The Bench and the Bar

The term of all members of the Bar Council of Maharashtra and Goa ended last week (2 December) with the Goa advocate general Atmaram Nadkarni having been appointed as chairman of the bar council.

In a setback to Congress chief Sonia Gandhi and vice president Rahul Gandhi, the Delhi high court on Monday dismissed their plea to quash summons issued to them by a trial court on BJP leader Subramanian Swamy’s complaint in the National Herald case.

Justice Sunil Gaur dismissed their pleas which means the Gandhis will have to appear before the trial court in the case.

“This court is of the considered view that the gravity of the allegations levelled against petitioners has a fraudulent flavour involving a national political party and so, serious imputations smacking of criminality levelled against petitioners need to be properly looked into,” said the court.

“Without casting any reflection on the merits of this case and while leaving the larger questions raised in these petitions open, to be considered at the charge stage, these petitions and the pending applications are dismissed with afore-noted clarification.”

Apart from the Gandhis, the court also dismissed the pleas of Congress treasurer Motilal Vora, family friend Suman Dubey and party leader Oscar Fernandes who had moved the high court for quashing of summons to them by the trial court.

On 26 June, the trial court issued summons to the Congress leaders on Swamy’s complaint about “cheating” in the acquisition of Associated Journals Ltd. (AJL) by Young India Ltd. (YIL) - “a firm in which Sonia and Rahul Gandhi eac h own a 38 percent stake”.

Senior advocate Kapil Sibal, who had appeared for Sonia Gandhi, sought quashing of the proceedings initiated by the lower court against her and the others, saying that the complaint made by Swamy against them were only “allegations without any supporting proof”.

He had said there was no illegality in Young India Ltd. (YIL) taking over Associated Journals Ltd. (AJL), the publisher of the now-defunct National Herald newspaper, as per the Companies Act.

Swamy had claimed that Sonia and Rahul Gandhi, as majority shareholders of YIL, benefited from the acquisition of AJL He alleged that AJL had received an interest-free loan of Rs 90.25 crore from the Congress and that the party transferred the debt to YIL for Rs 50 lakh.

At the time, AJL, which had Vora as its chairman, claimed that it could not repay the loan and agreed to transfer the company and its assets to YIL

Saying there are sufficient grounds to summon them, the high court said: “After having considered the entire case in its proper perspective, this court finds no hesitation to put it on record that the modus operandi adopted by petitioners in taking control of AJL via Special Purpose Vehicle i.e. YIL, particularly, when the main persons in Congress Party, AJL and YIL are the same, evidences a criminal intent.”

“Whether it is cheating, criminal misappropriation or criminal breach of trust is not required to be spelt out at this nascent stage. In any case, by no stretch of imagination, it can be said that no case for summoning petitioners as accused in the complaint in question is made out.

“Questionable conduct of petitioners needs to be properly examined at the charge stage to find out the truth and so, these criminal proceedings cannot be thwarted at this initial stage.”

Filing the plea in the high court, the Congress leaders had said Swamy was a political opponent and the present criminal proceedings were initiated only with an intent to secure an oblique political objective.

