KUNAL BAHL and another vs STATE OF KARNATAKA. CRIMINAL PETITION NO.4676 OF 2020. Decided on 7^TH DAY OF JANUARY, 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357138/1/CRLP4676-20-07-01-2021.pdf

HELD: 16.1 At the time of taking Cognisance and issuance of process, the Court taking Cognisance is required to pass a sufficiently detailed order to support the conclusion to take cognisance and issue process, in terms of the discussion above. The judicious application of mind to the law and facts of the matter, should be apparent on the ex-facie reading of the order of Cognisance.

16.2 When the accused is having an office, branch office, corporate office, sales office or the like within the Jurisdiction of the Magistrate where the offence has been committed and or continues to be committed, there would be no requirement for any enquiry under Section 202 of Cr.P.C. It would, however, be required for the Magistrate to in the order of issuance of summons/process record as to why the enquiry under Section 202 of Cr.P.C is not being held.

16.3 In the event of accused being an individual, if the said accused has a temporary residence within the Jurisdiction of the Magistrate, again merely because he does not have a permanent residence, there is no enquiry which is required to be conducted under Section 202 of Cr.P.C. It would, however, be required for the Magistrate to in the order of issuance of summons/process record        as      to      why  the    enquiry      under Section 202 of Cr.P.C is not being held.

16.4 When the accused has no presence within the Jurisdiction of the Magistrate where the offence has been committed, then it would be mandatory for an enquiry under Section 202 of the Cr.P.C to be held.

16.5 In the event of accused being aggrieved by the issuance of Summons, the said accused immediately on receipt of the Summons and/or on appearance before the Magistrate is required to make out his grievance before the Magistrate Court and/or by petition under Section 482 Cr.P.C. If there is any delay, in such challenge and/or if challenge has not made within reasonable time, the accused would not be entitled to raise the grievance that the procedure under Section 202 of Cr.P.C. has not been followed on account of delay and latches.

16.6 Only a Court in which the accused has a presence, like registered office, branch office, corporate office or the like could exercise Jurisdiction as regards an offence relating to an e-commerce transaction.

16.7 This of course would not apply to a Cyber Crime, which comes under global jurisdiction according to the IT Act, 2000. This means that any cyber-crime complaint can be registered with any of the cyber cells in India, irrespective of where the crime was originally committed.

16.8 An intermediary as defined under Section 2(w) of the Information Technology Act or its directors/officers would not be liable for any action or inaction on part of a vendor/seller making use of the facilities provided by the intermediary in terms of a website or a market place.

16.9 An intermediary would not be responsible and/or liable for sale of any item not complying with the requirements under the Drugs and Cosmetics Act, 1949 on its platform since the essential ingredients of Section 18 (1)(c) of the Act not  having been fulfilled. Neither Snapdeal nor its Directors can be prosecuted for the offence under Section 27(b)(ii)  of the Act.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Dr. Prashant Babaji vs The State of Karnataka and others. Writ Petition 10807/2018 decided on 30 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357135/1/WP10807-18-30-12-2020.pdf

Relevant paragraphs: 14. It is trite law that this Court under Article 226 of the Constitution of India would be loathe to interfere with the marks awarded by a selection committee to the candidates who appear before them, save in exceptional circumstances of demonstrable arbitrariness or malafides. The case at hand is not where arbitrariness is writ large by way of any demonstration or malafides have been pleaded. The prayer sought in terms of the grounds urged is that the award of marks to the third respondent is on the higher side, both on journals and the interview. I cannot telescope my imagination to the minds of the selection committee to hold the marks awarded being excessive or insufficient. It is for the experts to award marks for publications. This Court while exercising judicial review would not sit in the armchair of experts and assess or award marks for such publications.

16. Cases referred to: Dalpat Abasaheb Solunke v. B.S. Mahajan reported in (1990) 1 SCC 305, Basavaiah (Dr.) v. Dr. H.L. Ramesh reported in (2010) 8 SCC 372, Neelima Misra v. Harinder Kaur Paintal [(1990) 2 SCC 746, Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan [(1990) 1 SCC 305, Chancellor v. Dr.Bijayananda Kar [(1994) 1 SCC 169, J&K  State  Board   of Education v. Feyaz Ahmed Malik [(2000) 3 SCC 59], DentalCouncilof India v. SubhartiK.K.B.Charitable Trust [(2001) 5 SCC 486], Medical Council of India v. Sarang [(2001) 8 SCC 427], B.C.Mylarappa v. Dr.R. Venkatasubbaiah [(2008) 14 SCC 306, Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University [(2008) 9 SCC 284, All India Council for Technical Education v. Surinder Kumar Dhawan [(2009) 11 SCC 726].

