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The Constitution (127th Amendment) Bill, 2021

The court also observed that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ peti tions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.

Facts: Petitioner, asserting himself to be the father of corpus(child), filed a habeas corpus petition alleging that the corpus is under illegal custody of the mother and praying for the custody of the child.

Held: The custody of the child with his mother is not unlawful. It would only be in an exceptional situation that the custody of a minor may be directed to be taken away from the mother for being given to any other person-including father of the child, in exercise of writ jurisdiction. The father, can take resort to the substantive statutory remedy in respect of his claim regarding custody of the child.

Facts: The applicant filed an application u/s 482 Cr.P.C. seeking quashing of the criminal proceedings, principal ground being that the order passed by the Magistrate taking cognizance is without application of mind and has been passed mechanically without assigning any detailed reasons.
Question: whether detailed and elaborate reasons are required to be recorded at the stage of taking cognizance or issuing of process?
Held- In the absence of any legal requirement for the Magistrate to have given detailed reasons in an order taking cognizance and issuing process the same cannot be held to be vitiated only on the ground that the order is not a reasoned order.

Brief Facts: In the present case, the applicant approached the Allahabad Highcourt u/s 482 CrPC with the prayer for quashing the impugned FIR which was lodged by his wife against him due to some trivial issues. By the order of the court, the matter was referred to Mediation and Conciliation Centre, Allahabad Highcourt, The mediation was successfully concluded and wife join her matrimonial home with her husband. In view of the agreement between the parties, the aforesaid relief was pressed before the court.
Question: Whether the Highcourt, under section 482 CrPC, has powers to interfere with the FIR wherein the investigation is pending?
Held: The court held that in light of the Supreme court's judgment in State of Haryana and Others vs. Bhajan Lal and Others (1992) Supp 1 SCC 335, the First Information Report can be quashed either under Section 482 Cr.P.C. or under Article 226 of the Constitution.

The Division Bench of the Allahabad Highcourt, in a matter pertaining question of maintainability of Writ petition with regard to enforcement of contractual obligation against the state, held that there is no absolute bar to the maintainability of a writ petition in such matters. The court while allowing the writ petition held that a case where the amount is admitted and there is no disputed question of fact requiring adjudication of detailed evidence and interpretation of the terms of the contract, the writ petition would be maintainable.

The Allahabad High court on Monday issued bailable warrants for the arrest of Director of education (Basic) Sarvendra Vikram Bahadur Singh and Additional Chief Secretary(Basic), Deepak Kumar and directed them to appear on December 20, 2021.

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The Bar Council of India, on Friday, addressed a letter to the Supreme Court in order to explain the current conditions of the Advocates and Judges while seeking directions to reduce the affects of extreme Covid Second Wave on Advocates, Judges, their Staff and Family Members.

The letter begins with describing how the pandemic's second wave have taken a toll on the legal fraternity. It mentions how pandemic has taken away lives of eminent and brilliant Advocates and Judges from Supreme Court to Trial Courts and both Bar and Bench are pained by this huge loss to not only society but administration of justice as a whole.

To explain the gravity of the situation, it says "Thousands have died, a large number of them at the hospital gates and in the hospital compound and even on the road without being attended by the medical staff. Oxygen facilities and prescribed drugs are not available, and if available it is only in black market where no one can know even of purity of genuineness of the drugs."

It made this clear that it is not being written for any special treatment in terms of medical attention as compared to other sections of the society but they hope for a graceful response from the concerned official machinery in order to mitigate the sufferings, "Advocates, though not special citizens, are important part of the society and frontline workers and stakeholders in the matter of dispensation of justice;"

The Coucil thus requested the the Top Court to pass slew of orders/ directions to Government and Judicial Aministrations to help Advocates and Judical Officers combat Coronavirus quickly and effectively.

The Delhi High Court today directed the Insurance Regulatory and Development Authority (IRDAI) to issue immediate instructions to insurance companies/their agents to Insurance companies/their agents be directed to communicate their approvals to the concerned hospitals/establishments within a maximum time period of 30 to 60 minutes, in order to ensure that the discharge of the patients is not delayed in any manner.

The Allahabad High Court has issued notices to Uttar Pradesh State Election Commission (UPSEC), seeking an explanation on why it failed to check non-compliance of Covid guidelines during multiple phases of panchayat elections.

Taking cognisance of reported deaths of 135 teachers, shiksha mitras and investigators assigned panchayat election duty, Allahabad High Court, on Tuesday, issued the notices.

The court further asked why action should not be taken against the state poll panel and its officials and why those responsible for Covid violations should not be prosecuted.

The Nagpur bench of Bombay Highcourt, while deciding a Criminal application, filed under section 482 of CrPC, for quashing of chargesheet and further proceedings against the applicant, pointed out the specific liability of a WhatsApp group admin and said - "A group administrator cannot be held vicariously liable for an act of member of the group, who posts objectionable content, unless it is shown that there was common intention or pre-arranged plan acting in concert pursuant to such plan by such member of a Whatsapp group and the administrator. Common intention cannot be established in a case of Whatsapp service user merely acting as a group administrator. When a person creates a Whatsapp group, he cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group."

