The corporate insolvency resolution process (CIRP) of Lavasa Corporation took a dramatic turn on Friday as the National Company Law Tribunal (NCLT) at Mumbai rejected an application by Darwin Platform Infrastructure Ltd (DPIL), the successful resolution applicant, seeking assistance in acquiring the controversial planned city project in Pune. [Darwin Platform Infrastructure Ltd v. Union Bank of India and Ors]

A bench of Judicial member Kuldip Kumar Kareer and technical member Anil Raj Chellan while ordering the revival of the CIRP, directed the Committee of Creditors (CoC) to exclude the period from July 13, 2021, to January 3, 2022, from the resolution timeline and restored Shailesh Verma as the resolution professional (RP) of Lavasa Corporation.

Lavasa Corporation, promoted by Hindustan Construction Company (HCC), has faced numerous regulatory and financial hurdles since its inception. These issues culminated in its insolvency in August 2018, following a petition from Raj Infrastructure Development India Private Limited.

Since then, the bankruptcy proceedings have drawn in a variety of stakeholders including homebuyers, financial creditors, the Maharashtra State Electricity Distribution Company Ltd (MSEDCL) and property lessees, all of whom have raised objections and legal challenges throughout the process.

In July 2023, the NCLT approved DPIL’s ₹1,814 crore resolution plan for Lavasa Corporation, which included an upfront payment of ₹100 crore to be made within 90 days of the plan’s approval. However, DPIL failed to make the payment.

Subsequently, in April this year, ICICI Bank on behalf of creditors invoked guarantee worth ₹25 crore citing failure to implement the resolution plan and approached the tribunal seeking restoration of resolution process. DPIL too approached the insolvency court against the invocation of bank guarantee.

DPIL’s primary argument for its failure to implement the resolution plan revolved around Lavasa Corporation’s status as "active, non-compliant" in the Ministry of Corporate Affairs (MCA) records.

DPIL claimed this non-compliant status along with ongoing litigation created uncertainty and made it difficult to secure the necessary funds for the acquisition.

Despite these arguments, the tribunal found that DPIL had failed to raise these concerns during seven Monitoring Committee meetings where the company was repeatedly asked to make the required payments.

In its order, the tribunal expressed its dissatisfaction with DPIL, noting that the company “miserably failed to take any positive action to implement the approved resolution plan without any justifiable reasons.”

The court ruled that no purpose would be served by granting DPIL additional time, stating that further delays would “severely affect the interest of various stakeholders” and could make resolution impossible.

The NCLT's decision to revive the CIRP and reinstate Shailesh Verma as the RP signals the tribunal's intent to move forward with the resolution process after DPIL’s inaction stalled proceedings for over a year.

One of the key aspects of the tribunal’s ruling was the invocation of a ₹25 crore Performance Bank Guarantee (PBG) provided by DPIL. The tribunal found that DPIL’s failure to comply with the resolution plan's terms warranted the invocation of the PBG, which was subsequently encashed by Union Bank of India.

“Since the SRA [Successful Resolution Applicant] is blatantly and consciously responsible for the failure of implementation of the Approved Resolution Plan, its inevitable consequence is the invocation of PBG,” the NCLT said.

It concluded that the bank’s actions were lawful and justified.

The tribunal also rejected DPIL’s claim that Lavasa’s non-compliant status with the MCA was a legitimate reason for the delay in implementing the resolution plan. The tribunal highlighted that payment obligations under a resolution plan are unconditional and cannot be linked to the company’s MCA status or other external factors.

DPIL’s argument that ongoing litigation created uncertainty and prevented them from making the required payments, was similarly dismissed by the tribunal.

It noted that litigation is a common aspect of insolvency cases and does not excuse delays unless a court or tribunal issues a stay order.

“The pendency of litigations initiated by any person or stakeholder is not a justifiable ground for non-implementation unless the implementation is stayed by a court/tribunal,” the tribunal observed.

Senior advocate Gaurav Joshi with advocates Dhruva Gandhy, Abhishek Kale, Deepak Deshmukh, Vivek Dwivedi and Nevil Chopra appeared for Darwin Platforms.

Senior Advocate Prateek Seksaria and advocates Shriraj Khambete and Naman Jain appeared for Union Bank of India.

[Read Order]

The Allahabad High Court recently directed trial courts to ensure that the orders granting bail should not be frustrated due to arbitrary surety conditions that are fixed without considering the socio-economic status of the bail applicant [Arman v. State of U.P.].

The Court pointed out that several persons who are financially poor or from marginalized sections of society may not be able to afford complying with such bail conditions.

Justice Ajay Bhanot observed that it is the responsibility of trial courts to apply their minds by considering the socio-economic status of the accused while fixing sureties.

