Meena R Poojary and others vs State of Karnataka and another. Criminal Petition 4993/2015 decided on 23 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346168/1/CRLP4995-15-23-10-2020.pdf

Relevant Paragraphs: 7. …It is necessary to consider whether the allegations made in the private complaint attract the offence under Section 498A and other offences alleged against them. In a decision reported in 2000(3) SCC 693 in the case of G.V.Rao vs. L.H.V Prasad and others, the Hon’ble Supreme Court in paragraph No.12 has held as under:

“12.  There     has     been      an      outburst     of matrimonial disputes in recent times. The marriage is a sacred ceremony, the main purpose of which is to enable  the  young couple to settle down in life and  live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are   also  involved  with  the  result  that  those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in  the  criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their “cases” in different courts.”

10. When the contents of the FIR and complaint are perused, it is apparent that there are no specific allegations that these petitioners have directly caused harassment to the complainant to get dowry and gold ornaments….Thus,  overlooking the fact borne out of experience that there is a tendency of involve the entire family members of the household in the domestic quarrel taking place in the matrimonial dispute as  observed in the decision of  the  Hon’ble  Supreme  Court  in the case of Geeta Mehrotra and another vs. State of Uttar Pradesh and another reported in (2012)  10  SCC  741.

12. In a decision reported in AIR 2003 SC 1386 in the case of B.S.Joshi and others vs. State of Haryana and another, the Hon’ble Supreme Court has observed in paragraph No.14 as under:

“14. There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband  and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper- technical view would be counter productive and would act against interests of  women  and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code.”

Criminal proceedings are quashed.

Compiled by S. Basavaraj, Advocate, Daksha Legal

M/s. Imperia Structures Ltd vs Anil Patni and another. Civil Appeal  3581-3590/2020. Decided on 2^nd November 2020. Justice Umesh Uday Lalit and Justice Vineet Saran

Judgment Link: https://main.sci.gov.in/supremecourt/2019/9796/9796_2019_34_1502_24555_Judgement_02-Nov-2020.pdf

HELD: On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint.

Relevant paragraphs. 25. Section 79 of the RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine. Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law, while in terms of Section 89, the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force.

26. On plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated in paragraph 22 hereinabove, would stand barred from invoking the jurisdiction of a Civil Court. However, as regards the allottees who can be called “consumers” within the meaning of the CP Act, two questions would arise; a) whether the bar specified under Section 79 of the RERA Act would apply to proceedings initiated under the provisions of the CP Act; and b) whether there is anything inconsistent in the provisions of the CP Act with that of the RERA Act.

27. In Malay Kumar Ganguli vs. Dr. Sukumar Mukherjee* , it was held by this Court:- “The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court. (See Bharat Bank Ltd. V. Employees* and Nahar Industrial Enterprises Ltd. vs. Hong Kong & Shanghai Banking Corpn* .

28. Proviso to Section 71(1) of the RERA Act entitles a complainant who had initiated proceedings under the CP Act before the RERA Act came into force, to withdraw the proceedings under the CP Act with the permission of the Forum or Commission and file an appropriate application before the adjudicating officer under the RERA Act. The proviso thus gives a right or an option to the concerned complainant but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act.

On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint.

 Compiled by: S.Basavaraj, Daksha Legal.

Securities Exchange Board of India vs Franklin Templeton Trustees Services Pvt Ltd & others . Writ Appeal 399/2020 and connected matters decided on 24 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/345451/1/WA399-20-24-10-2020.pdf

HELD: Para 236. A writ petition under Article 226 of the Constitution of India may be maintainable against a private body discharging public duty or positive obligation of public nature. A  writ of mandamus can be issued against a person or  a  body under a liability to discharge any function under any statute, to compel it to perform such a statutory function.   If a private body   or person violates the statutory provisions of the statute such as the Industrial Disputes Act, Minimum Wages Act, Factories Act, laws relating to environment, a writ would certainly be issued for compliance with those statutory provisions.

237. We may go back to the decision of the Apex Court in the case of Binny Ltd., and another –vs- V. Sadasivan and others (supra) wherein, in paragraph 11, the Apex Court held thus: “11. Judicial review is designed  to prevent the cases  of abuse of power and neglect of duty by public authorities. However, under our  Constitution,  Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the  governmental functions. Several corporations and companies have also been formed by the Government to run industries and to carry on trading activities. These have come to be known as public sector undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of  the  Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between public functions and private functions when they are being discharged by a purely private authority. A body is performing a “public function” when it seeks to achieve some collective benefit for the public or a section of the public and is accepted   by the public or that section of the public as  having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest.

