.
The Karnataka High Court Bench of Justice Umesh M Adiga stated that there was no reason to interfere with the Trial Court’s order. It noted that the accident was considered one without any intention because of which severe punishment was not prescribed. It added that if the courts impose nominal punishments for such offences, it encourages offenders like the accused to commit more such offences instead of deterring them. The appellant’s request to reduce the punishment to only a fine was dismissed. Considering the gravity of the offence, the court held that the benefit of The Probation of Offenders Act, 1958 was not applicable in this case. The revision petition was dismissed.
Kerala HC: Denying a rape victim the right to terminate her unwanted pregnancy would force her into motherhood against her will
In the case XXX vs. Union of India, a 16-year-old girl rape victim approached the court through her mother seeking termination of her pregnancy. According to her, she was sexually abused by her 19-year-old lover and became pregnant. When appearing before the court, she was 28 weeks pregnant.
Justice Kauser Edappagath of the Kerala High Court reviewed the evolution of abortion laws in India, highlighting that until the 1960s, abortion was prohibited. It acknowledged the enactment of the Medical Termination of Pregnancy Act (MTP) in 1971, which legalized safe abortions based on recommendations from the Shantilal Shah Committee. Furthermore, the Court noted amendments to the Act in 2021, extending the permissible period for abortions to 24 weeks from the previous 20 weeks. This extension applies to specific categories of women, including survivors of rape, incest, minors, women undergoing changes in marital status (widowhood or divorce), women with disabilities, those facing foetal anomalies, and individuals residing in emergency, disaster, or humanitarian situations.
He stated that the right of a woman or a girl to make autonomous decisions about her own body and reproductive functions is at the very core of her fundamental right to equality and privacy. He added that reproductive rights include the right to choose whether and when to have children, the right to choose the number of children and the right to access safe and legal abortions. In this case, he noted that courts had the power to permit abortions after 24 weeks, going beyond the MTP Act’s limit, under Article 226’s broader powers.
The court observed that unplanned pregnancies resulting from sexual abuse are harmful, causing trauma to both the physical and mental well-being of the victim. These pregnancies are not chosen or planned, adding to the distress of the sexual assault itself. Stating that denying a rape victim the right to terminate her unwanted pregnancy would force her into motherhood against her will, infringing upon her human right to live with dignity as guaranteed under Article 21 of the Constitution, the court allowed the petitioner to terminate her pregnancy.
SC: Conviction should not be overturned solely because a prosecution witness became hostile
The case, Selvamani vs. the State represented by the Inspector of Police, stemmed from an incident where the victim, an employee at a shoe company, was gang-raped by the accused persons. The trial court convicted the accused based on the victim’s testimony, medical evidence, and other witnesses. They were found guilty under various sections of the Indian Penal Code and the Tamil Nadu Prevention of Women Harassment Act. They were sentenced to rigorous imprisonment and fines for these offences.
They filed different appeals in the Madras High Court arguing that during cross-examination, some witnesses turned hostile. The defence contended that this inconsistency weakened the prosecution’s case. The appellant added that the victim and her family did not fully support the prosecution’s version during cross-examination. However, the High Court, after reviewing the case and considering the arguments presented, upheld the trial court’s decision. They then filed an appeal before the Supreme Court.
The Supreme Court Bench of Justices BR Gavai and Sandeep Mehta, after careful scrutiny, upheld the lower court’s decision. Despite some witnesses turning hostile, the court found sufficient evidence, including the victim’s initial statement, medical reports, and corroborative testimonies, to support the prosecution’s case. The court highlighted the importance of not dismissing evidence based solely on witness hostility, emphasizing the need for a thorough examination of all available evidence. Consequently, the appeal was dismissed, affirming the conviction of the accused by the Trial Court, and upheld by the High Court.