Fortnightly Newsletter- May 31, 2018

May 31, 2018

SUPREME COURT JUDGMENTS

SC: NDPS Act- To Search Accused before Gazetted Officer/ Magistrate is Mandatory Requirement

Case name: Arif Khan v. State of Uttarakhand

In a recent case, the Supreme Court reiterated the settled position of law that Section 50 of NDPS Act (Narcotic Drugs and Psychotropic Substances Act, 1985) is a mandatory provision. Here it would be relevant to mention that Section 50 of NDPS Act enumerates the conditions under which search of person shall be conducted.

That the true scope and object of Section 50 of NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 of NDPS Act and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of the Supreme Court in the case of State of Punjab vs. Baldev Singh. In this case, it was held that the requirements of Section 50 of NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with.

Read more here.

SC: Don’t Entertain Petitions against RBI’s Circular Barring Investment in Virtual Currencies

In a case (Siddarth Dalmia & anr. v. Union of India & Ors.) recently taken up by Three-Judge Bench of Supreme Court headed by the Chief Justice Dipak Misra, the Apex Court has directed the High Court not to entertain any petition relating to Reserve Bank of India’s Circular on “Prohibition on Dealing in Virtual Currencies” dated April 06, 2018.

The RBI’s Circular can be accessed here.

Here it would be pertinent to mention that the RBI in the Circular prohibited the entities regulated by the RBI to not deal in Virtual Currencies including Bitcoins or provide services for facilitating any person or entity in dealing with or settling VCs like maintaining accounts, registering, trading, settling, clearing, giving loans against virtual tokens, accepting them as collateral, opening accounts of exchanges dealing with them and transfer / receipt of money in accounts relating to purchase/ sale of VCs.

Thus, the Apex Court has now barred the High Courts from entertaining any such petition against the impugned Circular.

Read more here.

SC: Courts can Decide any Issue Except those Falling u/S 24(2) of Land Acquisition Act

In a recent order passed by Two-Judge Bench of the Supreme Court in the case of Anita Mittal v. State of Rajasthan, the Court allowed the High Court to decide on any issues pertaining to land acquisition cases except those falling under Section 24(2) of the Land Acquisition Act 1894.

The Apex Court held as under:

However, it is made clear that it is open to the High Court to decide any issue except the applicability of Section 24(2) of the Land Acquisition Act which is pending consideration before the Constitution Bench of this Court in Indore Development Authority and Ors. Etc. v. Manoharlal and Ors. Etc., in SLP(C)No.9036-9038 of 2016 and connected matters Pending applications, if any, shall also stand disposed of.

Also read Important Judgments on Lapse of Land Acquisition under 2013 Act

Here it would be germane to mention that in the case of Indore Development Authority and Ors. Etc. v. Manoharlal and Ors. delivered by the Apex Court in February this year, the Court stated that land acquisition would be deemed to have lapsed and would be covered under the The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act) entitling the land owners to higher compensation if compensation for land acquired under the Land Acquisition Act 1894 has not been paid to the land owner.

Read more here.

SC Slaps Fine of 1 Lac Each on Google, Facebook and WhatsApp

In the case, the Apex Court had taken suo-motu cognizance of a letter addressed to Chief Justice of India by Prajwala, an organization.

The letter narrated about two videos which showcased incidents of rape and gang rape of young girl and woman, the incidents were video recorded and were disseminated through WhatsApp. Thus, apprising the Supreme Court of such heinous crimes, the organization prayed the Chief Justice to adopt mechanism that would curb such incidents particularly recording and then distributing such video recordings.

In view of the aforesaid, the Supreme Court constituted a Committee to advise the Court on the feasibility of ensuring that videos depicting rape, gang rape and child pornography are not available for circulation and to protect the identity and reputation of the victims and also because circulation of such videos cannot be in public interest at all. Accordingly the Committee prepared a comprehensive report entailing the recommendations.

The Apex Court had thus directed the parties including Yahoo, Facebook Ireland, Facebook India, Google India, Google Inc., Microsoft and WhatsApp to submit status of progress made pursuant to the recommendations accepted by these entities as mentioned in the Report of the Committee.