238. In the case of Ramakrishna Mission and another –vs- Kago Kunya and others⁷⁷ the Apex Court has dealt with the question whether Ramakrishna Mission is a State, within the meaning of Article 12 of the Constitution of India.  In paragraph  32, the Apex Court held thus: “32. Before an organisation can be held to discharge  a public function, the function must be of a character that is closely related to functions which  are performed by the State in its sovereign capacity.  There is nothing on record to indicate that the hospital performs functions which are akin to those solely performed by State authorities. Medical services are provided by private as well as State entities. The character of the organisation as a public authority is dependent on the circumstances of the case. In  setting up the hospital, the Mission cannot be construed as having assumed a public function. The hospital has no monopoly status conferred or mandated by law. That it was the first in the State to provide service of a particular dispensation does not make  it  an  “authority”  within  the  meaning  of Article 226. State Governments provide concessional terms to a variety of organisations in order to attract them to set up establishments within the territorial jurisdiction of the State. The State may encourage them as an adjunct of its social policy or the imperatives of economic development. The mere fact that land had been provided on a concessional basis to the hospital would not by itself result in the conclusion that the hospital  performs  a  public  function.  In  the  present case, the absence of State control in  the  management of the hospital has a significant bearing on our coming to the conclusion that the  hospital  does not come within the ambit of a public authority.”

240. Thus, from the aforesaid decisions of the Apex Court, the position which emerges is that a writ of mandamus could be  issued against any private body or a person discharging a public duty or discharging positive obligation of public nature.  If  a  private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such private body or a person, the public law remedy under Article 226 of the Constitution of India can be invoked. A body is said to be performing a public function or duty when it seeks to achieve collective benefit to the general public or a section of the public  and it is accepted by the public or a section of the public having authority to do so. Moreover, a writ may be issued to a private body or private person when they fail to comply with  the  provisions of any statute which need to be complied with by all concerned, including a private company.  This is so because of  the language used by Article 226 of the Constitution of  India  which shows that a writ can be issued to any person or authority. Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not “State” within the meaning of Article 12 of the Constitution  provided the above tests are satisfied.

Hence, the High Court under Article 226 of the Constitution can exercise power  of  judicial review of the action of such a body.

Compiled by S. Basavaraj, Advocate, Daksha Legal

K. Venkatachalam v. A. Swamickan, (1999) 4 SCC 526

Relevant Paragraphs. 25. In the present case the appellant was not an elector in the electoral roll of Lalgudi Assembly Constituency. He, therefore, could not be elected as a Member from that constituency. How could a person who is not an elector from that constituency represent the constituency? He lacked the basic qualification under clause (c) of Article 173 of the Constitution read with Section 5 of the Act which mandated that a person to be elected from an Assembly constituency has to be an elector of that constituency. The appellant in the present case is certainly disqualified for being a Member of the Legislative Assembly of Tamil Nadu. His election, however, was not challenged by filing an election petition under Section 81 of the Act. The appellant knows he is disqualified. Yet he sits and votes as a Member of the Legislative Assembly. He is liable to penalty of five hundred rupees in respect of each day on which he so sits or votes and that penalty is recoverable as a debt due to the State. There has not been any adjudication under the Act and there is no other provision of the Constitution as to how penalty so incurred by the appellant has to be recovered as a debt due to the State. The appellant is liable to penalty nevertheless as he knows he is not qualified for membership of the Legislative Assembly and yet he acts contrary to law.

26. The question that arises for consideration is if in such circumstances the High Court cannot exercise its jurisdiction under Article 226 of the Constitution declaring that the appellant is not qualified to be a Member of Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. From the finding recorded by the High Court it is clear that the appellant in his nomination form impersonated a person known as “Venkatachalam, s/o Pethu” taking advantage of the fact that such a person bears his first name. The appellant would be even criminally liable as he filed his nomination on an affidavit impersonating himself. If in such circumstances he is allowed to continue to sit and vote in the Assembly his action would be a fraud on the Constitution.

27. In view of the judgment of this Court in the case of Election Commission of India v. Saka Venkata Rao8 it may be that action under Article 192 could not be taken as the disqualification which the appellant incurred was prior to his election. Various decisions of this Court, which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above, do not appear to apply to the case of the appellant now before us. Article 226 of the Constitution is couched in the widest possible terms and unless there is a clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one the bar of Article 329(b) will not come into play when the case falls under Articles 191 and 193 and the whole of the election process is over. Consider the case where the person elected is not a citizen of India. Would the court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution?

28. We are, therefore, of the view that the High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly with consequent restraint order on him from functioning as a Member of the Legislative Assembly. The net effect is that the appellant ceases to be a Member of Tamil Nadu Legislative Assembly. Period of the Legislative Assembly is long since over. Otherwise we would have directed Respondent 2, who is Secretary to Tamil Nadu Legislative Assembly, to intimate to the Election Commission that Lalgudi Assembly Constituency seat has fallen vacant and for the Election Commission to take necessary steps to hold fresh election from that Assembly constituency. Normally in a case like this the Election Commission should invariably be made a party.

