CBI to investigate death of Sushant Singh Rajput.

Jurisdiction of Bihar Police:

Having regard to the law enunciated by this Court as noted above,it must be held that the Patna police committed no illegality in registering the Complaint. Looking at the nature of the allegations in the Complaint which also relate to misappropriation and breach of trust, the exercise of jurisdiction by the Bihar Police appears to be in order. At the stage of investigation,they were not required to transfer the FIR to Mumbai police.For the same reason, the Bihar government was competent to give consent for entrustment of investigation to the CBI and as such the ongoing investigation by the CBI is held to be lawful.

CBI investigation of murder:

While the steps taken by the Mumbai police in the limited inquiry under Section 174 CrPC may not be faulted on the material available before this Court,considering the apprehension voiced by the stakeholders of unfair investigation, this Court must strive to ensure that search for the truth is undertaken by an independent agency, not controlled by either of the two state governments. Most importantly, the credibility of the investigation and the investigating authority, must be protected.

The ongoing investigation by the CBI is held to be lawful.In the event a new case is registered at Mumbai on the same issue, in the fitness of things, it would be appropriate if the latter case too gets investigated by the same agency, on the strength of this Court’s order. Such enabling order will make it possible for the CBI to investigate the new case,avoiding the rigors of Section 6 of the DSPE Act,requiring consent from the State of Maharashtra.

Directions for murder:

Because both states are making acrimonious allegations of political interference against each other, the legitimacy of the investigation has come under a cloud. Accusing fingers are being pointed and people have taken the liberty to put out their own conjectures and theories. Such comments,responsible or otherwise, have led to speculative public discourse which have hogged media limelight. These developments unfortunately have the propensity to delay and misdirect the investigation. In such situation,there is reasonable apprehension of truth being a casualty and justice becoming a victim.

The actor Sushant Singh Rajput was a talented actor in the Mumbai film world and died well before his full potential could be realised. His family, friends and admirers are keenly waiting the outcome of the investigation so that all the speculations floating around can be put to rest. Therefore a fair, competent and impartial investigation is the need of the hour. The expected outcome then would be, a measure of justice for the Complainant, who lost his only son. For the petitioner too, it will be the desired justice as she herself called for a CBI investigation. The dissemination of the real facts through unbiased investigation would certainly result in justice for the innocents, who might be the target of vilification campaign. Equally importantly, when integrity and credibility of the investigation is discernible, the trust, faith and confidence of the common man in the judicial process will resonate. When truth meets sunshine, justice will not prevail on the living alone but after Life’s fitful fever, now the departed will also sleep well.

Satyameva Jayate.

In such backdrop, to ensure public confidence in the investigation and to do complete justice in the matter, this Court considers it appropriate to invoke the powers conferred by Article 142 of the Constitution. As a Court exercising lawful jurisdiction for the assigned roster, no impediment is seen for exercise of plenary power in the present matter. Therefore while according approval for the ongoing CBI investigation, if any other case is registered on the death of the actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death, the CBI is directed to investigate the new case as well. It is ordered accordingly.

Transfer petition of Rhea Chakrovarti dismissed.

Read full judgment here:

PM Cares Fund is legal

What is PM Cares Fund?

(Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund)

PM CARES Fund (Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund)  has been constituted as a public charitable trust. After outbreak of pandemic COVID-19, need of having a dedicated national fund with objective of dealing with any kind of emergency or distress situation, like posed by the COVID-19 pandemic, and to provide relief to the affected, a fund was created by constituting a trust with Prime Minister as an ex-officio Chairman of PM CARES Fund, with other ex-officio and nominated Trustees of the Fund. The PM CARES Fund consists entirely of voluntary contributions from individuals/organisations and does not get any Budgetary support. No Government money is credited in the PM CARES Fund.

After outbreak of pandemic COVID-19, need of having a dedicated national fund with objective of dealing with any kind of emergency or distress situation, like posed by the COVID-19 pandemic, and to provide relief to the affected, a fund was created by constituting a trust with Prime Minister as an ex-officio Chairman of PM CARES Fund, with other ex-officio and nominated Trustees of the Fund. The PMCARES Fund consists entirely of voluntary contributions from individuals/organisations and does not get any Budgetary support. No Government money is credited in the PM CARES Fund.

This PM Cares Fund has no connection with PMNRF Fund. PMNRF Fund was not subject to any consideration in this case, as popularity reported in the media. The plea was to transfer the fund to NDRF maintained under DM Act 2005. To know about PMNRF read here.