On 7 December 2015 20:21:32 GMT+05:30, “KIAN GANZ (Legally India)” <> wrote:>>>>-------- Original Message -------->From: Stories <>>Sent: 7 December 2015 19:50:04 GMT+05:30>To: >Cc: >Subject: National Herald case: HC dismisses Gandhis’ plea against>summons (Second Lead)>>>New Delhi, Dec 7 (IANS) In a setback to Congress chief Sonia Gandhi and>vice president Rahul Gandhi, the Delhi high court on Monday dismissed>their plea to quash summons issued to them by a trial court on BJP>leader Subramanian Swamy’s complaint in the National Herald>case.Justice Sunil Gaur dismissed their pleas which means the Gandhis>will have to appear before the trial court in the case.”This court is>of the considered view that the gravity of the allegations levelled>against petitioners has a fraudulent flavour involving a national>political party and so, serious imputations smacking of criminality>levelled against petitioners need to be properly looked into,” said the>court.”Without casting any reflection on the merits of this case and>while leaving the larger questions raised in these petitions open, to>be considered at the charge stage, these petitions and the pending>applications are dismissed with afore-noted clarification.”Apart from>the Gandhis, the court also dismissed>the pleas of Congress treasurer Motilal Vora, family friend Suman Dubey>and party leader Oscar Fernandes who had moved the high court for>quashing of summons to them by the trial court. On 26 June, the trial>court issued summons to the Congress leaders on Swamy’s complaint about>"cheating” in the acquisition of Associated Journals Ltd. (AJL) by>Young India Ltd. (YIL) - “a firm in which Sonia and Rahul Gandhi eac h>own a 38 percent stake”.Senior advocate Kapil Sibal, who had appeared>for Sonia Gandhi, sought quashing of the proceedings initiated by the>lower court against her and the others, saying that the complaint made>by Swamy against them were only “allegations without any supporting>proof”. He had said there was no illegality in Young India Ltd. (YIL)>taking over Associated Journals Ltd. (AJL), the publisher of the>now-defunct National Herald newspaper, as per the Companies Act.Swamy>had claimed that Sonia and Rahul Gandhi, as majority shareholders of>YIL, benefited from the>acquisition of AJL He alleged that AJL had received an interest-free>loan of Rs 90.25 crore from the Congress and that the party transferred>the debt to YIL for Rs 50 lakh.At the time, AJL, which had Vora as its>chairman, claimed that it could not repay the loan and agreed to>transfer the company and its assets to YIL Saying there are sufficient>grounds to summon them, the high court said: “After having considered>the entire case in its proper perspective, this court finds no>hesitation to put it on record that the modus operandi adopted by>petitioners in taking control of AJL via Special Purpose Vehicle i.e.>YIL, particularly, when the main persons in Congress Party, AJL and YIL>are the same, evidences a criminal intent.”"Whether it is cheating,>criminal misappropriation or criminal breach of trust is not required>to be spelt out at this nascent stage. In any case, by no stretch of>imagination, it can be said that no case for summoning petitioners as>accused in the complaint in>question is made out.”Questionable conduct of petitioners needs to be>properly examined at the charge stage to find out the truth and so,>these criminal proceedings cannot be thwarted at this initial>stage.”Filing the plea in the high court, the Congress leaders had said>Swamy was a political opponent and the present criminal proceedings>were initiated only with an intent to secure an oblique political>objective.Regards,IANS Support Team>>>>-- >Kian Ganz >Publishing Editor >Legally India - News for Lawyers >http://www.LegallyIndia.com > >Tel (India): +91 900 405 6651 >Twitter: http://twitter.com/legallyindia

The Himachal Pradesh high court dismissed a bunch of petitions filed against setting up of mobile towers on health grounds, citing lack of evidence connecting emissions from the towers to decrease in human health reported Times of India.

Division bench of Chief Justice Mansoor Ahmed Ali and Justice Tarlok Singh Chauhan pronounced the judgment and said that the allegations in the petition that electromagnetic fields cause harm to human health are misconceptions after studying various material put forward to them including research studies and earlier judgments in the matter.

Rajan S Mathews, director general, of the industry association Cellular Operator Association of India was quoted as saying, “We believe that this landmark order will debunk several myths propagated by certain groups.”

The Allahabad high court asked the state government to notify ‘heritage guidelines’ for the entire state including Varanasi in a Public Interest Litigation alleging illegal construction on heritage structures, reported Times of India.

The division bench comprising Chief Justice Dr Dhananjaya Yeshwant Chandrachud and Justice Dilip Gupta directed the amicus curiae to inspect the buildings at the ghats of Varanasi to ascertain the representation made by Varanasi Development Authority (VDA) on illegal constructions on ghats to the court.

Though the petitioner said that the illegal constructions around 300 meter perimeter of archeological structures are still rampant despite various orders of courts asking authorities to clear them, VDA contended that it has already issued notices to the buildings and has demolished the buildings found illegal.

The PIL was filed by Kautilya Society and a social activist Vrinda Dar and the court fixed 15 January 2016 as the next date of hearing.

The Madras high court stayed last month’s government order that had cancelled registration of NGO Greenpeace India, and observed that the Tamil Nadu Registrar of Societies (RoS) had failed to follow the principles of natural justice, reported Times of India.

According to the NGO, the court has granted an unconditional stay to the cancellation of it’s registration, which had happened for the sixth time in the last one and a half year as the NGO is being regularly targeted by various bodies. Legally India has covered various litigation matters of Greenpeace here, here and here.

