Wednesday, February 15, 2023

Just Because A Driver Is Holding Valid Licence For LMV Doesn’t Mean He Is Authorised Or Competent To Drive A Two-Wheeler As Well: Delhi High Court

Read Judgment

While rejecting the insurance company's argument that it is not liable to pay anything as the rider was not holding a valid licence to drive the two-wheeler, the MACT had said that a male person who is competent to drive a Light Motor Vehicle cannot be expected to be incompetent in driving a two-wheeler

Observing that the presumption made by the MACT was without any basis, Justice Rekha Palli said that a person who can drive a four-wheeler cannot be automatically presumed to be competent to drive a two-wheeler since the skills required for driving the two vehicles are quite different.

While ruling that the MACT failed to observe that a Light Motor Vehicle and a two-wheeler have been placed in two distinct categories under the Motor Vehicles Act, 1988, the court said, “Merely because respondent no. 2 held a valid licence for a Light Motor Vehicle could not imply that he was authorised or competent to drive a two-wheeler.”

In an appeal filed before the high court against the order of the MACT, the appellant, HDFC Ergo General Insurance Co. Ltd, argued that in view of the unrebutted testimony of the Record Clerk from the Sarai Kale Khan Transport Authority, New Delhi, it was clear that the driver did not have a valid licence to drive a two-wheeler, and thus, the terms and conditions of the insurance policy stood breached. 
HDFC Ergo contended that the MACT had failed to consider the same while refusing to grant it recovery rights against the driver/owner of the vehicle.

The court said the Record Clerk from Sarai Kale Khan Transport Authority, South Zone, had categorically stated before the tribunal that the private respondent was authorised to drive only a Light Motor Vehicle—Transport - LMV-TR (Commercial Vehicle), and not a two-wheeler.

“However, I find that despite having noted the categoric stand of the transport authority that respondent no.2, driver of the offending vehicle, did not hold a valid licence to drive a two-wheeler, which he was driving at the time of the accident, the learned Tribunal rejected the appellant’s plea that it was not liable to pay compensation,” the court said.

The bench further observed that the high court in Bajaj Allianz General Insurance Co. Ltd. v. Akram Hussain & Ors., MAC.APP.306/2009, was dealing with a similar issue, where it has been held that it could not be assumed that every person who is competent to drive Light Motor Vehicle would be skilled in driving a two-wheeler as well.

Observing that it is evident that the offending vehicle was being driven by a person who did not have a driving licence for it, the court said it was a clear case where there was a breach of the terms and conditions of the insurance policy.

“Consequently, the finding of the learned Tribunal that the appellant was liable to pay the compensation is unsustainable and is set aside. The appeal is, accordingly, allowed by modifying the impugned award to the extent it does not grant any recovery rights in favour of the appellant by directing that the appellant would be entitled to recover the awarded amount from respondent no. 2 in accordance with law.” 

No Enrollment Fee Above Rs 750 : Kerala High Court To Bar Council

Read Judgment

The Kerala High Court on 15/02/2023 passed an interim order holding that the Bar Council is not entitled to collect an enrolment fee of more than Rs.750/- prescribed under law, while enrolling prospective advocates.

Justice Shaji P Chaly passed the said order in view of the decision of the High Court in Koshy T. v. Bar Council of Kerala, Ernakulam and Another (2017 KHC 553) which had held that without being conferred any specific power under the statute, the Bar Council is not entitled to collect fee other than a fee of Rs.750/- prescribed under law.

The petitioners, who graduated from Government Law College, Ernakulam, had sought for an interim relief to direct the Bar Council of Kerala to accept the application of petitioners along with an enrolment fee of Rs 750/- in the upcoming enrolment. The court while granting the interim relief sough for, stated that:

“when this specific question was considered by this Court in Koshy T. (supra), which has become conclusive and final, it may not be appropriate on my part to direct the petitioners to pay the entire amount claimed by the Bar Council and receive applications for enrollment".

"In that view of the matter, there will be a direction to the respondent Bar Council to receive applications from the petitioners with a fee of Rs.750/-, which will be subject to the result of this writ petition"

The Petitioners who are law graduates desiring to enrol as advocates with the Bar Council of Kerala in the upcoming enrolment filed the writ petition in view of the “exorbitant and illegal fees” of Rs 15,900/- being levied by the Kerala Bar Council. Some of the petitioners also include candidates belonging to the SC/ST and OBC categories from low-income backgrounds for whom such high fees is “an insurmountable financial burden”, the petition states.