Conclusion by Supreme Court:

The PM CARES Fund has been constituted in the year 2020 after outbreak of pandemic COVID-19whereas the new guidelines came into force with effect from 2015-16, on which date the PM CARES Fund was not in existence, hence, the submission that new guidelines were amended to benefit the PM CARES Fund is wholly misconceived.

When the Centre is providing financial assistance to the State to take measures to contain COVID-19, as we have noticed above that by order dated 03.04.2020 first instalment of Rs.11,092/- crores which is the Central Share to the SDRMF has been given and there is nothing on record that any State has exceeded the expenditure in excess of the balance in the State’s SDRMF, there is no occasion of asking more fund by the State from NDRF.When the Central Government is providing financial assistance to the States to contain COVID-19 it is not for any PIL petitioner to say that Centre should give amount from this fund or that fund. The financial planning is in the domain of the Central Government, which financial planning is made after due deliberation and consideration. We, thus, do not find any substance in the submission of the petitioner that there is any statutory restriction/prohibition in utilization of NDRF forCOVID-19. More so when sub-section (2) of Section 46 specifically provides that NDRF shall be made available to the National Executive Committee to be applied towards meeting the expenses for emergency response, relief and rehabilitation in accordance with the guidelines laid down by the Central Government, the NDRF can be used for containment of COVID-19

It is for the Central Government to take the decision as from which fund what financial measures are to be taken and it is neither for PIL petitioner to claim that any financial assistance be made from particular fund nor this Court to sit in judgment over the financial decisions of the Central Government.

The PM CARES Fund is a public charitable trust and is not a Government fund. The charitable trusts are public trusts. The mere fact that administration of the Trust is vested in trustees, i.e., a group of people, will not itself take away the public character of the Trust.

The contributions made by individuals and institutions in the PM CARES Fund are to be released for public purpose to fulfill the objective of the trust. The PM CARES Fund is a charitable trust registered under the Registration Act, 1908 at New Delhi on 27.03.2020. The trust does not receive any Budgetary support or any Government money. It is not open for the petitioner to question the wisdom of trustees to create PM CARES fund which was constituted with an objective to extend assistance in the wake of public health emergency that is pandemic COVID-19.

We have noticed above that guidelines which were issued for constitution and administration ofNDRF and State’s SDRMF, the guidelines provided utilization of fund for limited calamities, which didnot include any biological and public healthemergency. We have already noticed Clause 3.1 of guidelines for administration of NDRF, which did not provide for the calamities which cover the biological and public health emergency. Thus, under the guidelines which were in existence with effect from financial year 2015-16 neither NDRF nor SDRF covered the biological and public health emergencies. It was only by notification dated 14.03.2020 that COVID-19was treated as notified disaster for the purpose of providing assistance under SDRF. Obviously prior to this notification dated 14.03.2020 no contribution by any person or institution in the NDRF could have been made with respect to specified disaster, namely, biological and public health emergency like COVID-19, Outbreak of COVID-19 in India as well as other countries of the World required immediate enhancement in the infrastructure of medical health and creation of fund to contain COVID-19. At this need of the hour no exception can be taken to the constitution of a public charitable trust, namely, PM CARES Fund to have necessary financial resources to meet the emergent situation.

 Prayers (a) to (c) made in the writ petition:
“a.Issue a writ, order or direction to the Union of India to prepare, notify and implement a National Plan under Section 11 read with Section 10 of the Disaster Management Act, 2005 to deal with the ongoing COVID-19 pandemic;

b.Issue a writ, order or direction to the Union of India to lay down minimum standards of relief, under Section 12of the Disaster Management Act, 2005,to be provided to persons affected bythe COVID-19 virus, as well as by the resultant national lockdown;

c.Issue a writ, order or direction to the Union of India to utilize NDRF for the purpose of providing assistance in the fight against GOVID-19 pandemic in compliance with Section 46 of the DMAct, all the contributions/grants from individuals and institutions shall be credited to the NDRF in terms of Section 46(1)(b) rather than to PM CARES Fund and all the fund collected in the PM CARES Fund till date may be directed to be transferred to the NDRF;”

Rejection of prayers by Supreme Court:

In view of the foregoing discussions, the prayer ‘a’ and ‘b’ made in the writ petition are refused.With respect to prayer ‘c’, we make it clear (i) that there is no statutory prohibition for the Union of India utilizing the NDRF for providing assistance in the fight of COVID-19 in accordance with the guidelines issued for administration of NDRF; (ii)there is no statutory prohibition in making any contribution by any person or institution in the NDRF as per Section 46(1)(b)of the Act, 2005.

