List of Current Affairs

Source - Bombay High Court

Why in News?

Recently, in the case of Bablu Jumman Shaikh v. State of Maharashtra, the Bombay High Court has granted anticipatory bail to a lawyer accused of raping his client, observing that the relationship appeared consensual.

Background

• The Applicant and the first informant got acquainted with each other in the month of January 2023.
• The first informant claims that the Applicant who is a lawyer by profession, was helping her with her litigation.
• He represented to her that he was unmarried and had sexual intercourse with her without her consent on a false promise of marriage.
• In March 2023, the first informant lodged the First Information Report (FIR) under Section 376 of the Indian Penal Code, 1860 (IPC).
• The Court granted him anticipatory bail on an application under Section 438 of the Criminal Procedure Code, 1973 (CrPC).

Court’s Observations

• Justice Anuja Prabhudessai observed that the material on record particularly WhatsApp chats, messages, prima facie indicate that the first informant was in constant contact with the Applicant not only after the alleged date of the incident but even after lodging the FIR i.e., even after knowing that he is a married man.
• The Court further added that prima facie, the relationship appears to be consensual.

Legal Provisions

Section 376, IPC

• Section 376 deals with the punishment for rape.
• The punishment for committing rape is rigorous imprisonment for ten years which may extend to life Imprisonment and a fine.
• The offence under section 376 IPC is non-bailable and cognizable.
• By virtue of Criminal Amendment Act, 2013, the following amendments were made in Section 376 of IPC.
• Section 376A was inserted which states that if a person has committed the offence of rape, which resulted in her death, or being in a vegetative state or injured, then he shall be punished with imprisonment of 20 years, which may extend to life imprisonment.
• Section 376B was inserted and as per this section if a husband is guilty of raping his wife after their separation, he will be imprisoned for 2 to 7 years and a fine.
• Section 376C was inserted which states that if a person in any authority commits rape, then the person will be punished with imprisonment of a minimum of five years, which may extend to 10 years and a fine.
• Section 376D was inserted which provides for punishment for gang rape is 20 years which may extend to life Imprisonment.
• Section 376E was added which states that second convictions for rape will lead to life imprisonment.
• The following amendments were made in Section 376 by virtue of the Criminal Amendment Act, 2018.
  • The minimum punishment for rape of a woman was increased from 7 years to 10 years.
  • Rape of a girl below the age of 16 years will carry the minimum punishment of 20 years, which can be extended to life imprisonment.
  • Section 376AB was inserted, which states that rape of a girl below the age of 12 years will carry the minimum punishment of 20 years, which can be extended to life imprisonment or death penalty.
  • Section 376DA was inserted, which states that in case of gang rape of a girl under the age of 16 years, the punishment will be of a life sentence.
  • Section 376 DB states that in case of gang rape of a girl below the age of 12 years, the punishment will be life sentence or death.
• Section 375 of IPC defines rape, and it includes all forms of sexual assault involving non-consensual intercourse with a woman.
• This provision, however, lays down two exceptions as well.
  • Apart from decriminalizing marital rape, it mentions that medical procedures or interventions shall not constitute rape.
  • Exception 2 of Section 375 of the IPC states that “sexual intercourse by a man with his wife, and if the wife not being under fifteen years of age, is not rape”.
• In Vijay Jadhav v. State of Maharashtra and Anr. (The shakti mills Rape Case) (2013), the Bombay High Court declared Section 376E of the IPC, as constitutionally valid.
• In Mukesh & Anr. v. State for NCT of Delhi & Ors. (The Nirbhaya Case) (2017), the Supreme Court upheld the death penalty awarded to the accused and stated that the case fell under the “rarest of rare” category. This incident brought the 2013 criminal law amendment.

Section 438, CrPC

• Section 438 of CrPC deals with the provision of Anticipatory Bail.
• Under Anticipatory Bail, an accused can apply for bail before being arrested.
• It is issued by the Sessions Court and the High Court.
• This bail is discretionary, and the court may grant bail after considering the nature and gravity of the offence.
• The Anticipatory Bail can have any of the following conditions as mandated by the CrPC, 1973:
  • The applicant would make himself available for interrogation as and when needed, meaning he would cooperate with the investigations.
  • The applicant would not induce, threaten or dissuade any witness.
  • The applicant would not leave India without prior permission of the court.
  • Any other condition like bail bond/ not being in vicinity/ not contacting complainant/ witness which the court may deem fit.
• Sec. 437(5) & Sec. 439 of CrPC deal with the cancellation of anticipatory Bail. The Court is empowered to cancel the bail or recall the order related to bail upon appropriate consideration of facts.
• In Gurbaksh Singh Sibbia v. State of Punjab (1980), the Supreme Court ruled that Sec. 438(1) of CrPC should be interpreted in the light of Article 21 (protection of life and personal liberty) of the Constitution. The Court also held that granting of anticipatory bail as a matter of right of an individual should not be limited by time.
• In Salauddin Abdulsamad Shaikh v. State of Maharashtra (1995), the Supreme Court overruled its earlier judgment and held that granting of anticipatory Bail should be limited by time.
• In Sushila Aggarwal and others v. State (NCT of Delhi) (2020), the Apex Court held that Anticipatory bail as a general rule will not be limited to a fixed period of time.