29. When leave to appeal was granted to the appellant by this Court operation of the impugned judgment was suspended. Respondent 2 shall intimate to the State Government as to for how many days the appellant sat as a Member of the Legislative Assembly and it would be for the State Government to recover penalty from the appellant in terms of Article 193 of the Constitution.

30. This appeal is dismissed with costs.

Compiled by S. Basavaraj, Advocate, Daksha Legal

Karnataka Kaigarika Pradeshabhivruddi Mandali Parishista Jaati Parishista Pangada Matthu Hindulida Vargagala Noukarara Sangha (Regd) vs State of Karnataka and others. Writ Petition 33055/2019 decided on 8 May 2020. Justice G. Narendar.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/330792/1/WP33055-19-08-05-2020.pdf

HELD: The pre-requisite for issuance of a writ of quo- warranto is that the person against whom it is sought must hold an  independent,  substantive  public  office.

Relevant Paragraphs: 29. Judgment in (2006) 11 SCC 731 B. Srinivasa Reddy Vs. Karnataka Urban Water Supply & Drainage Board  Employees’ Assn. and Others noted. “Black’s Law Dictionary defines public office as under: “Public Office: Essential characteristics of “public  office”  are  (1)  authority  conferred  by law, (2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions  of Government; key element of such test is that “officer” is carrying out sovereign function. Spring v. Constantino. Essential elements to establish public position as “public office” are: position must be created by Constitution, legislature or through authority conferred by legislature, portion of sovereign power of Government must be delegated to position, duties and powers must be defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control or superior power other than law, and position must have some permanency and continuity, State v. Taylor.

31. On a close examination of the law laid down by the Hon’ble Apex Court and as set out by the Division Bench, it is apparent that the petition is required to comply with certain pre-requisites before the High Court endeavours to issue a writ of quo-warranto. As held by the Division Bench the pre-requisite for issuance of a writ of quo- warranto is that the person against whom it is sought must hold an  independent,  substantive  public  office.

The post in question, can by no stretch of imagination be equated with an independent and substantive public office as the post.

Writ Petition Dismissed.  

Compiled by S.Basavaraj, Advocate, Daksha Legal.

Chandrashekara vs State of Karnataka. Criminal Appeal 1574/2015 decided on 29 October 2020. Justice B. Veerappa and Justice K. Natarajan.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346192/1/CRLA1574-15-23-10-2020.pdf

HELD: 34. …..Though the confession statement is inadmissible in evidence if it is made before the Investigating officer  during investigation while in custody, but the confession statement made before PW.1 as well as PW.13 was used  by the Police and PW.1, as information for the purpose of lodging the complaint and registering the case against the accused, which is permissible.

35. In the case of Faddi vs. The State of  Madhya Pradesh reported in 1964 AIR  1850  the Hon’ble Apex Court has held as under: “When the person lodging the FIR is subsequently accused of the offence, it is an admission of certain facts which have a bearing on the question to be determined by the Court. Not being a confession, nor a statement made to a Police Officer in the course of  investigation, its admissibility is not barred either by Section 25 or Section 162 of Cr.P.C.”

36. In the case of Phillips vs. State of Karnataka reported in 1980 Crl.L.J 171 (Kant), the Co-ordinate Bench of this Court has held as under: “In the case of information given by the accused is confessional in character, it has to  be looked into to decide whether any part of it would be admissible as first information setting the criminal law in motion.”

Compiled by S. Basavaraj, Advocate, Daksha Legal

Label on package of food. Bar Code on package having relevant information regarding lot/code/batch identification, which can be identified by bar score scanner is a sufficient compliance. Prevention of Food Adulteration Rules 1955.

Raghav Gupta vs State (NCT of Delhi) and another
(2020) 8 SCC 120

Corporate Laws. National Company Law Tribunal has no jurisdiction to decide succession issues. A dispute as regards right of inheritance between the parties is eminently a civil dispute and cannot be said to be a dispute as regards oppression of minority shareholders by the majority shareholders or mismanagement.

Aruna Oswal vs Pankaj Oswal (2020) 8 SCC 79.

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Daksha Legal Short Notes of Cases

Chandrashekara vs State of Karnataka. Criminal Appeal 1574/2015 decided on 29 October 2020. Justice B. Veerappa and Justice K. Natarajan.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346192/1/CRLA1574-15-23-10-2020.pdf

Tofan Singh vs State of Tamil Nadu. Criminal Appeal 152/2013 decided on 29 October 2020. (Majority view) Justice R.F.Nariman, Justice Navin Sinha and Justice Indira Banerjee.

Judgment Link: https://main.sci.gov.in/supremecourt/2012/26682/26682_2012_33_1501_24551_Judgement_29-Oct-2020.pdf