Full Judgement

Supreme Court Collegium approves 6 new judges.

Supreme Court on 17th August has approved 6 names for elevation as judge in Delhi High Court. This is the statement issued by it:

“STATEMENT
The Supreme Court Collegium in its meeting held on 17th August,
2020, has approved the proposal for elevation of the following OF Advocates, as
Judges of the Delhi High Court:
1. Shri Jasmeet Singh,
2. Shri Amit Bansal,
3. Ms. Tara Vitasta Ganju
4 Shri Anish Dayal
5. Shri Amit Sharma, and
6. Ms. Mini Pushkarna.”

Suspension of sentence in appeal

Appellant in prison for four years:

In this case it is to be noted that marriage of the deceased with appellant was performed on 13.02.2005 and they were blessed with two children. Though initially case was registered under Sections 304B, 498A and 302, IPC, after investigation the appellant and his parents were charged under Sections 304B and498A, IPC. The parents of the appellant herein were discharged on an application and only appellant was tried for the offence under Sections 498A and 304B, IPC. It is also brought to our notice that the appellant is confined in jail from 15th December2016 onwards and further it is also brought to our notice that the father of the appellant was diagnosed with pancolitis.

Though learned senior counsel, by taking us to the findings recorded by the trial court, has submitted that no case is made out for the offence under Section 304B and he was erroneously convicted for offence under Section 304B as well as 498A, IPC, in view of the pendency of the appeal before the High Court, we do not wish to go into the merits of the matter at this stage.

Suspension of sentence:

However, considering the submissions made by the learned counsel and other material placed on record and further taking into account that the appellant is in jail since 15th December2016, we deem it appropriate that it is a fit case to suspend the sentence imposed on the appellant and to enlarge the appellant on bail, pending Criminal Appeal No.1325 of 2016 before the High Court.

Read full judgement here:

Prashant Bhushan Convicted for Contempt of Court.

Supreme Court convicts Prashant Bhushan:

Offensive tweets of Prashant Bhushan:

Supreme Court today convicted Prashant Bhushan, the perpetual Public interest litigator for contempt of Court. As per the orders of Supreme Court Prashant Bhushan had tweeted as under:

“CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice!”

(29th June 2020 at 11.37AM)

Another tweet was published in the Times of India which was made by Shri Prashant Bhushan on June 27, 2020, when he tweeted,

“When historians in future look back at the last 6 years to see how 3democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

Damage Caused by Tweet:

Indian judiciary is not only one of pillars on which the Indian democracy stands but is the central pillar.The Indian Constitutional democracy stands on the bedrock of rule of law. The trust, faith and confidence of 102the citizens of the country in the judicial system is sine qua non for existence of rule of law. An attempt to shake the very foundation of constitutional democracy has to be dealt with an iron hand. The tweet has the effect of destabilising the very foundation of this important pillar of the Indian democracy. The tweet clearly tends to give an impression,that the Supreme Court, which is a highest constitutional court in the country, has in the last six years played a vital role in destruction of the Indian democracy. There is no manner of doubt,that the tweet tends to shake the public confidence in the institution of judiciary. We do not want to go into the truthfulness or otherwise of the first part of the tweet,inasmuch as we do not want to convert this proceeding into a platform for political debate. We are only concerned with the damage that is sought to be done to the institution of administration of justice. In our considered view, the said tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law.

Continue reading “Prashant Bhushan Convicted for Contempt of Court.”

Civil Suit: Trial has to be de novo after return of plaint

Jurisdiction of Civil Court:

It is no more res­integra that in a dispute between parties where two or more courts may have jurisdiction, it is always open for them by agreement to confer exclusive jurisdiction by consent on one of the two courts. Clause 16B of the agreement extracted above leaves us in no doubt that the parties clearly indicated that it was only the court at Delhi which shall have exclusive jurisdiction with regard to any dispute concerning the franchise agreement and no other court would have jurisdiction over the same. In that view of the matter, the presentation of the plaint at Gurgaon was certainly not before a court having jurisdiction in the matter.

Continue reading “Civil Suit: Trial has to be de novo after return of plaint”

The Public interest litigator Prashant Bhushan in Contempt cross heir

Scandalizing the Court is contempt:

Prashant Bhushan, the Supreme Court lawyer who is famous for filing public interest litigation in Supreme Court on almost every matter and who has difficulty in hiding his political distaste for present regime has been issued notice of show cause over his two scandalous tweets.