"This appears to be a serious matter. The large number of the persons who belong to marginalized sections of the society or financially destitute are unable to arrange or provide sureties fixed arbitrarily by the learned trial courts. To deal with this situation the constitutional Courts have constantly held that the right of bail cannot be defeated by arbitrary surety demands. It is the responsibility of the learned trial court to apply their minds to the socioeconomic status of the accused and accordingly fix the sureties. The law has cautioned against determining sureties in a mechanical manner", the Court said in its August 30 order.

The Court proceeded to call on trial courts to ensure that bail sureties are fixed in line with the directions already issued in the case of Arvind Singh v. State of U.P. Thru. Prin. Secy. Home Deptt.

In the Arvind Singh case, the High Court had issued detailed guidelines to curb the mechanical imposition of bail conditions.

The Court's observations came while granting bail to a man who had been in jail since September 2020.

The man moved the High Court for bail after a trial court rejected his bail plea in one of several cases filed against him.

The High Court granted him bail after noting that the accused man had explained his criminal history, that he was not a flight risk and that he had cooperated with the investigation and trial proceedings.

The High Court also noted that despite having been granted bail by the trial court in other criminal cases registered against him, the accused man had not been released on bail due to his inability to furnish sureties.

This prompted the Court to direct trial courts to fix sureties after due application of minds and considering the socio-economic conditions of the bail applicant.

"The learned trial court shall ensure that the right of bail of the applicant granted by this Court is not frustrated by arbitrary demands of sureties or onerous conditions which are unrelated to the socioeconomic status of the applicant," the Court said.

It also directed the Agra District Legal Services Authority (DLSA) to ensure that appropriate legal aid is made available to the applicant for submitting sureties and the completion of other formalities for his release on bail.

The Court recounted that in the Arvind Singh case, it had already directed the DLSA to extend legal aid to prisoners who are not able to enjoy the fruits of liberty granted by bail orders on account of their failure to provide the sureties fixed by trial courts.

The DLSA was also asked to help such prisoners in filing their applications for recall of onerous surety demands.

"The District Legal Services Authorities and the learned trial courts have not adhered to the aforesaid directions in the facts of this case", the Court noted.

The Court added that the absence of legal aid to the applicant in this case was evident from the fact that he could not approach the High Court for bail until 2024.

"The applicant is financially destitute and belongs to a marginalized section of the society ... The applicant could not approach this Court at an earlier point in time to seek his remedy of bail as he did not have access to legal aid nor was given legal advice to approach this Court earlier and also did not possess resources to file the instant bail application," the Court noted.

It proceeded to direct the concerned District Judge at Agra to look into the issues flagged by the Court and send a report to the Secretary of the High Court Legal Services Committee of the High Court.

A copy of the order was also sent to the Judicial Training and Research Institute at Lucknow, which had had earlier been asked to sensitise trial court judges on such issues.

Advocate Brijesh Kumar Pal appeared for the bail applicant.

Advocate Ali Jamal Khan assisted the Court as amicus curiae.

Additional Government Advocate Paritosh Kumar Malviya represented the State of Uttar Pradesh.

[Read Order]

The Delhi High Court recently ruled that all proceedings including bail proceedings under the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act of 1989 (SC/ST Act) should be video graphed even if the alleged offences involve sexual crimes against women and children [Laxmi Narayan vs. State NCT of Delhi].

Single-judge Justice Vikas Mahajan held that Section 15A(10) of the SC/ST Act, which mandates the video recording of proceedings, does not carve out any exception as regards sexual offences.

"The legislature has not carved out any exception in Section 15A(10) of the Act for the sexual offences made punishable under Section 3(1)(w) and Section 3(2)(va). It is thus, amply clear that the legislature intended compliance of Section 15A(10) in respect of sexual offences committed under the Act as well as under IPC involving female victims whose identity, under the law, is required to be protected," the Court said.

The Court was hearing a bail petition filed by one Laxmi Narayan, who is accused of the rape and murder of a minor girl belonging to a scheduled caste community.

He was booked for rape (Section 376) and murder (Section 302) under the Indian Penal Code (IPC), aggravated penetrative sexual assault under Section 6 of the Protection of Children from Sexual Offences Act (POCSO Act) and sexual atrocities against a woman under Section 3 of the SC/ST Act.

The complaint against him was lodged by the victim girl's father (complainant).

The accused moved a bail application before the Patiala House Court which was rejected. Subsequently, he moved the Delhi High Court. 

During the bail hearings, advocate Mehmood Pracha, appearing for the complainant-father, submitted that in view of Section 15A (10) of the Act, all proceedings relating to offences under the Act, including the present one, have to be video recorded.

He contended that in the present case, the minor daughter of the complainant was raped and murdered by the accused persons. Since the complainant belongs to the scheduled caste community, he is a victim within the meaning of Section 2(1)(ec) of the SC/ST Act, it was argued.