17. In the light of the law laid down by the Apex Court in the aforesaid cases, the plea of the petitioner that there is arbitrariness in awarding marks under the “fixed parameters” and in the interview would not hold water. As observed hereinabove, under the “fixed parameters” both the petitioner and the third respondent have been given equal marks. How much marks is to be given under those parameters is beyond the pane of judicial review. The other ground with regard to marks awarded in the interview being on the higher side to the third respondent also cannot be gone into as no malafides are pleaded and proved by the petitioner.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Khadir Sab vs State of Karnataka. Criminal Petition 6173/2020 decided on 16 December 2020. Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354801/1/CRLP6173-20-16-12-2020.pdf

Relevant paragraphs: 9.6 In the present facts and circumstances, the allegation against the petitioner is that he was in possession of prohibited arm with  an intention to sell the same. The said offence does come under Section 3 of the Arms Act, 1959 but comes within the purview of Section 7 of the Arms Act.

9.7.  In terms of Section 39 of Arms Act,  sanction is required only in respect of an offence under Section 3 of the Act that is only regarding possession of the Arm. No such sanction is required as contemplated in respect of an offence under Section 7 of the Act where prohibited arm is in possession and/or the same is proposed to be sold.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Sri. Sai Keshava Enterprises and others vs The State of Karnataka and others. Writ Petition 8851/2020 and connected matters decided on 7 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357096/1/WP8851-20-07-01-2021.pdf

Relevant paragraphs: 1. The main issue involved in these writ petitions is: “Whether the State Legislature has legislative competence to enact sub Rule (7) of Rule 42 of the Karnataka Minor Mineral Concession Rules, 1994, authorizing collection of entry fee from a  person who transports certain category of minor minerals from other States with valid transit permit to the State of Karnataka?”

25. A careful perusal of the impugned sub-rule in the present petitions shows that it deals with only transportation of processed building stone materials from other States with  a valid permit. It provides for levy of amount of  Rs.70/-  per  metric ton from the person who transports processed building stone material as mentioned in the impugned sub-rule from other States to State of Karnataka with a valid permit. 

32……the State Legislature is empowered to make a plenary legislation by invoking  Entry-66  of  List-II.  However, the subject of regulating mining operations outside the State is not included in entry-66, List-II. Entry-66 is about prescribing fees in respect of any of the matters in list-II.  Entry-23 in List-II is about regulation of mines and  mineral development subject  to the provisions of List-I with respect to regulation and development under the control of the Union. The field is occupied by the said Act of 1957 enacted by the Union Government which does not provide for levy of fees  as  provided in the impugned sub-rule. Moreover, the State Government has not enacted any law in terms of entry-66  of  the said list. Assuming that such a power to levy fee  is vested  in the State Legislature by virtue of Entry-66 of List-II, a rule making power can be exercised provided that a law is enacted by the State Legislature authorizing such a levy by  making rules. No such law has been enacted.

33. As the State Government has no legislative competence to make rules for levy of transportation fee or charge on minerals lawfully excavated in other States, it is not necessary for us to go into the question of quid pro quo regarding  existence of co-relation between the fees collected and the services being rendered.

Compiled by S. Basavaraj Advocate Daksha Legal.

Keerthi Kumar vs State of Karnataka and another. Writ Petition 6278/2018 decided on 8 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352928/1/WP6278-18-08-12-2020.pdf

Relevant paragraphs: 15.15. …, once the land has been gifted under Bhoodan and Vidyadan scheme, there is no right which is created in the donor or the legal representatives of donor to seek for return of the lands gifted for any reason whatsoever. Once the land is gifted to the Government, it is the responsibility of the Government to put the land to the use for which it was granted by way of a gift. At the most, the donor or the legal representatives of the donor can seek for a direction to direct the Governmental authorities to put the land to use for which it was so gifted, they cannot seek for return of the land granted by way of a gift since the gift is complete on the gift deed being executed, there cannot be return of the land.

