Category Archives: Blog

This was decided in the case of Avik Ghatak and Ors. vs. State Legal Services Authority [CRA 26 OF 2021] by Thottathil B. Radhakrishnan and Justice Aniruddha Roy in the High Court of Calcutta.

This judgement has come in a criminal appeal filed by one Ganesh Das, who was convicted for offences punishable under Section 376(3) of IPC and Section 6 of the POCSO Act by the Trial Court, and was sentenced to undergo rigorous imprisonment for 20 years. This appeal was however opposed by the State, after noting that it is defective as the victim has not been made party.

The bench of High Court had thus framed the following issues for consideration

(1) Is the victim a necessary party to an appeal, under Section 374 of CrPC, from conviction?

(2)If the answers to these two questions are in the negative, what is the procedure to be adopted?

(3)Would such an appeal be defective in the absence of impleading

The bench made it clear that the legal rights, eligibility and interest of a victim, in the course of an appeal against conviction, would stand satisfied This approach, the Court said, shall synchronize the opportunity to contest the appeal with victim’s right to privacy and protection of identity. 

It shall be noted that reliance was placed on Nipun Saxena & Anr. v. Union of India & Ors. (2019) 2 SCC 703 wherein it was held that “The victim is not a necessary party to a Criminal Appeal from conviction for offences against woman or child, punishable under provisions of the I.P.”

The Bench further noted that contents of Section 374 and Section 385 of CrPC taken together will show that issuance of notice of the hearing of the appeal is from a judgment of conviction in a case instituted upon complaint. Trial, conviction and sentence are matters primarily between the accused person and the State. The statutory provisions for institution of the appeal. 

No such appeal would be defective in the absence of pleading of the victim. The procedure to be adopted in all such appeals would be to deal with those appeals without insisting on the pleading by the victim. In cases where over and above the assistance of the Public Prosecutor representing the State, the appellate court deems it necessary to provide further assistance to to secure the interest of the victim through legal aid, the HCLSC or the DLSA concerned may be required to provide assistance through an empanelled or other advocate as may be decided by the HCLSC or the DLSA concerned. However, even in such cases, it shall be insisted by the Court that t principles relating to protection of dignity and privacy and modality of ensuring those values, as delineated above, are scrupulously adhered to.

Accordingly, the Bench has ordered that  the victim is not a necessary party to a Criminal Appeal from conviction for offences against woman or child, punishable under provisions of the I.P.C. or POCSO Act or any other penal provision which will apply in relation to offences affecting human body against any “woman” and/or “child”, both those expressions being understood in the context of the respective legislation which deals with such offences.

Click here for full judgement

A women can seek divorce by extra judicial means and the law that exists in this regard prohibiting women to do so in bad law. This was decided in the case of a bunch of writ petitions with Mat.Appeal.No.89 of 2020 by the Hon’ble Justice C.S Dias and Hon’ble Justice Muhamed Mustaque in the High Court of Kerala.

The Court’s judgment comes in the context of a clutch of petitions filed before it by aggrieved partners in marriages where extra-judicial modes of dissolution had been resorted to. The judgement in KC Moyin v. Nafeesa , the High Court had declared that a woman could only resort to remedies under the Dissolution of Muslim Marriages Act and could not invoke remedies under personal law (extra-judicial remedies). these judgement seeks to undo the ratio led in that case.

Finding that the governing law, The Dissolution of Muslim Marriages Act did not contemplate the undoing of the modes of extra-judicial divorce available to women under personal law, the two judge bench held that “All other forms of extra-judicial divorce as referred in Section 2 of the Shariat Act are thus available to a Muslim women. We, therefore, hold that the law declared in K.C.Moyin’s case (supra) is not good law.”

In the judgment, the Court discussed the various modes of dissolution of marriage at length. Prior to its ruling, the Bench first discusses the mode of dissolution in Muslim personal law generally and then proceeds to discuss the modes specifically available to women. The modes available to women, the Court explains is, – (1) Talaq-e-tafwiz, where the wife can dissolve the marriage if her husband fails to keep his end of the marriage contract. (2) Khula, where a wife can unilaterally divorce her husband by returning his dower, (3) Mubara’at, dissolution by mutual consent, and Faskh, dissolution with the intervention of a third person such as a qazi.