Greenpeace India representative was quoted as saying, “We were confident the courts would agree that Greenpeace is on sound legal footing and has done nothing wrong, notwithstanding the government’s ridiculous allegations of fraud in this instance. Our accounts are an open book and on our website for all to inspect.”

The Supreme Court Bar Association (SCBA) has released its final list of candidates, after the phase of withdrawal of names is over. 

The Supreme Court today refused to entertain a petition seeking cancellation of bail of Bollywood star Salman Khan who was convicted and sentenced in a hit and run case.

A bench of Justice FMI Kalifulla and Justice Amitava Roy refused to entertain the plea saying the order of Bombay high court doesn’t require interference.

Khan was granted bail by the high court on the very day he was convicted and sentenced by the sessions court. The plea filed by Sushila Bai Himmat Rao Patil challenged the bail order.

The actor was on 6 May found guilty in the 28 September, 2002 hit and run case and sentenced to five years’ jail for various charges, including culpable homicide not amounting to murder. One person was killed and four injured when the actor’s car ran over them while they were sleeping on a pavement.

In August the Supreme Court had also dismissed a petition seeking cancellation of Khan’s bail.

Intellectual property cases are exempt from the recently initiatiated process of transfer of small cases from the Delhi high court to Delhi’s district courts, reported Mint.

Delhi high court justices GS Sistani and SD Sehgal gave a temporary order in favour of the Asian Patent Association, which had filed a [petition in the high court on 27 November, arguing thatintellectual property was an intangible asset whose value is not recorded in suits and should go to commercial courts even when they are valued at Rs 20 lakhs.

Therefore now despite the 24 November Delhi high court order to transfer all its cases which are valued at less than Rs 1 crore, to Delhi’s district courts, the IP cases will for the time being remain with the high court. The next date of hearing in APA’s case is 19 December.

The order is likely to be replaced by a law in the winter session of Parliament, added the Mint report.

Delhi’s district courts won the pecuniary jurisdiction tug of war with the Delhi high court this year.

Oral arguments in the sexual harassment case against Madhya Pradesh high court judge SK Gangele began today in the parliament, four months after the Supreme Court dismissed the allegations against him.

Legally India understands from sources close to the process that the upper legislative house - Rajya Sabha - is investigating under the Judicial Inquiry Act 1968 and the Judicial Inquiry Act 1969, the sexual harassment allegations made against Gangele by a female additional district and sessions judge at Gwalior. The complainant and Gangele have already made their written submissions in the case to the Rajya Sabha.

The Rajya Sabha has written to its vice president Hamid Ansari, requesting Gangele’s impeachment, reported the Indian Express. 58 members of the house, who were unhappy with the judicial probe into Gangele’s case, signed the impeachment request made to Hansari.

The accused judge at the Jabalpur bench of the Madhya pradesh high court has survived two judicial probes in this matter: one by the Madhya Pradesh high court and another by the Supreme Court. The courts had ruled that charges weren’t proved against him due to lack of sufficient evidence.

The grounds which Rajya Sabha is looking into are the same as inquired into earlier by the courts. The gounds were:

Sexual harassment of a woman Additional District and Sessions Judge of Gwalior while being a sitting judge of the Gwalior Bench of the high court of Madhya Pradesh Victimisation of the said Additional District and Sessions Judge for not submitting to his illegal and immoral demands, including, but not limited to, transferring her from Gwalior to Sidhi Misusing his position as the Administrative Judge of the high court of Madhya Pradesh to use the subordinate judiciary to victimise the said Additional District and Sessions Judge.

As Chief Justice of India (CJI), Justice HL Dattu appeared to be a man in a hurry. However, despite having held the office for a near eternity compared to many other recent CJIs, what he has managed to achieve as a judge and administrator in that time is questionable.

The escape of about 40 tonnes of methyl isocyanate (MIC) – a highly toxic chemical – from a storage tank on the premises of the pesticide plant of Union Carbide India Limited (UCIL) in Bhopal – the capital of the State of Madhya Pradesh – on the night of 02/03 December 1984 resulted in a horrendous disaster. Due to criminal negligence and utter callousness on the part of the plant management in taking adequate safety precautions, water and other impurities – that cause MIC to react violently – entered one of the MIC storage tanks resulting in exothermic reactions and forcing MIC and its reaction products to escape in the form of froth and lethal gases.

Justice Tirath Singh Thakur was on Thursday sworn in as the 43rd Chief Justice of India.