15.17. The Resumption of the land being not capable of being done on account of Karnataka Bhoodan Yagna (Repeal) Act, 1962, it cannot be now contended by the petitioner that the land is required to be resumed.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Kalpana Manjunath and others vs State of Karnataka and others. Writ Petition 117245/2020 decided on 5 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/356948/1/WP11725-20-05-01-2021.pdf

26. The issue raised before this Court, when considered in the backdrop of the Constitutional provisions, the words of the Apex Court in the case of Ravi Yashwant Bhoir Vs. District Collector, Raigad and Others (2012) 4 SCC 407 could be quoted with authority. It was held that the amendment in the Constitution by adding parts IX and IXA confers upon the local self-Government a complete autonomy on the basic democratic unit unshackled from official control. Thus, exercise of any power having effect of destroying the Constitutional institution besides being outrageous is dangerous to the democratic setup of this country. The democratic setup of the country has always been recognized as a basic feature of the Constitution, like other features eg., supremacy of the Constitution, rule of law, principle of separation of powers, power of judicial review etc. It is not permissible to destroy any of the basic features of the Constitution even by any form of amendment, and therefore, it is beyond imagination that it can be eroded by the executive or its whims without any reason. The  Constitution accords full faith and credit to the act done by the executive in exercise of its statutory powers, but they have a primary responsibility to serve the nation and enlighten the citizens to further strengthen a democratic State.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Ababakar Ansari Miya and others vs State of Karnataka and others. Writ Petition 11248/2020 decided on 21 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354911/1/WP11248-20-21-12-2020.pdf

Facts: Straight from any movie ! Please read

Relevant paragraphs. 7. Sri.Kethan Kumar, learned counsel or the petitioners would submit that the petitioners are but fishermen, who unfortunately due to act of nature were stuck on the high seas due to a cyclone, the diesel of their Vessel got depleted and finally drifted into maritime zone of India. There is no allegation against the petitioners as regards any other offences nor have they involved themselves in any particular offences. Merely because they came into the maritime zone, they have been in custody for more than fourteen months, as such, he submits that there being no offences which are made out against the petitioners, the proceedings are required to be quashed and they are to be deported back to their country of origin.

11. The facts are not in dispute. The only issue is as to whether at this stage it can be said from the material on record that the petitioners have committed any particular offence requiring their detention and/or prosecution ?

12. Merely because during the course of fishing, due to unforeseen circumstances and acts of nature if their Vessels were to drift into the maritime Zone of a particular country, it cannot strict sensu be said that there is any offence made out against them requiring their incarceration and/or criminal trial.

13. These are common occurrences which happen to all fishermen fishing in the international waters. Many a times it is seen that fishermen of our country have drifted into maritime zone of another country and sometimes action is taken against them and sometimes no action is taken against them. This being so, for the reason that unless there is a willful intent or motive associated with such act and/or any intent to commit any other offence, fishermen per se ought not to be prosecuted for just drifting into a maritime zone of another country.

Petition allowed.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Bhaven Construction vs. Executive Engineer Sardar Sarovar Narmada Nigam Ltd.&Anr. Civil  Appeal 14665 of 2015 decided on 06/01/2021

Judgment Link:

Click to access 38547_2012_32_1501_25240_Judgement_06-Jan-2021.pdf

Relevant paragraphs: 10. Having heard both parties and perusing the material available on record, the question which needs to be answered is whether the arbitral process could be interfered under Article 226/227 of the Constitution, and under what circumstance?

17. In any case, the hierarchy in our legal framework, mandates that a legislative enactment cannot curtail a Constitutional right. It is therefore, prudent for a Judge to not exercise discretion to allow judicial interference beyond the procedure established under the enactment. This power needs to be exercised in exceptional rarity, wherein one party is left remediless under the statute or a clear ‘bad faith’ shown by one of the parties. This high standard set by this Court is in terms of the legislative intention to make the arbitration fair and efficient.

20. Viewed from a different perspective, the arbitral process is strictly conditioned upon time limitation and modeled on the ‘principle of unbreakability’. If the Courts are allowed to interfere with the arbitral process beyond the ambit of the enactment, then the efficiency of the process will be diminished.