The division bench of the court quashed the Charge-sheet and further criminal proceedings initiated against the applicant with the accusations that the applicant (Accused No. 2) is an administrator of a Whatsapp group, that accused No.1 used filthy language against the non-applicant No.2 on the Whatsapp group of which applicant is an administrator, that despite accused No.1 using filthy language against the non-applicant No.2, the applicant had not taken any action against the accused No.1. It is alleged that the applicant being administrator had not removed nor deleted accused No.1 from the Whatsapp group. It is further alleged that the applicant had not asked accused No.1 to submit apology to the non-applicant No.2.

Allahabad Highcourt to continue judicial work through virtual mode only; issues modalities

A bench comprising Justices DY Chandrachud, MR Shah and Sanjiv Khanna pronounced the judgement on the loan moratorium and waiver of interest. A bench headed by Justice Ashok Bhushan had earlier reserved its verdict on the batch of pleas on December 17 last year.

The apex court directed that there shall be no interest on interest or penal interest on any amount during the loan moratorium from any borrower.

The court, in a Suo Moto case, in reference to the ongoing strike by Allahabad Highcourt Bar Association and Awadh Bar Association, passed an order.

"The court further directed the Legislature to complete the process of enacting the Act of 2021, if so desires, but, shall establish Educational Tribunals as proposed only after the leave of this Court."

The order read "Judicial working of the Allahabad High Court that otherwise remained uninterrupted even during the Pandemic has been stalled at the call of High Court Bar Association, Allahabad and Awadh Bar Association, High Court, Lucknow."

The cause for giving the call lor absentation from the judicial work is a proposed enactment in the name of "Uttar Pradesh Service Tribunal Act, 2021", The Act aforesaid proposes establishment of a tribunal for expeditious disposal of service cases relating to teaching and non-teaching staff of the Educational Institutions receiving aid under the Uttar Pradesh State Universities Act, 1973. As per proposed enactment, Headquarter of the Tribunal shall be at Lucknow with a bench at Prayagraj. The Tribunal proposed to be constituted shall be having a Chairman to be appointed as per the procedure given. The Chairman shall be having a discretion to determine the days of sitting of the Tribunal at Lucknow as well as a Prayagraj for adjudication of the cases coming before it.

A bench led by Chief Justice S.A. Bobde on Tuesday constituted a medical board to examine whether it would be safe to medically terminate the 26-week pregnancy of a 14-year-old r**e victim.

The court issued notice to the Centre on a plea by the victim. She has sought the court’s permission to medically terminate her 26-week-old pregnancy.

The bench, which also comprises Justices A.S. Bopanna and V. Ramasubramanian, issued notice and directed medical board to submit its report within a week.

The Supreme Court on 18th February,2021 comprising of a three-judge bench of Justices UU Lalit, Hemant Gupta and Ravindra Bhat observed that a manufacturer will not be liable for the fault of the dealer, unless it is proved that the manufacturer was aware of the deficiency of the dealer, in cases where the relationship between them is on "principal-to-principal" basis. [Tata Motors Ltd v Anonio Paulo Vaz and Another]

The case arose in 2011 when Vaz bought a car after paying the agreed total consideration price.

At the time of purchase, Vaz availed bank credit. A 2009 model car which had run 622 kilometres was sold to him in place of a new car. Vaz, therefore, requested for refund of the price paid or replacement of the car. The price was, however, not refunded and neither was the car replaced. Vaz refused to take delivery of the 2009 model car.

He preferred a complaint before the Goa District Consumer Redressal Forum (District Forum).

Following an appeal to Supreme Court by Tata motors against the order of NCDRC, the bench observed, "Special knowledge of the allegations made by the dealer, and involvement, in an overt or tacit manner, by the appellant, had to be proved to lay the charge of deficiency of service at its door. In these circumstances, having regard to the nature of the dealer's relationship with the appellant, the latter's omissions and acts could not have resulted in the appellant's liability".

The Madras High Court in P Chandrakumar v. State held that sitting on hunger strike would not amount to an attempt to commit su***de and certainly cannot be viewed as an offence under Section 309 of the Indian penal Section 309 which criminalizes su***de attempt.

The single judge bench of Hon’ble Mr. Justice N. Anand Venkatesh observed, "The Court below ought to have taken cognizance within a period of one year since the offence is punishable for a maximum period of one year. However, the Court below has taken cognizance after nearly three years without assigning any reasons. Therefore, taking cognizance of the final report by the Court below is barred by law and stands vitiated”.

A UK court Thursday ruled that fugitive diamantaire Nirav Modi could be extradited to India to stand trial, stating a prima facie case has been established against him and that he has a “case to answer for in India”. Modi and his uncle Mehul Choksi are accused of routing transactions of about Rs 13,600 crore through fraudulent Letters of Undertaking (LoUs) of Punjab National Bank (PNB). Both men left India in the first week of January 2018, weeks before the scam was revealed.

Modi is subject to two sets of criminal proceedings, with the CBI case relating to a large-scale fraud upon PNB through the fraudulent obtaining of LoUs or loan agreements, and the ED case relating to the laundering of the proceeds of that fraud.