The Counsel for the Bar Council of Kerala argued that Rs.750/- being a meagre amount, would not meet the costs incurred by the Bar Council for the enrolment of potential candidates. 

In the petition filed, the specific contention of the petitioners is that enrolment fees of Rs. 750/- have been imposed under Section 24(1)(f) of the Advocates’ Act. Any rule passed by the Bar Council of Kerala, giving itself the authority to levy a higher charge is beyond the scope of its powers, the petition states. Levying such high fees “deals a heavy blow to the objective of increasing accessibility to the profession by erecting a substantial financial barrier for entry to the profession for many aspiring advocates” the petition points out. 

The petitioners have also raised a challenge against the amount of Rs 1000/- being collected towards the Chairman’s Relief Fund along with the enrolment fee, which according to the petitioner is nothing additional enrolment fee in another form. The amount of Rs. 3000/- being collected towards the Bar Council of India Welfare Fund from each candidate has also been questioned by the petitioners. The petitioners argued that only advocates have the obligation to pay such an amount and not potential advocates. The petitioners made specific reference to Rule 40, Part VI, Chapter II, Section IV-A of the Bar Council of India Rules in this regard. 

Monday, February 13, 2023

A Woman Facilitating Act Of Rape With A Group Of People May Be Prosecuted For 'Gang Rape' U/S 376D IPC: Allahabad High Court

Read Judgment

The Allahabad High Court has observed that a woman can not commit the offence of rape but if she facilitates the act of rape with a group of people then she may be prosecuted for 'Gang Rape' under Section 376D Of IPC in view of the amended provisions.

Perusing the provisions of Section 375 and 376 IPC (as amended by Act 13 of 2013 of the Indian Penal Code, 1860), the bench of Justice Shekhar Kumar Yadav rejected the argument that a woman cannot be prosecuted for the alleged commission of the offence of gang rape.

With this, the Court also rejected a Section 482 CrPC plea moved by one Suneeta Pandey who has been summoned by Additional District and Sessions Judge- Ist, Siddharth Nagar to face the trial u/s 376-D, 212 IPC in connection with the alleged rape case of a 15-year-old girl.

Essentially, as per the facts of the case, the incident took place in June 2015 and the FIR was lodged by the informant against unknown persons in July 2015 under sections 363 and 366 I.P.C. alleging therein that someone has enticed away the daughter of the informant aged about 15 years and took her with him.

In her Section 164 CrPC statement, the victim stated that the applicant was involved in the alleged incident, however, she was not named in the charge sheet. Thereafter, opposite party no.2 filed an application under Section 319 Cr.P.C. for summoning the applicant and the court below allowed the said plea.

Pursuant to this, the applicant moved the High Court seeking to quash the summoning order as well as to stay the further proceedings in the case on the ground that being a lady, no offence under Section 376-D I.P.C. is made out against the applicant and that she has been wrongly summoned by the trial court. 

Taking into account the facts of the case, the Court, at the outset noted that the argument that a lady cannot be prosecuted for gang rape is not correct as per the amended provisions of Section 375 to 376E IPC by Act 13 of 2013 of the Indian Penal Code, 1860

The Court observed that though it is clear by the non-ambiguous language of section 375 of IPC that a woman can't commit rape as the section specifically states that the act of rape can only be done by a ‘man’ and not by “any woman”, however, the Court added, the same is not the case with Section 376D (Gang Rape).

"The term 'person' used in the Section should not be construed in a narrow sense. Section 11 I.P.C. defines ‘person’ as it includes any company or association or body of persons whether incorporated or not. The word 'person' is also defined in the Shorter Oxford English Dictionary in two ways: firstly, it is defined as 'an individual human being' or 'a man, woman, or child'; and, secondly, as 'the living body of a human being'. As such, a woman can not commit the offense of rape but if she facilitated the act of rape with a group of people then she may be prosecuted for Gang Rape in view of the amended provisions. Unlike man, a woman can also be held guilty of sexual offences. A woman can also be held guilty of gang rape if she has facilitated the act of rape with a group of person," the Court remarked,

Sunday, February 12, 2023

Wife Has No Right To Obstruct Sale Of Estranged Husband’s Home When He Is Willing To Provide Her Similar Rented Accommodation: Bombay High Court

Read Judgment

A woman doesn’t have the right to obstruct the sale of her estranged husband’s home if he is willing to provide her with a rented accommodation with similar facilities, the Bombay High Court has held.

The court made the observation while refusing to interfere with an order of the Family Court permitting the o-directed wife to move out of the accommodation and choose a  to sell the flat to clear an outstanding loan. The Family Court had a stable two-bedroom rental flat, failing which she would be handed over Rs. 50,000 per month.

