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The apex court issues notice to UP Govt. on a plea seeking CBI Probe & Transfer of Case outside UP in Rape Case against the govt. Counsel [READ ORDER]

The Supreme Court on Friday issued notices in a writ petition seeking transfer of investigation and trial in the criminal case filed against a standing counsel of the UP Government who has been accused of rape by a young practicing lawyer from Delhi.

By: Dimple Kaushalya

The petitioner, a friend of the victim, has accused Mr. Shailendra Singh Chauhan, Additional Chief Standing Counsel in the Lucknow bench of the High Court for sexual harassment of a young practicing lawyer from Delhi. She has alleged that Mr. Chauhan raped the victim in his chamber after administering some intoxicants to her.

Accordingly, an FIR was lodged at the Vibhuti Khand Police Station in Gomti Nagar area, under Sections 328 (Causing hurt by means of poison, etc., with intent to commit an offence), 354A (Sexual harassment) and 376 (Rape) of IPC.

The Petitioner has submitted that the FIR lodged by the victim in the Vibhuti Khand Police Station has shockingly been circulated all over media, thereby, disclosing the victim’s identity and personal details to the public and making it impossible for her or her family to even step out of their house.

This act is violative of Section 228A of IPC which prohibits the disclosure of the identity of a rape victim and makes such disclosure a punishable offence. 

It was further submitted that given the clout of the accused being an Advocate with a long-standing and being related to powerful politicians, they have not been able to file a writ petition before the High Court which has shaken the confidence of the victim.

In these circumstances, she has prayed for:

  • A direction upon the Lucknow Police to immediately remove all news, information and other material over the internet relating to the victim or her family;
  • A direction to test all samples collected from the crime scene in an FSL facility situated outside the State of UP;
  • Transfer of investigation to CBI;
  • Transfer of trial outside the State of UP.

Subsequently, Chauhan had approached the High Court stating that the allegations leveled against him were false and therefore, the FIR registered against him ought to be quashed.

Though the court refused to quash the proceedings instantly, it granted interim relief from arrest to Chauhan. Nevertheless, this order has been stayed by an apex court bench comprising of Justices RF Nariman, Navin Sinha and Indira Banerjee and notices have been issued to the UP Government and SP, Lucknow, stating, “Application seeking exemption from filing Official Translation is allowed.”

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Bombay High Court directs man accused of verbal assault on tehsildar to deposit Rs. 50,000 to CM’s Welfare Fund. [READ ORDER]

A man accused of verbally assaulting a public servant who was discharging her duty was directed to deposit Rs.50, 000 with the Chief Minister’s Welfare Fund as an additional condition for granting him anticipatory bail.

By: Dimple Kaushalya

The complaint is lodged in the backdrop of the Covid-19 pandemic when the lockdown was declared on March 24, 2020, and several workers/labourers who were engaged in various activities in the city of Mumbai attempted to leave for their village.

In this situation, on March 29, a batch of such migrants started from Vasai-Virar and was proceeding towards Shahapur. The complainant, working as a Tehsildar was instructed to arrange for their lodging and boarding, and accordingly, a batch of around 80 such migrants was to be offered shelter in Ashram school, Shirur Village. During that point in time, Farukh Dalvi, the applicant, accompanied by several persons, seriously objected to this plan.

The complainant has alleged that the applicant had verbally abused her and threatened her with dire consequences.

To this, the applicant’s counsel submitted that his client had only stalled the habitation of the migrants in the school which was being done without following the due process and that the whole village would have been put at risk according to him.

While passing the order, the bench of Justice Bharati Dangre observed that “It is no doubt true that the applicant has attempted to deter the complainant from the discharge of her duties and particularly when he considers himself to be a social worker rather it was imperative on his part to assist the Government agency in securing shelter to the migrants. Instead, the version of the complainant is to the contrary. However, accepting the bonafides of the applicant that he was objecting to their refuge with genuine concern of the villagers, I am ready to accept the same. However, as a responsible person and since he claims to be a social worker, he must contribute an amount of Rs.50,000/- in the Chief Minister Welfare Fund for aiding the State Government which is grappling with an unpredicted situation and coping with a grim and stressful scenario. This will be an additional condition of the applicant being released on bail in anticipation of his arrest for the offence under Section 353 of IPC.”

The bench further ordered that in the event of the applicant’s arrest, he shall, after fulfilling the above-mentioned additional condition, be released on bail after furnishing a P.R. bond to the extent of Rs. 25,000 with one or two sureties.

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Gujarat HC Urges State to make Appointments to RERA Appellate Tribunal at the Earliest. [READ ORDER]

The Court urged the State Government to expedite the process of appointing members as well as the Chairperson, to the Gujarat Real Estate Appellate Tribunal.

By: Divyansh Saini

A PIL was filed by one Nipun Singhvi, seeking a declaration that the constitution of the Appellate Tribunal is corum non judice. Praying before the Court that an appropriate direction is made to the Government to make the Tribunal functional by appointment of Chairperson, Technical and Administrative Members and allotment of necessary space.