26. In view of the above reasoning, we are of the considered opinion that the High Court erred in utilizing its discretionary power available under Articles 226 and 227 of the Constitution herein.

Compiled by Sumana Chamarty, Advocate, Daksha Legal.

Kirti & Anr. Etc  vs. Oriental Insurance Company Ltd. CIVIL APPEAL NOS.19­20 of 2021, [Arising out of Special Leave Petition(C) Nos.18728­29 of 2018] decided on 05/01/2021.

Judgment Link: https://main.sci.gov.in/supremecourt/2018/16762/16762_2018_32_1501_25229_Judgement_05-Jan-2021.pdf

Relevant paragraphs: 16. Returning to the question of how such notional income of a homemaker is to be calculated, there can be no fixed approach. It is to be understood that in such cases the attempt by the Court is to fix an approximate economic value for all the work that a homemaker does, impossible though that task may be. Courts must keep in mind the idea of awarding just compensation in such cases, looking to the facts and circumstances [See  R.K. Malik v. Kiran Pal, (2009) 14 SCC 1].

19. However, it must be remembered that all the above methods are merely suggestions. There can be no exact calculation or formula that can magically ascertain the true value provided by an individual gratuitously for those that they are near and dear to. The attempt of the Court in such matters should therefore be towards determining, in the best manner possible, the truest approximation   of   the   value   added   by   a   homemaker   for   the purpose of granting monetary compensation.

20. Whichever method a Court ultimately chooses to value the activities of a homemaker, would ultimately depend on the facts and circumstances of the case.  The Court needs to keep in mind its duty to award just compensation, neither assessing the same conservatively,   nor   so   liberally   as   to   make   it   a   bounty   to claimants [National   Insurance   Company   Limited   v.   Pranay Sethi, (2017) 16 SCC 680;  Kajal v. Jagdish Chand, (2020) 4 SCC 413].

25. When it comes to the second category of cases, relating to notional income for non­earning victims, it is my opinion that the above principle applies with equal vigor, particularly with respect to homemakers. Once notional income is determined, the effects of inflation would equally apply. Further, no one would ever say that the improvements in skills that come with experience do not take place in the domain of work within the household. It is worth noting that, although not extensively discussed, this Court has been granting future prospects even in cases pertaining to notional income, as has been highlighted by my learned brother, Surya Kant, J., in his opinion [Hem Raj v. Oriental Insurance Company Limited, (2018) 15 SCC 654; Sunita Tokas v. New India Insurance Co. Ltd., (2019) 20 SCC 688].

26. Therefore,   on   the   basis   of   the   above,   certain   general observations can be made regarding the issue of calculation of notional   income   for   homemakers

b. Taking into account the gendered nature of housework, with an overwhelming percentage of women being engaged in the same as compared to men, the fixing of notional income of a homemaker   attains   special   significance.   It   becomes   recognition   of   the   work,   labour   and   sacrifices   of homemakers and a reflection of changing attitudes. It is also in furtherance of our nation’s international law obligations and our constitutional vision of social equality and ensuring dignity to all.

Compiled by Sumana Chamarty, Advocate, Daksha Legal

• M.N. Chinnaiah and another vs State of Karnataka. Criminal Appeal 693/2010 decided on 15 December 2020.
• Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/356594/1/CRLA693-10-15-12-2020.pdf
• Relevant paragraphs: 32. In the  case  of  ‘Alamgir  Vs. State [NCT, DELHI]’ [supra] it is held by the Hon’ble Apex Court that ‘experts opinion must always received with great caution and perhaps none so with more caution than the opinion of the handwriting expert. There is a profusion of presidential authority which holds that it is unsafe to base a conviction solely on experts opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. It would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence’.
• 38. In the case of ‘Chennadi Jalapathi Reddy Vs. Baddam Pratapa  Reddy  [dead]  through  legal  representatives   and   another’ [supra], relied upon by the respondent’s counsel it is once again held that the Court must be cautious while evaluating experts opinion, which is a weak type of evidence and not substantive in nature. It may not be safe to solely rely upon such evidence, and Court may seek independent and reliable corroboration in the facts of a given case, as a general rule of prudence.
• Conviction set aside
• Compiled by S. Basavaraj, Advocate, Daksha Legal