UAPA explained

The court while dealing with a petition u/s 482 CrPC observed "An order made under Section 156 (3) Cr.P.C. directing a police officer to investigate a cognizable case is an interlocutory order and the remedy of revision against such order is barred under Section 397 (2) Cr.P.C."

The court further reiterated the judgement passed by full bench of the court in Father Thomas Vs. State of U.P. and others, that at the pre-cognizance stage when only a direction has been issued by the Magistrate under Section 156 (3) Cr.P.C. to investigate a prospective accused has no locus standi to challenge a direction for investigation of a cognizable case before cognizance or the issuance of process. It may also be taken note of that the order by the Magistrate directing a police officer to investigate a cognizable case is an incidental step in the aid of investigation and trial and is interlocutory in nature, similar to orders granting bail, calling for records, issuing search warrants, summoning witnesses and other like matters which do not impinge upon a valuable right of a prospective accused and is, hence, not amenable to a challenge in a criminal revision in view of the bar contained under Section 397(2) Cr.P.C.

ForesLegal wish you all a Happy and Prosperous Diwali.

The Attorney General for India, KK Venugopal has granted his consent for initiation of contempt proceedings against comedian Kunal Kamra, over his tweets about the Supreme Court in the wake of its order granting interim bail to Arnab Goswami.

Finding Kamra's tweet to be highly objectionable, the AG granted his consent under Section 15(1)(b) of the Contempt of Courts Act, 1971 to initiate criminal contempt. He said,

"I find that today people believe that they can boldly and brazenly condemn the Supreme Court of India and its judges by exercising what they believe is their freedom of speech. But under the Constitution, the freedom of speech is subject to the law of contempt and I believe that it is time that people understand that attacking the Supreme Court of India unjustifiedly and brazenly will attract punishment under the Contempt of Courts Act, 1972."

The National Green Tribunal (NGT) has sought the opinion of the Ministry of Environment and Forest, Central Pollution Control Board and the states on the issue of prohibiting crackers from November 7 to 30 in a plea alleging that the increase in pollution may crumble the COVID-19 pandemic situation in Delhi.

A bench comprising Chairperson Justice Adarsh K. Goel, Justice Sheo Kumar Singh, Dr Satyawan Singh Garbyal and Dr Nagin Nanda noticed that there are also expert views on the clear nexus of air pollution with Covid-19. With expanded air contamination, the infection can cause more harm.

The application has been filed by Indian Social Responsibility Network through Santosh Gupta alluding to the assertion of the Union Health Minister and the Health Minister of Delhi that during the festive season there will be a rise of Covid cases because of air contamination.

Appearing for Chief Minister Rawat today, Attorney General KK Venugopal stated that the High Court had erred in ordering a Central Bureau of Investigation (CBI) probe against the CM, who was not a party to the case. He said,

"The CM was not a party in this case and the High Court ordered a CBI probe. This is against Supreme Court verdicts which disallow destabilizing the government, as such verdicts demand resignation of the CM, which is happening."

Justice Shah noted that "everyone was taken by surprise" after the High Court exercised its suo motu powers under Article 226 when there was no such issue raised by the petitioners. Justice Bhushan observed,

"The CM was not a party and such a drastic order has been passed."

It is time to take out bicycles and stop using "beautiful cars", Supreme Court said on Thursday while hearing the issue identified with contamination caused in Delhi-National Capital Region (NCR) because of stubble burning in neighboring states.

A bench headed by Chief Justice S A Bobde said that some experts have informed that stubble burning is not the only source of pollution.

“We would like you to stop using your beautiful cars. Which you won't. We should all go about on bikes - not motorbikes but bicycles,” the CJI observed.

“Some experts have informed us informally that it is not only stubble burning that creates pollution,” said the bench, also comprising Justice A S Bopanna and Justice V Ramasubramanian. “It is time to take out your bicycles”.

The apex court was informed by Solicitor General Tushar Mehta that the Centre has come out with an Ordinance on curbing pollution and it has been promulgated already.

The Supreme Court of India on Tuesday sought for response from all the High Courts on 'Draft Rules Of Criminal Practice' in a suo moto matter concerning the insufficiencies and shortcomings in the criminal trial framework.

A bench including the Chief Justice S.A. Bobde and Justice L. Nageswara Rao noticed that "Amicus Curiae Senior Advocate Siddharth Luthra states that draft rules have been set up after notification to HC and in the wake of hearing those HCs which reacted. All things considered, in light of a legitimate concern for equity, we ought to hear the High Courts prior to taking a decision on framing rules.

The Supreme Court on the recommendation of Senior Advocate R. Basant had taken suo moto cognizance concerning the issue of deficiencies and shortcomings in the criminal trial. Though, the bench named Senior Advocate Sidharth Luthra and Senior Advocate R. Basant as amicus curiae in the issue.

Mr. Luthra submitted before the Court that all the draft rules were framed in the wake of hearing the perspectives on the High Courts, notwithstanding, the bench asked that the High Courts to submit their response before giving any heading.

The issue will be listed following a month.