Source: Bombay High Court

Why in News?

The Bench comprising of Justice Manish Pitale observed the issue, of whether the specific mandate of the amended Order XI of the Code of Civil Procedure, 1908 (CPC) applicable to a proposal for amendment of the plaint.

• The Bombay High Court (HC) gave the observation in the matter of Khanna Rayon Industries Pvt. Ltd. v. Swastik Associates & Ors.

Background

• The Bombay HC heard an application of amendment in a commercial suit seeking to place on record documents that were admittedly in the power, custody, control or possession of the Plaintiff at the time of filing of the suit.
• The Applicant /Plaintiff sought the aforementioned amendment of the plaint in terms of one of the two exhibits that were submitted with the plaint.
  • As per the proposed amendment in the second Exhibit, the plaintiff sought to place two documents on record.
• The defendant raised an objection to the proposed amendment contending that documents could not be introduced without adhering to the requirements of amended Order XI of the CPC, as amended by the Commercial Courts Act, 2015.
• The plaintiff contended that the proposed amendment was within the ambit of Order VI Rule 17 of the CPC as the Commercial Courts Act, 2015 brought specific amendments in the CPC but VI Rule 17 was not amended.
• Plaintiff asked court to adopt a liberal approach and allow the amendment to determine the real question in dispute.

Court’s Observations

• The Court observed that “It cannot be said that the rigors introduced in procedural law i.e., the CPC as per the Commercial Courts Act can be ignored because Order VI Rule 17 of the CPC has not been amended in the context of commercial suits”.
• The Court further noted that “An application, which in pith and substance is an application relatable to Order XI of the CPC, as applicable to commercial suits, can masquerade as an application for amendment under Order VI Rule 17 of the CPC”.

Amendment of Pleadings

• According to Order VI Rule 1 of the CPC, "Pleading", shall mean a plaint or written statement, which includes all the details required by a party to comprehend the contentions of the other party.
• An amendment of pleading under CPC can be performed under Order VI Rule 17.
• The first part of the rule gives discretionary power to the court by stating it ‘may’ allow an application for amendment to determine the real question in the dispute.
• The second part makes it mandatory for the court to allow the application if it finds that the parties could not have raised the issue in spite of the due diligence before the commencement of the trial.
  • The second part as proviso was added to Order VI Rule 17 was added in year 2002.
• In Salem Advocate Bar Association, Tamil Nadu v. Union of India & Ors. (2005), the Supreme Court has held that the object of adding the proviso is to prevent frivolous applications which are filed to delay the trial.

Cardinal Principles

Hon'ble Supreme Court in the matter of Revajeetu Builders and Developers v. Narayanaswamy & Sons (2009) laid down some basic principles for allowing or rejecting the application under Order VI Rule 17:

1. Whether the amendment sought is imperative for proper and effective adjudication of the case?
2. Whether the application for amendment is bona fide or malafide?
3. The amendment should not cause such prejudice to the otherside which cannot be compensated adequately in terms of money;
4. Refusing amendment would in fact lead to injustice or lead to multiple litigation;
5. Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and
6. As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

Legal Provisions

• Order VI Rule 17 of CPC - Amendment of Pleadings: The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
  • Provided that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
• Order XI 1(5) of CPC – The plaintiff shall not be allowed to rely on documents, which were in the plaintiff's power, possession, control or custody and not disclosed along with plaint or within the extended period set out above, save and except by leave of Court and such leave shall be granted only upon the plaintiff establishing reasonable cause for non-disclosure along with the plaint.

Source: Times of India

Why in News?

The Chief Minister of Assam, Himanta Biswa Sarma has stated that the State Government would enact legislation to ban polygamy under Islamic Law.

Background

• Assam Government has constituted a four-member committee headed by retired Guwahati High Court Judge Rumi Phukan to examine the competence of the state legislature to enact such a law and submit a report within 60 days.
• The committee said that Marriage and Divorce are subjects of Concurrent List, the state enacted law would be enforceable in state only after receiving the Presidential assent.
• It was further stated that polygamy infringes Fundamental Rights guaranteed to Islamic women under Article 14,15,21 of the Constitution of India, 1950 (COI).
• Further observation of the committee was that polygamy is permitted but is it not a mandatory practice as it does not form part of essential religious practices of Islam hence law enacted in like nature would not infringe Article 25 of the COI but is protected by Muslim Personal (Shariat) Act 1937.
• Polygamy was abolished among Hindus, Buddhists and Sikhs after the enactment of the Hindu Marriage Act, 1955 (HMA).
• Polygamy is banned among Christians by the Christian Marriage Act, 1872 and among Parsis by the Parsi Marriage and Divorce Act, 1936, however, polygamy continues to be practiced by Muslims because of the protection by the Muslim Personal Laws (Shariat) Act 1937.
• The Committee remarked that the Supreme Court has time and again suggested the legislature to act on the Directive Principles of State Policy (DPSP) under Article 44 of COI emphasizing on the desirability of Uniform Civil Code (UCC).