Offending tweets of Prashant Bhushan:

Twitter has withheld the tweets of Prashant Bhushan but Prashant’s friend Yogendra Yadav has retweeted following screenshots of the offending tweets. This is the screen shot:

Read the full order:

Full Order:

Click to access 14323_2020_33_16_23062_Order_22-Jul-2020.pdf

Is hundred percent reservation in Government service permissible in law?

Validity of 100% reservation to the Scheduled Tribe candidates out of whom 33.1/3% shall be women for the post of teachers in the schools in the scheduled areas in the State of Andhra Pradesh.

(1) What is the scope of paragraph 5(1), Schedule V to the Constitution of India?

The Governor in the exercise of powers under Para 5(1), Fifth Schedule of the Constitution, can exercise the powers concerning any particular Act of the Parliament or the legislature of the State. The Governor can direct that such law shall not apply tothe Scheduled Areas or any part thereof. The Governor is empowered to apply such law to the Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify148in the notification and can also issue a notification with retrospective effect.

2(a) Does the provision empower the Governor to make a new law?

The Governor is empowered under Para 5(1), Fifth Schedule of the Constitution, to direct that any particular Act of Parliament or the Legislature of the State, shall not apply to a Scheduled Area or apply the same with exceptions and modifications.The Governor can make a provision within the parameters of amendment/ modification of the Act of Parliament or State legislature.The power to make new laws/regulations, is provided in Para 5(2),Fifth Schedule of the Constitution for the purpose mentioned therein,not under Para 5(1) of the Fifth Schedule to the Constitution of India.

(b) Does the power extend to subordinate legislation?

Continue reading “Is hundred percent reservation in Government service permissible in law?”

Mismanagement of Company and Oppression of Minority Shareholder: Locus

Family dispute about ownership of shares:

Merely disowning a son by late father or by the family, is not going to deprive him of any right in the property to which he may be otherwise entitled in accordance with the law. The pertinent question needs to be tried in a civil suit and adjudicated finally, it cannot be decided by NCLT in proceedings in question. Hence, we refrain from deciding the aforesaid question raised on behalf of the appellants in the present proceedings. In the facts and circumstances, it would not be appropriate to permit respondent No.1 to continue the proceedings for mismanagement initiated under sections 241 and 242, that too in the absence of having 10% shareholding and firmly establishing his rights in civil proceedings to the extent he is claiming in the shareholding of the companies.

Civil Dispute:

With regard to the dispute as to right, title, and interest in the securities, the finding of the civil Court is going to be final and conclusive and binding on parties. The decision of such a question has to be eschewed in instant proceedings.It would not be appropriate, in the facts and circumstances of the case, to grant a waiver to the respondent of the requirement under the proviso to section 244 of the Act, as ordered by the NCLAT.

We are of the opinion that the proceedings before the NCLT filed under sections 241 and 242 of the Act should not be entertained because of the pending civil dispute and considering the minuscule extent of holding of 0.03%, that too, acquired after filing a civil suit in company securities, of respondent no. 1. In the facts and circumstances of the instant case, in order to maintain the proceedings, the respondent should have waited for the decision of the right, title and interest, in the civil suit concerning shares in question.The entitlement of respondent No.1 is under a cloud of pending civil dispute. We deem it appropriate to direct the dropping of the proceedings filed before the NCLT regarding oppression and mismanagement under sections 241 and 242 of the Act with the liberty to file afresh, on all the questions, in case of necessity, if the suit is decreed in favour of respondent No.1 and shareholding of respondent No.1 increases to the extent of 10% required under section 244.

[Source: Aruna Oswal vs. Pankaj Oswal decided by SC on 6th July 2020]

“Booking” is a generic name which can not be registered as trademark

A generic name is the name of a class of products or services, is ineligible for trademark registration.

Booking.com, a travel-reservation website, sought federal registration of marks including the term “Booking.com.” USA Supreme Court Concluded that “Booking.com” was a generic name for online hotel-reservation services, not eligible to registration as Trademark.

Held: A term styled “generic.com” is a generic name for a class of goods or services only if the term has that meaning to consumers.

(a) Whether a compound term is generic turns on whether that term, taken as a whole, signifies to consumers a class of goods or services. The courts below determined, and the PTO no longer disputes, that consumers do not in fact perceive the term “Booking.com” that way. Because “Booking.com” is not a generic name to consumers, it is not generic.

Continue reading ““Booking” is a generic name which can not be registered as trademark”