The Court however noted that inspite of their order on April 16, the entities had not filed anything to show the progress nor were they ready with any response. The Supreme Court has now directed the entities to file an affidavit before 15th June, 2018 reporting of the status of the progress made. Additionally, the Apex Court has directed that the Registry will accept the affidavit filed by these entities along with costs of Rs.1 lac each

The matter has been now listed for hearing on July 2, 2018.

Read more here.

SC: Stopping Salary by Employer doesn’t Attract Offence of Abetment of Suicide

Case name: Vaijnath Kondiba Khandke v. State of Maharashtra and Another

In this case, the Supreme Court held that as a superior officer, if some work was assigned by the applicant to the deceased, merely on that count it cannot be said that there was any guilty mind or criminal intent. The exigencies of work and the situation may call for certain action on part of a superior including stopping of salary of a junior officer for a month. That action simplicitor cannot be considered to be a pointer against such superior officer.

Read more here.

SC on Whether Non-Maintenance of General Diary renders Proceedings Illegal?

Case name: State by Lokayuktha Police v. H. Srinivas 

The main contention in the case raised by the respondents was that that the preliminary enquiry and the consequent Source Report filed by the Officer were done without entering the same in the General Diary, which according to them was mandatory and non­compliance of the same resulted in vitiating the entire proceeding.

Section 44 of the Police Act provides that it shall be the duty of every officer in charge of a police- station to keep a general diary to record therein all complaints and charges preferred, the names of all persons arrested, the names of the complainants, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined. 

Hence, the Apex Court in the case was seminally concerned with the issue whether the absence of entries in the General Diary concerning the preliminary enquiry would render the proceedings illegal?

The Supreme Court while answering in the negative, relied on the precedent set in the case of Lalit Kumari v. Govt. of U.P.[1]In the Lalitha Kumari case, the Apex Court while recognizing the mandatory registration of FIR noted that while ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time­bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

Read more here.

SC: No Temporary Permit for Private Carriers in Notified Route u/Scheme

Case name: Kerala State Road Transport Corporation vs. Baby P.P. & Ors.

In the case, the Supreme Court with Scheme formulated by the State Transport Undertaking under Section 100(3) of the Motor Vehicle Act. The Supreme Court reiterated that such a Scheme is a law by itself. While elaborating on the power of the State Government to formulate Scheme in public interest, the Supreme Court held that temporary permits could not be granted to private stage carriers in notified route.

Read more here.

HIGH COURT JUDGMENTS

Allahabad HC: Divorce Decree by Consent is Appealable

In a recent case decided by the High Court of Allahabad has opined that where the consent itself is disputed and is not said to be genuine the same can be assailed by way of appeal.

Read more here.

Patna HC: Application for Pre-arrest Bail not Maintainable in case of Bailable Offence

In a recent case (Rajeev Nayan Singh v. State of Bihar), the High Court of Patna took a strong note on the prevalent practice of filing application for pre-arrest bail under Section 438 of CrPC (discretion for granting bail to person apprehending arrest) in cases where the FIR has been registered only for bailable offences. While condemning such acts by Advocates and Lower Courts in disposing bail cases, the High Court made the following observations in the case:

Also read All you Need to Know about Bail Application in India

The Court opined that the the right to claim bail granted by Section 436 of the Cr. P.C. in a “bailable offence” is an absolute and indefeasible right. In such case, there is no question of discretion in granting bail as the words of Section 436 are imperative. Thus, there is no question of discretion in such matters. With reference to the facts of the case at hand wherein FIR had been registered against the accused only for bailable offences, the Court stated that instead of appearing before the court of Magistrate and seeking bail under Section 436 of the Cr. P.C., the lawyer conducting the case in the court below filed an application under Section 438 of the Cr. P.C. seeking pre-arrest bail.

That from reading of Section 438(1) of the Cr. P.C., it would appear that there must be an accusation against the person concerned of having committed non-bailable offences for which he has reason to believe of getting arrested. Only on such condition precedent, he may approach either the High Court or the Court of Session for a direction that he may be released on bail in the event of such arrest.

That it is not expected from an advocate that he would suggest his client to file pre-arrest bail application in a case instituted only for bailable offences. The lawyer appearing for the State is also not expected to oppose the application mechanically. He also has a duty to assist the Court in arriving at a just decision in a case.

Read more here.