As Section 45 of the RERA Act prescribes that the Appellate Tribunal shall consist of a Chairperson and not less than two whole-time Members of which one shall be a Judicial Member and other shall be a Technical or Administrative Member, to be appointed by the appropriate Government.

Responding to which the Government Pleader stated that the selection of Administrative and Technical Members had already been made by the Selection Committee. Further, the process for appointment of the Chairperson was also in advance stage of consultation.

With regard to allotment of sufficient space for the Tribunal premises, the Government had submitted a detailed note stating that sufficient space had been allotted.

The Division Bench comprising Chief Justice Vikram Nath and Justice JB Pardiwala disposed of the plea while urging the Government to “make the appointments at the earliest”.

“In view of the above, this Public Interest Litigation does not require any further consideration and accordingly stands disposed of. We, however, expect the State to make the appointments at the earliest in view of the statement made,”

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An application seeking time Extension for Investigation not Maintainable if Progress of probe not disclosed: Bombay High Court. [READ ORDER]

An application that seeks extension of time for an investigation under the Narcotic Drugs and Psychotropic Substances Act, 1985 is not maintainable if it is not in conformity with the requirements of the proviso to subsection (4) of Section 36A of the NDPS Act, held by Court.

By: Dimple Kaushalya

The application submitted was a transmission of the request of an Investigating Officer seeking an extension of time. The main reason stated for seeking extension was the inability to complete the investigation due to the lockdown being declared in light of the COVID-19 pandemic. The report did not disclose the progress of the investigation.

In this case of Nayantara Gupta v. State of Maharashtra (LD/VC/OCR/115/2020) – the applicant was arrested on 12.11.2019 for offenses under the NDPS Act involving the holding of commercial quantity. On May 11, 2020, the Prosecutor applied for an extension of the time required for the probe.

The Special Court did not pass any order on the merits of the application and kept it pending in view of the suo moto order passed by the Supreme Court on March 23 extending the limitation period. The next day, the applicant moved an application seeking default bail. On May 15, the Special Court dismissed the application, holding that the time for probe stood extended in light of the SC order extending limitation.

Challenging this, the applicant moved the High Court. The HC noted that the SC has held in the case of S Kasi v. State that the suo moto extension of limitation does not apply to the investigation.

“The application/report does not disclose the progress of the investigation conducted during this four and half months period i.e. from the date of the arrest till the date of the lockdown. The report does not reflect steps taken for recording the statements of the witnesses and calling for the CDR and Chemical Analysis report during this period of four and a half months. Under the circumstances, the reasons stated in the application cannot be considered as genuine. It is not for the court to conjecturize the reasons or causes for such lackadaisical investigation or mechanical approach of the public prosecutor. Suffice it to say that such lapses tend to render the stringent provisions of bail nugatory and thereby deflect the criminal justice system. It is, therefore, necessary that the concerned authorities look into the above noted serious lapses, fix accountability, and take corrective measures in the matter“, held by the bench of Justice Anuja Prabhudessai.

News, Top Stories

Action Instituted U/s 31 Specific Relief Act is Arbitrable as it is not an Action In Rem: Supreme Court [READ JUDGMENT]

The Apex Court held that the action instituted under Section 31 of the Specific Relief Act, 1963 is not an action in rem, but an action in personam, therefore arbitrable.

By: Divyansh Saini

In this case, a suit was filed by Deccan Paper Mills Co. Ltd. against Regency Mahavir Property and others, one of the prayers was to set aside some agreements. The Court had allowed the application filed by Regency to refer the matter to Arbitration. The High Court also dismissed the writ petition filed by Deccan in this regard.

Thus, before the Apex Court in appeal, Deccan contended that since the prayer in the suit is for cancellation of three “written instruments”, the proceeding under section being a proceeding in rem, would fall within one of the exceptions made out in Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532. The contention was made referring to Section 31 of the Specific Relief Act, 1963 and a judgment, Aliens Developers Pvt. Ltd. v. M. Janardhan Reddy (2016) 1 ALT 194 (DB), in which it was held that the action under Section 31 is an action in rem and therefore non-arbitrable.

Referring to Muppudathi Pillai v. Krishnaswami Pillai AIR 1960 Mad 1, the Apex Court observed that the expression “any person” in Section 31 does not include a third party but is restricted to a party to the written instrument or any person who can bind such party.

Overruling Alien Developers, the bench of Justices RF Nariman, Indira Banerjee and Navin Sinha dismissed the appeals and further observed:-

The reasoning in the aforesaid judgment would again expose the incongruous result of section 31 of the Specific Relief Act is held to be an in rem provision. When it comes to cancellation of a deed by an executant to the document, such person can approach the Court under section 31, but when it comes to cancellation of a deed by a non-executant, the non-executant must approach the Court under section 34 of the Specific Relief Act, 1963. Cancellation of the very same deed, therefore, by a non-executant
would be an action in personam since a suit has to be filed under section 34. However, cancellation of the same deed by an executant of the deed, being under Section 31, would somehow convert the suit into a suit being in rem. All these anomalies only highlight the impossibility of holding that an action instituted under section 31 of the Specific Relief Act, 1963 is an action in rem
.”

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