Polygamy

• “Polygamy is the fact or custom of being married to more than one person at the same time. “
• Marriage under Islamic Law or Nikah, is not a sacrament (as in Hinduism), but a civil contract between a man and woman to live as husband and wife.
• Muslim Marriage is entered into by both the parties by their free will as in its formation it takes the form of contract as there is an offer (Ijab) and acceptance (Qubul) between the parties.

Shariat Law

• According to Section 494 of the Indian Penal Code, 1860 bigamy is a criminal offence whereas Section 2 of the Shariat Act allows the application of polygamy on Muslims.
• Muslims in India are subject to the terms of Muslim Personal Law Application Act (Shariat) of 1937, interpreted by the All-India Muslim Personal Law Board.
• Muslim women aren't permitted to practice polygamy which brings about discretionary and preposterous order exclusively dependent based on religion and sex.

Section 2 - Application of Personal law to Muslims - Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

Constitution of India, 1950

• Article 14 is a synthesis of the two principles, equality before the law and equal protection of the laws.
  • Article 14 - Equality before law — The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
• Article 15(1) mentions that no discrimination shall be made by the state on the basis of gender and is mentioned as follows:
  • Article 15 - Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth — (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
• Article 25 protects religious faith and not a practice which may run counter to public order, health or morality.
  • Article 25 - Freedom of conscience and free profession, practice and propagation of religion -

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II. —In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

• Article 44 in the DPSP, of the Constitution, states that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. The UCC aims to establish a uniform legal framework for all citizens, regardless of their religion.
• Concurrent List - List-III (Seventh Schedule) is a list of 52 items in total. It includes the power to legislate laws by both the Union and State Government.

Case Laws in which Supreme Court Emphasized the Importance of UCC

• Mohd. Ahmad Khan v. Shah Bano Begum (1985)
  • The Supreme Court ruled in favour of a divorced Muslim woman in regard to her entitlement to maintenance under section 125 of the Criminal Procedure Code, 1973. Further, it recommended that a UCC be set up.
• Sarla Mudgal v. Union of India (1995)
  • The question was whether a Hindu husband married under the Hindu law, by embracing Islam, can he solemnize a second marriage? The Supreme Court held that a change of religion does not permit a person to defeat the provisions of law and to commit bigamy.

Note:

• Recently, 22^nd Law Commission of India has chosen to seek the opinions and suggestions of the general public as well as recognised religious organizations regarding the UCC.
• Law Commission of India (2018): It stated that UCC is neither necessary nor desirable at this stage, as it would be counter-productive for the harmony of the nation.
• It also suggested that reforms in personal laws should be made by amendments and not by replacement.

Source: Bombay High Court

Why in News?

The Bench comprising of Justice G. S. Kulkarni and Justice Jitendra Jain of Bombay High Court has held if the appeal is defective, any adjudication on merits is not permissible by the Appellate Authority and would be without jurisdiction.

• The court laid the observation in a writ petition of JEM Exporter v. Union of India.

Background

• The Petitioner was engaged in the business of exporting mobile handsets.
  • The Petitioner was registered under the Central Goods and Services Tax Act, 2017 (CGST) as a sole proprietor.
• The Petitioner made an application for a refund of Input Tax Credit (ITC) on export of goods and services.
• Instead of dealing with the refund claim, summons under section 70 of the CGST Act was served on the Petitioner to conduct an inquiry about contravention of provisions of the CGST Act and the Rules.
• Later, a show cause notice under Section 74 came to be issued on the ground that the petitioner purchased goods from a non-existent supplier, it was a case of fake ITC.
• Subsequently, an order was passed levying penalty on the petitioner.
• An appeal was filed against the order.
• While hearing the appeal the Commissioner observed that the filing of a certified copy of the order against which the appeal is filed has not been duly complied.
  • Therefore, the Commissioner (Appeal) held that the appeal is to be rejected on this ground itself.

Court’s Observation

• The Court observed that any adjudication on merits will infringe the principles of Natural Justice if appeal is defective on the ground of no proof of pre-deposit, failure to file certified copy of the order and the appeal not having been authenticated as per CGST Rules.

Certified Copy

• A certified copy is a true copy of a public or vital document having an endorsement that it is true copy of that primary document.
• Section 76 of the India Evidence Act, 1872 (IEA) describes the certified copies as a true copy of a public document sealed and signed by a public officer.
• Under Section 79 of IEA, the Court shall presume [to be genuine] every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer.

Principles of Natural Justice

• The concept of natural justice has evolved from English common law to establish fairness in the procedure.
• The principles of natural justice are based on the idea that every individual is entitled to unbiased treatment in the eyes of the law.
• It ensures that during the decision-making process no party’s rights are prejudiced.
• The two principles of natural justice are:
  • Nemo Judex In Causa Sua which means no man shall be a judge in his own cause.
  • Audi Alteram Partem which means hear the other side or give equal opportunity to be heard.

Legal Provision

• Section 76 of IEA - Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.
  • Explanation.—Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have custody of such documents within the meaning of this section.