List of Current Affairs

Source: Bombay High Court

Why in News?

The Bombay High Court (HC) has held that a father can only be charged with kidnapping when he takes his minor child away from the mother if there is a court order that explicitly prohibits him from having custody of the child in the matter ABC v. XYZ.

What is the Background of the ABC v. XYZ Case?

• A First Information Report (FIR) was lodged at the instance of the biological mother, against the biological father.
  • It was alleged that the applicant father forcibly took away their minor son aged 3 years, and thus committed an offence of kidnapping.
• The father has applied to quash the FIR for the offence punishable under Sections 363 of the Indian Penal Code (IPC).
• The issue pertains to the fact that whether a father can be booked for the offence of kidnapping for taking away his minor child from the custody of the mother.
• The counsel for the applicant (father) submitted that:
  • The applicant being a father and natural guardian of a minor, he cannot be booked for the aforesaid offence.
  • The reliance was placed upon following case laws:
    • Ismail Aboobaker and ors v. State of Kerala (1967), Kerela High Court held that when a father takes his minor child from the custody of the mother, he is not taking the child out of the keeping of the lawful guardian.
    • Shri Ashok Kumar Seth v. State of Orissa (2002), the Orissa High Court ruled that the father cannot be prosecuted for removing his minor child from his wife's custody, as he is the child's natural guardian. Consequently, the offense described under Section 363 of the IPC does not apply to him.

What were the Court’s Observations?

• A division bench of HC comprising Justice Vinay Joshi and Justice Valmiki SA Menezes, quashed the FIR filed by the child's biological mother, which accused the father of forcibly taking their 3-year-old son registered under Sections 363 of the IPC.
• The court, while observing that it is not a case that the mother was lawfully given custody of the child by the order of a competent court, stated that “Therefore, in our view in absence of legal prohibition, a father cannot be booked for the offence of kidnapping of his own child”.

What are the Legal Provisions Involved?

• The IPC defines Kidnapping from lawful guardianship under Section 361 and punishes the same under Section 363.
  • Section 361 - Kidnapping from lawful guardianship - Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation - The words “lawful guardian” in this section includes any person lawfully entrusted with the care or custody of such minor or other person.

Exception - This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

• • Section 363 - Punishment for kidnapping - Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Source: Supreme Court

Why in News?

Recently, the Supreme Court has observed that if an accused takes undue advantage of a situation, then the accused won't be entitled to the application of exception 4 of Section 300 of Indian Penal Code, 1860 (IPC).

• The aforesaid observation was made in the matter of Anil Kumar v. State of Kerala.

What was the Background of Anil Kumar v. State of Kerala Case?

• In this case, the allegation is that the appellant, with the intention to kill his wife, lighted a matchstick and threw it upon her when she had already poured kerosene upon herself due to the quarrel with the appellant.
• After the death of the wife in the hospital, the husband was charged for the offences under Section 302 and Section 498A of the IPC.
• The appellant was convicted under Sections 302 and 498A of the IPC by both the Trial Court and the High Court.
• Thereafter an appeal was filed before the SC.
• Dismissing the appeal, the SC held that the appellant is guilty of the offence of culpable homicide amounting to murder.

What were the Court’s Observations?

• The bench comprising Justices Abhay S Oka and Pankaj Mithal observed that in the instant case, the appellant upon seeing the deceased drenched in kerosene clearly took advantage of the situation and lighted a matchstick and threw it upon her so that she can be burnt. The appellant having taken undue advantage of the situation cannot be extended the benefit of Exception 4 to Section 300 IPC.
• The Court further noted that the exception clearly in unequivocal term states that it would be applicable where culpable homicide is committed not only without premeditated mind in a sudden fight or quarrel but also without the offender taking undue advantage of the situation.

What is Exception 4 to Section 300 of IPC?

• Section 300 of IPC deals with Murder.
• Exception 4 to Section 300 of IPC that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
• Explanation to Exception 4 states that it is immaterial in such cases which party offers the provocation or commits the first assault.
• The following are the essential elements of Exception 4:
  • The fight must have taken place between the offender and the person who has been murdered.
  • Existence of a sudden fight.
  • In the excitement of heat of passion upon a sudden quarrel.
  • No undue benefit has been taken by the offender.
  • The offender does not act cruelly or differently.
• In the case of Amirthalinga Nadar v. State of Tamil Nadu (1976), the SC held that in the case of a sudden fight, where the disastrous blow was given as a part of the sudden fight that provokes out of a sudden quarrel between the appellants and deceased, there is no scope for premeditation. The appellant does not take unfair advantage and acted cruelly and unusually.

Source: Allahabad High Court

Why in News?

Recently, the Allahabad High Court in the matter of M/S Bajrang Trading Company v. Commissioner Commercial Tax & Anr., has held that under Article 226 of the Constitution of India, 1950 (COI), the allegations of violations of law cannot be dealt with in extraordinary jurisdiction of the Court unless the inherent lack of jurisdiction is claimed.

What was the Background of M/S Bajrang Trading Company v. Commissioner Commercial Tax & Anr. Case?

• The present allegation is with respect to the misuse of E-way Bills by the consignor i.e. M/s. Kay Pan Fragrances Pvt. Ltd. and M/s. Mahaveer Trading Co..
• An Adjudication notice was issued to the petitioner for tax period from August 2018 to March 2019 alleging petitioner’s involvement in misuse of E-way Bills.
• As per the submissions advanced by learned counsel for the petitioner that the entire proceedings have originated on the strength of certain survey conducted at the premises of M/s. Kay Pan Fragrances Pvt. Ltd. and M/s. Mahaveer Trading Co. in the month of July, 2019 whereas, the petitioner had surrendered its business registration prior to that survey in the month of May, 2019.
• Challenging the adjudication notice, a writ petition was filed before the Allahabad High Court.
• The High Court dismissed the writ petition.

What were the Court’s Observations?

• The bench comprising of Justices Saumitra Dayal Singh and Surendra Singh-I held that once allegations of infraction of law arise, adjudication proceeding may not be interjected in exercise of extra ordinary jurisdiction of the writ court. Limited scope of challenge may be preserved for cases involving inherent lack of jurisdiction or grounds of like nature.
• The Court further held that the allegations of violations of law cannot be dealt with in the extraordinary jurisdiction of the Court under Article 226 of the COI unless inherent lack of jurisdiction is claimed.

What is Article 226 of the COI?

• Article 226 is enshrined under Part V of the COI which puts power in the hand of the High Court to issue the writs.
• Article 226 states that -

(1) Notwithstanding anything in Article 32 every High Court shall have the powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favor such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause (2) of Article 32.

• This Article can be issued against any person or authority, including the government.
• This Article is merely a constitutional right and not a fundamental right.
• This article cannot be suspended even during an emergency.
• Article 226 is of mandatory nature in case of fundamental rights and discretionary nature when it is issued for any other purpose.
• Article 226 enforces not only a fundamental right, but also other legal rights.
• In Bandhua Mukti Morcha v. the Union of India (1984), the Supreme Court held that Article 226 has a much broader scope than Article 32 as Article 226 can be issued to safeguard legal rights as well.
• In Common Cause v. Union of India (2018), it was held by the Supreme Court that the writ under Article 226 can also be issued for the enforcement of public responsibilities by public authorities.