The Court noted that the previous legislation governing Muslim marriages and other practices, The Shariat Act of 1937, specifically recognized all modes of extra-judicial divorce except Faskh.

It was further observed by the court “The issue involved in as above is inextricably connected to ultimate justice which women involved in all these cases seek. These cases speak in abundance abut the partriarchial mind-set followed in the society for decades depriving Muslim women their right to invoke extra-judicial divorce. While the was a huge clamour to retain the practice of ‘triple talaq’, an un-Islamic practice, no such open and apparent demand seems to exist to restore the right of Muslim women to invoke extra-judicial divorce. The obove sketch miseries of women despite the promise guaranteed under Article 14 of the Constitution of India.”

It was stated by the bench that on an overall analysis of the scheme of the Shariat Act as well as the Dissolution of Muslim Marriages Act as above, we are of the considered view that the Dissolution of Muslim Marriages Act restrict Muslim women to annul their marriage invoking Faskh except through the intervention of the Court.

Click here for full judgement

Right For A Safe Road To Every Citizen Is A Facet Of Articles 19(1)(d) And 21 of the Constitution: This was said in the case of CA Xavier v. Chief Secretary and Ors [WRIT PETN NO.9670 of 2018] by the Chief Justice Mr. S. Manikumar and Justice Shaji P. Chaly in Kerala High Court.

Public Interest Litigations were filed by former panchayat president, lawyer, a man who lost his son to a motor accident, an NGO, a politician, and two retired Motor Vehicles Department officials on account of non-implementation of the provisions of the Motor Vehicles Act, 2007 and seeking other consequential reliefs. It sought for directions from the State and Central Governments to take steps to stem the rise in road accidents in the State.

The petitioners gave their submissions through various documents showing non-implementation of provisions of the Motor Vehicles Act 1988, Road Safety Act 2007, failure to utilize the funds specifically allotted for road safety. As a response to this, the State Government and other respondents filed a counter-affidavit.

The Court after examining the material produced by the State Government found that “the counter affidavit filed by the State Government, the State Government has virtually admitted that Sri. P.D Sunil Babu was appointed by the Government to prepare a detailed project report to reduce the accidents in Kerala. However, even though the Road Safety Authority considered the report and forwarded the proposal contained there under to the Government through the Motor Vehicle Department, so far, the same is not finalized by the State Government.”

From the provisions of the Report, the Court instructed the State to implement the same, in its letter and spirit, in the larger interest of the public, without any further delay by providing adequate and due support to the authority under the Road Safety Act, 2007.

Additionally, the Court exhorted the Road Safety Authority to achieve its roles in the manner envisaged in the Road Safety Act. It also pressed the Road Safety Authority to ensure it was receiving funds from the State’s consolidated fund.

Furthermore, the court stated that “Before parting with the judgment, we think it deems and appropriate to state that if the objectives of the Road Safety Act, 2007 are to be achieved and attained, the functionaries under the Road Safety Act, 2007, other road safety authorities and others functioning under other enactments and the Central and State Governments shall function like a well oiled machine. The observations and the directions are made by us also bearing in mind that the right for a safe road to every citizen is a facet of Articles 19 (1) (d) and 21 of the Constitution of India and thus all authorities are duty bound to discharge them without fail. We hope that such authorities and the Governments would rise to the occasion and do the needful in the larger interest of the public and remove all obstacles causing threat and danger to the road safety at the earliest possible time and as specified above.” Hence, the writ petition was allowed.

Click here for judgment

The purpose of the Police is not to reform, or to rehabilitate, but to prevent the occurrence of crime, and to punish the criminals. Therefore, the very training of police personnel is carried out with a different purpose in mind, and with different goals prescribed by law. The judgment was passed by The High Court of Uttarakhand in the case of Sanjeev Kumar Akash vs the State of Uttarakhand and others [Writ Petition (PIL) No. 25 of 2021] by a single bench consisting of Justice Sri Raghvendra Singh Chauhan.

The facts of the case are that, out of the nine sanctioned posts of Superintendent of Jail, four posts are to be filled up by way of direct recruitment, and five posts are to be filled up by way of promotion from the post of Jailor. Presently, one post of Senior Superintendent of Jail, and four posts of Superintendent of Jail, have been filled up. According to the State Government, considering the difficulties faced in running the Jails properly, it has taken a conscious decision to give additional charge to the Senior Superintendent of Jail. Hence, the present Public Interest Litigation before this Court.