“It is well settled that the wife has a right to lead a similar lifestyle as that of the husband. However, she has no right to impede the sale of a flat owned by her husband if the husband provides similar alternative accommodation in the vicinity. If the
husband is ready to provide alternative rental accommodation having similar advantages, she cannot refuse it on the ground that she is habituated in the existing flat,” Justice Amit Borkar said.

The court observed that such an order takes care of the rights of both parties and the wife can’t be heard to say that she would obstruct the sale merely because she is habituated to the flat. 

The Case 

The husband in 2021 filed an application to sell the flat, in his divorce petition pending before the family court. The family court allowed the application following which the wife assailed the order before the high court. 

The couple got married in 1996 and have two daughters, aged 24 and 16.

The husband through Advocate submitted he had paid forty-four (44) instalments for the flat amounting to Rs. 1.15 crore along with interest. However, due to Covid-19 restrictions, he wasn’t able to go back to the UK and was compelled to stay in India. He is now unable to pay the EMI and bear the expenses of two households, he said. 

He offered to pay rent instead. If the bank initiated recovery proceedings, his financial credibility and credit record would be damaged, his counsel said. 

The wife’s counsel Abhijit Sarwate instructed by Ajinkya Udane contended that the husband had raised a mortgage to purchase shares. It was alleged that his main aim was to oust her from her matrimonial home and denied that her husband was facing any financial problems. 


The court observed the Family Court order balanced rights of both parties. It is well settled that the wife has a right to lead a similar lifestyle as that of the husband, added the court.

“If the husband is ready to provide alternative rental accommodation with similar advantages, she cannot refuse it on the grounds that she is habituated in the existing flat.”

Regarding the wife’s apprehension of eviction, the court said the husband has already given an undertaking that he will pay rent for alternative premises on a monthly basis.

On the argument that the Family Court granted the husband more than what he sought, the bench modified the relief - it allowed the husband to sell the premises in question and directed him to keep Rs. 2 crores in a nationalised bank in fixed deposit, which, it said, shall not be liquidated without permission of the Family Court. 

“The material on record shows that the husband has continued to pay EMI of suit premises even after the separation of petitioner and respondent. This indicates that the husband's intention is not to evict the petitioner from the suit premises but to shift her to alternative accommodation suitable for her. The undertaking dated 13th January 2023 takes care of the wife's rights,” the court observed.

Justice Borkar said the husband's offer is "bona fide" and the material on record shows he continued to pay EMI of the premises even after separation. 

Also, the undertaking "takes care of the wife's rights." He concluded that "the equitable order" passed by the family court needs no interference 

and refused to stay it.

Thursday, February 9, 2023

The Madras High Court has quashed a notification issued by the Registrar of NCLT which made it mandatory for advocates appearing before any bench of NCLT to wear gowns.

Read Judgment

A bench of Justice K Ravichandrabaabu (since retired) and Justice TS Sivagnanam had ordered an interim stay on the operation of the order holding it to be in conflict with the Rules of the Bar Council of India which makes wearing of gowns mandatory for an advocate only in case she or he is appearing in the Supreme Court or the high courts.

The division bench of  Justice R Mahadevan and Justice Mohammed Shaffiq in the judgment noted that as per Section 34 of the Advocates Act and the Bar Council of India Rules, only the High Court can frame rules for the dress code for the appearance of advocates.

"In absentia, the rules in chapter IV of the Bar Council of India Rules shall prevail and the Tribunals have no authority to issue any instructions determining the dress code for the appearance of the advocates before it. When there are statutory rules framed by the competent authority and when the statute has conferred the powers on the High Court with reference to prescription of the dress code, any instruction, direction, advisory by the Tribunal, especially when it runs contrary to the statutory rules, is ultravires the Act, and without there being any source of power for issuance of such directions."

It also said that it could be inferred that the wearing of “gown” is only optional and not mandatory before any courts other than the Supreme Court or the High Cours

The court added that the powers prescribed under Rule 51 of the NCLT Rules are merely for discharging functions as per the Act, in accordance with the principles of natural justice and equity. The same could not mean conferring power to prescribe the dress code, more so when it is contrary to the Bar Council of India rules, it said.

The court also noted that “other powers” granted to the President of the NCLT are with respect to the administrative power of the President and that also could not be stretched to include the power to frame any rule or issue any instruction, in the nature of the one impugned, to prescribe the dress code for the advocates. 

The court noted that during the pendency of proceedings, the NCLT modified its earlier order and followed the Bar Council of India Rules with respect to the dress code for legal practitioners. 