Further, as some of the offences invoked in the present case are under the SC/ST Act as well, the provisions of Section 15A(10) of the Act will apply to the present bail proceedings and it is obligatory to video record the same.

He pointed out that Section 15A of the SC/ST Act is titled ‘Rights of victim and witnesses’ and thus, it is the right of a victim to seek video recording of the proceedings and the same needs to be protected.

Additional Public Prosecutor (APP) Ritesh Kumar Bahri opposed Pracha's argument. He said that the Supreme Court had laid down in the case of Nipun Saxena and another vs. Union of India that no person can print or publish in print, electronic, social media, etc., the name of the victim under the POCSO Act or even disclose any remote fact which could lead to the victim being identified or which could make her identity known to public.

He also referred to Section 23 of the POCSO Act and Section 228A IPC, which penalises the disclosure of the identity of the victim of sexual offences. He said that these provisions would override Section 15A(10) of the SC/ST Act.

Since the bail proceedings in the present case involved offences under the POCSO Act, the same should not be video recorded, he maintained.

A similar argument was advanced by the counsel for the accused.

Pracha rebutted this stance by arguing that Section 15A(10) of the SC/ST Act speaks only of video recording of the proceedings and does not, at all, say anything about the publication of video recording, or even the supply of such recording to any person.

Further, he submitted Section 23 of the POCSO Act and Section 228A IPC are in the nature of safeguards to protect the identity of the victim of sexual offence, which would apply with equal force to the video recordings under Section 15A(10) of the SC/ST Act.

He explained that such video recording cannot be provided to any person other than the victim. In this way, the identity of the victim remains protected even if the proceedings are video recorded, Pracha contended.

Pertinently, he argued that Section 20 of the SC/ST Act provides for an overriding effect over other laws.

The Court, after considering the arguments and examining the provisions of the SC/ST Act, said that the reference to the expression 'all proceedings’ under Section 15A(10) will undoubtedly include the ‘proceedings’ in respect of bail, both before the special court and the High Court.

"In the present case, the language of the provision of Section 15A(10) is clear and admits of no ambiguity, thus, expression 'all proceedings relating to the offences under this Act' will include the bail proceedings before the Special Court, as well as, before the High Court in relation to the offences under the Act," the Court said.

With regard to the protection of the identity of the victim, the Court said that the SC/ST Act does not provide for the disclosure or dissemination of such video to anyone.

"Section 15A(10) while providing that all proceedings under the Act shall be video recorded makes no reference to the dissemination of such recording to anyone, which means that the recording is to be preserved for the usage of Court," the Court noted.

If at all such recording is to be provided to the victim or his/her advocate or to non-government organisations, or social workers, it need not be given without specific court orders, the single-judge added.

Thus, the Court concluded that the identity and anonymity of the victim can be safeguarded while video recording bail proceedings under the SC/ST Act.

"Clearly, there is no inconsistency between the provisions of recording of the bail proceedings to protect the rights of the victims under Section 15A(10) of the Act on one hand and Section 228A of IPC and Section 23 of the POCSO Act on the other hand," the single-judge underscored.

Thus, the provisions of Section 15A(10) of the Act are mandatory and the present bail proceedings will have to be video recorded, the Court ordered.

Advocates Ravi Mehta, Priyanka Singh, Rajat Kanojia, Rahul Kumar Saxena, Nikha Kanojia, Satpal Yadav and Priyank Chauhan appeared for the accused.

Advocates Mehmood Pracha, Jatin Bhatt, RHA Sikander, Sanawar and Mohd. Shameem appeared for the victim.

Additional Public Prosecutor Ritesh Kumar Bahri appeared for the State NCT of Delhi.

[Read Order]

The Calcutta High Court recently declined to entertain a public interest litigation (PIL) petition that sought directives to ensure the protection of lawyers through the enforcement of legislative measures.

A Bench of Chief Justice TS Sivagnanam and Justice H Bhattacharyya explained that it is up to the State to bring about such measures, and that the courts cannot be expected to legislate.

"This court cannot legislate and the court can only interpret the law ... It is for the State of West Bengal to come forward with the legislation or adopt any Central legislation or to pass appropriate legislation has done by the other States, namely, the State of Rajasthan which has introduced the Rajasthan Advocates’ Protection Act, 2023," the September 5 order said.

However, the Court granted the petitioners the liberty to present their request before the State while disposing of their plea.

The Court passed the order on a petition filed by a not-for-profit company and a lawyer who sought the enforcement of legislative measures to provide safeguards so that advocates can carry out their professional duties without fear, violence, or harassment.