Learned Senior Counsel for the Petitioner that the duty of the Police Officers is preventive and penal, and spans the arena of investigation, prevention and protection, and maintenance of law and order. On the other hand, with the emerging modern trends in penology and theories of punishment, the fundamental duty of the Officers of the Department of Jail is the protection, the reformation, and the rehabilitation of the prisoners. Thus, the very philosophy behind the interaction between a Police Officer and an offender, and the interaction between a Jail Officer and the prisoner, stand on a different footing. Therefore, one cannot be confused with the other.

Learned counsel on the corollary the fact that presently there are two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail, which is lying vacant, considering the fact that direct recruitment to these posts would require some time, considering the fact that there is no one in the post of Jailors, who has completed five years of required service for being promoted to the post of Senior Superintendent of Jail, the State is justified in making Police Officers in charge of these two posts on a temporary basis.

The Court while referring to the Uttar Pradesh Jail Service Rules, 1982, “the post of Superintendent of District Jail is to be filled up fifty per cent by direct recruitment, and fifty per cent by promotion from amongst the regularly appointed Deputy Superintendents/Jailors with a minimum of five years’ service as Deputy Superintendents, or Jailors or both. Moreover, Rule 14 deals with the determination of vacancies. Rule 15 deals with the procedure for direct recruitment. Rule 16 deals with the “procedure for recruitment by promotion to the post of Superintendent, District Jail.”

While allowing the petition, the Bench has taken note of the United Nations has issued “Standard Minimum Rules for the Treatment of Prisoners, better known as the Nelson Mandela Rules. These Rules, inter alia, provide for careful selection of every grade of the personnel; integrity, humanity, professional capacity, and personal suitability for the work that the proper administration of prisons depends; appointment of prison personnel on a full-time basis; It specifically referred to Rule 75(2) which states that before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences.” Since India is a member of the United Nations, these Rules are equally binding on the country and they cannot be ignored, observed the Court.

Click here for the Judgment

The NCLAT has absolutely no jurisdiction over this Court, even on its Original Side, given that this is a Chartered High Court. The High Court is in no way subject to the NCLAT’s jurisdiction or superintendence. But if we leave that aside and focus on the words ‘arbitration panel and arbitration authority’, and even assuming for a moment that the NCLAT has the power to stay arbitrations, it certainly does not have the authority to stay in the hands of this Court. The judgment was passed by The High Court of Bombay in the case of Bay Capital v. IL&FS Financial Services Ltd. & Ors. By single bench consisting of JUSTICE G.S. PATEL.

The Petition was filed under Section 9 of the Arbitration and Conciliation Act 1996, seeks interim protection pending arbitration to restrain the Respondent, (IL&FS Ltd) from acting on its Event of the Default notice, and seeks for a temporary injunction restraining IFIN from acting in furtherance of a pledge invocation notice,

The counsel arguing for Bay Capital argued that NCLAT is neither a tribunal, a judicial authority nor a constitutional court empowered to issue high prerogative remedy. Relying upon Section 242 of the Companies Act (powers of the tribunal), he argued that the Act does not give NCLAT a power of superintendence over other courts, specifically over courts that are neither subordinate to the NCLAT nor subject to its superintendence.

The counsel on the corollary submitted that an order of this kind may be made by the Supreme Court, or by the High Court in regard to Courts over which the High Court has judicial superintendence, but certainly not the NCLAT.

The Court Observed that NCLAT has no jurisdiction over the Bombay High Court even on its original side (as it was a chartered High Court) Justice Patel concluded that the High Court does not fall within the NCLAT’s jurisdiction or superintendence. “I do not see how the words ‘court of law’ can be ‘read down’, because other than the NCLT, there is no other judicial authority over which the NCLAT exercises such superintending power.”

While dismissing the petition Justice Patel further reasoned that NCLAT cannot pass orders under Section 9 and other such Sections under the Arbitration Act which as per the statute fall before the High Court itself. Neither are the provisions of the Arbitration Act specifically subjected to the provisions of the Companies Act, the Court observed. “Even assuming for a moment that the NCLAT has the power to stay arbitrations, it certainly does not have the authority to stay the hands of this Court in hearing a petition under Section 9 or any other petition that properly comes before this Court under the Arbitration and Conciliation Act 1996.”

Click here for the Judgment