Registering Authority can’t cancel Registration once Sale Deed is registered

Case name: Smt. Kusum Lata v. State of U.P. & ors.

The seminal issue that fell for consideration before the Allahabad High Court in the case was whether a sale deed registered under the Registration Act, 1908 can be cancelled or set aside by registering authority or by any other authority invoking administrative powers, if the registration is questioned on the count of impersonation/fraud? 

Bench’s Verdict

The Three-Judge Bench of the Allahabad High Court while arriving at its decision made reference to Section 69 of the Registration Act, 1908 which entrusts the power on Inspector General to make rules consistent with the Act and pertaining to regulation of registration of instruments and documents in the State.

As the Uttar Pradesh Government has not framed any rules under Section 69 for annulment of document, the Allahabad High Court held that Registering Authority cannot annul sale deed and made the following observations in the case:

  • That  unless and until there is an express provision in the Act or in the Rules, no Government Order could be issued giving power to a Registering Authority to annul a document on the administrative side. Such powers given would be wholly arbitrary and against and against the provisions of the Act.
  • That the State Government cannot, while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order.
  • That the language of Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. Where a particular subject is regulated by a legislative enactment, the field is said to be covered by such statute. In such matters and on such subjects the executive powers is circumscribed.
  • That the executive exercising powers under Article 162 cannot issue orders which contravene provisions of a statute or are inconsistent with the same.
  • The State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed.
  • So long as the Rules are not framed as enumerated under Section 69 of the Registration Act, a document cannot be annulled on the basis of the Government Order issued under Article 162 of the Constitution.
  • If the document registered by the registering authority was illegal or if there was any irregularity then the course to question that was by invoking appropriate proceedings before a Civil Court.

In view of the aforesaid observations, the Allahabad High Court held that once a sale deed has been registered, the registering authority does not have any power or authority under the Registration Act, 1908 to cancel the registration, even if an allegation of impersonation/fraud is alleged.

Read more here.

Madhya Pradesh HC: Court Says Wife Entitled to know Husband’s Salary

In a recent case, the High Court of Madhya Pradesh addressed an intriguing concern, whereby the Court stated that irrespective of exemption of information under Section 8 of RTI Act, a wife is entitled to know the details of salary of her husband. In the case the wife was claiming maintenance from the husband wherein the quantum of maintenance being awarded to the wife was disputable on account of amount of maintenance being paid to the wife.

Thus, the issue that fell for consideration by the High Court was whether the information sought is exempt under Section 8(1)(j) of the RTI Act  or it is covered by Section 4(1)(b)(x) which obliges the public authorities to display on public domain the monthly remuneration received by each of its officers and employees?

The Division Bench of Madhya Pradesh High Court while making an order in the favour of wife opined that while dealing with the Section 8(1)(j) of the RTI Act , we cannot lose sight of the fact that the appellant and the respondent No.1 are husband and wife and as a wife she is entitled to know what remuneration the respondent No.1 is getting.

Read more here.

Bombay HC Imposes Fine of Rs 50,000 on CBI for Arresting Woman after Sunset

Case name: Kavita Manikikar v. Central Bureau of Investigation, Mumbai

In a recent case, the Two-Judge Bench of the Bombay High Court took strong note of conduct of CBI Officers in arresting woman after sunset i.e. in violation of Section 46 (4) of the Code of Criminal Procedure which mandates that except in exceptional circumstances a woman shall not be arrested after sunset and before sunrise.

What are the Rights of an Arrested Person?

In the case, the Petitioner who was arrested by the CBI at 8.00 PM approached the Court seeking a declaration that her arrest was contrary to Section 46 (4) of the Code of Criminal Procedure. The petitioner also prayed for a direction to initiate inquiry against the Officers who arrested her in violation of the statutory provision.

Read more here.

Delhi HC Issues Guidelines for Recording Undertaking in Divorce by Mutual Consent Cases

In this recent judgment passed by the Delhi High Court, the Court was confronted with a batch of contempt petitions, alleging inter alia willful disobedience of the undertaking given by a spouse to appear, sign and file, both, the Section 13B(1) petition and the Section 13(B)(2) motion under the Hindu Marriage Act, 1955 (HMA).

The Delhi High Court in the case took the opportunity to issue guidelines pertaining to recording undertaking/ agreement in mutual consent cases.

Read more here.