"The proceedings dated 27.01.2023 is taken on record. However, the impugned order, though withdrawn, will stand quashed on the basis of the reasoning as adumbrated hereinbefore," it added.

No Fundamental Right To Poison Children, Can't Allow Outsourcing Of Midday Meal Kitchens: Bombay HC Orders Surprise Inspections At Malegaon Schools

The Bombay High Court on 09-02-2023 directed the civic body of Malegaon city in Maharashtra to conduct surprise inspections at 27 government-aided schools and ascertain if they had operational kitchens and storage rooms to provide midday meals for its students.  A division bench of Justices GS Patel and Neela Gokhale was hearing the schools’ petitions seeking directions to the municipal corporation to re-start supplying uncooked grains instead of asking schools to take cooked meals from the centralized community kitchen chains.

The schools claimed that they were supplied foodgrains between 2000-2019, till the State came up with a revised policy following SC’s guidelines on centralized kitchens. They complained about the punctuality and quantity of food provided through these kitchens. 
“We are not allowing you to outsource the cooking. You don't have the fundamental right to poison children because you are a minority institution…We cannot take the risk,” 
Justice Patel said refusing to even consider the proposition that the schools may by supplied food grains and outsource the cooking.

Tuesday, February 7, 2023

'Virginity Test On Accused Unconstitutional': Delhi High Court Allows Sister Sephy To Seek Compensation

The Delhi high court on 7/02/2023 held that forced virginity test on persons in police or judicial custody is unconstitutional stating that strangely, though the word “virginity” may not have a definite scientific and medical definition, it has become a mark of purity of a woman.

Justice Swarana Kanta Sharma observed that the virginity test conducted on an accused during the investigation, whether in judicial or police custody, is unconstitutional as being in violation of Article 21 of the Constitution of India. 

Underscoring that Article 21 is not suspended during the investigation, the court granted liberty to Sister Sephy to seek compensation for the violation of her human rights after the criminal case is over.

“It is declared that the virginity test conducted on a female detainee, accused under investigation, or in custody, whether judicial or police, is unconstitutional and in violation of Article 21 of the Constitution which includes the right to dignity,” said the single bench of Justice Swarna Kanta Sharma stating that there “cannot be two sets of views regarding the test of virginity being in violation of fundamental right” of a victim of sexual assault and a woman under investigation.
According to the petition filed by Sister Sephy in 2009, she was forcefully subjected to undergo virginity test by the CBI in November 2008 against her consent. “The intrusive testing procedure does not have a medical standing. Despite being inaccurate and there being definite studies that in some women hymen may not tear during vaginal intercourse, while in others they may tear even without vaginal sexual intercourse due to sports and other activities and some women may not even have one, such test has been conducted,” the bench observed.
The court further stated that it is not impressed with the argument of the law enforcement agency that the virginity test was necessary to uphold the laws since this argument itself flouts basic principles that a person’s dignity even in custody has to be upheld.

Removing Minor Victim's Pant After She Herself Refuses To, Amounts To Attempt To Commit Rape: Calcutta High Court

Read Judgment

The Calcutta High Court has 03/02/2023 held that removing a minor victim's pants after she refused to do so herself amounts to an attempt to commit the offence of rape. 

The Court was adjudicating upon an appeal passed against a trial court order convicting the appellant under Section 376 (punishment for the offence of rape) read with Section 511 (punishment for attempting to commit crimes punishable with imprisonment for life or another imprisonment) of the Indian Penal Code (IPC). 

Justice Ananya Bandyopadhyay observed that the act of removing the undergarment of the victim and forcibly making her lie down on the ground cannot be for any other reason than to sexually ravish her. 

“..asking the victim to remove her pant and in defiance the appellant himself removing it justifiably signifies an attempt to commit the offence of rape. The action of removing the undergarment of the victim covering and protecting her private parts and forcibly made her lie down on the ground cannot be for any other oblique reason but indubitably for the purpose of ravishing her”.
“The appellant had no reason to provide an ice-cream to the minor victim except with an ulterior motive of quenching his sexual gratification. The first stage of enticing the victim with an ice-cream and distancing her to an isolated area was preparatory in nature”, the Court underscored.
“The appellant who could have been the protector owing to his age conducted such reprehensible act towards the minor victim child, which if accomplished in its entirety would have impacted her life inconsolably to bear the wretched stigma throughout her life”, the Court added.

Accordingly, the Court upheld the conviction and sentence of 5-year jail handed down by the concerned trial court for an attempt to commit the offence of rape.