The petitioners had also sought protection through the establishment of a dedicated monitoring committee or a task force to oversee the implementation of any guidelines issued on the issue.

Additionally, the petitioners had requested the immediate installation and maintenance of functional CCTV cameras in critical areas and the creation of a dedicated cell for the prompt registration and investigation of complaints related to threats, harassment, or intimidation of advocates.

The petition was disposed of by the Court after it noted that it cannot legislate on such issues.

"We grant liberty to the writ petitioner to pursue the writ petition before the State of West Bengal and if the representation is submitted ... the same shall be considered in accordance with law," the Court said, on a parting note.

The State Bar Council of West Bengal shall also submit their views to the government of West Bengal for appropriate legislation in this regard, the Court added.

Advocates Sandip Ray, S Srivastava, Shaondeep Chakraborty, Madhurima Sarkar, Aishwarya Nanda and Urmi Biswas appeared for the petitioners.

Deputy Solicitor General of India Rajdeep Majumder and Advocate Samrat Ghosh appeared for the Union of India.

[Read Order]

The Allahabad High Court recently observed that sexual assault victims were facing undue harassment because of delays in their medico-legal examination due to the non-availability of radiologists in various districts across the State [Prakash Kumar Gupta vs State of UP & 3 Others].

It is unfortunate that many districts of Uttar Pradesh do not have any radiologists posted, the Court said.

“This Court has time and again observed that the radiologists are not posted at various districts across the State. The victims are facing undue harassment due to delays in their medico-legal radiological examination, primarily caused by the non-availability of radiologists in various districts across the state,” the Court said.

Considering the situation, Justice Krishan Pahal has now directed the Director General (Medical and Health) to remain present before the Court.

The senior health department officer has also been directed to file an affidavit with district-wise details of the number of radiologists, the number of degree and diploma holders in radiology and the number of government medical colleges with radio diagnostic facilities.

The Court passed the order while dealing with the bail application of an accused in a case under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

The Court in July had directed the Chief Medical Officer (CMO) Ballia to get an ossification test of the victim conducted. Due to non-compliance, the officer was summoned later.

The Court was then informed that the radiologist in Ballia had expired in July and the victim’s examination could not, therefore, be conducted there.

The government counsel told the Court that on directions of the Additional Director, Health, Azamgarh, the victim was later taken from Ballia to Varanasi. However, her radiological examination was refused there as the court order was for the CMO Ballia to conduct the exam.

“This is a classic example of red tape approach. The victim was then sent to Azamgarh and her ossification test was conducted at the 100 bed CHC at Atraulia, District Azamgarh,” the judge noted.

The Court observed that the circumstances of the case had added to the victim’s woes and thus took note of the overall non-availability of radiologists in the State.

POCSO Act misused: Court

An ossification test is sometimes required in criminal cases to determine the age of the victim or the accused. In sexual abuse cases, it is used to ascertain whether the victim was a minor at the time of the crime and whether the POCSO Act would come into play.

In the present case, the ossification report revealed that the alleged victim was above 18 years of age, prompting the Court to criticise the wrongful invocation of the POCSO Act.

Justice Pahal observed that the victim's father (informant) had deliberately reported that his "13-year-old" daughter had been enticed and taken away by the accused, to make the case fall under the purview of the POCSO Act.

This misrepresentation has led to severe legal consequences for the accused, the Court said.

“The ossification test report indicates that the victim is actually 19 years old. This suggests that the victim is legally an adult and, therefore, the application of the POCSO Act may be inappropriate in this case,” the Court noted.

Due to such false representation of age, the accused remained in jail for more than six months. Such imprisonment could have serious implications for his life, reputation, and future, the Court observed.

The Court further said that the POCSO Act was designed to protect minors but appears to have been misused in this case. This misuse not only harms the applicant but also undermines the credibility and integrity of the legal system and the POCSO Act itself, it added.

“This situation exemplifies how the misuse of protective laws like the POCSO Act can lead to significant injustices. It underscores the need for careful verification of facts, especially in sensitive cases involving minors, to ensure that the law is applied appropriately and that justice is served for all parties involved,” the Court underscored.

The Court further reiterated that the POCSO Act was formulated to protect children under the age of 18 years from sexual exploitation but nowadays, more often than not, it has become a tool for exploitation. 

“The Act was never meant to criminalise consensual romantic relationships between adolescents. However, this has to be seen from the facts and circumstances of each case. The fact of consensual relationship borne out of love should be of consideration while granting bail because it would amount to perversity of justice if the statement of victim was ignored and accused was left to suffer behind jail,” the Judge stressed.

Considering the facts and circumstances of the present case, the Court granted bail to the accused.

Advocate Raj Kumar Singh and Sunil Kumar Singh represented the accused.

Advocate VKS Parmar represented the State. Advocate Ajeet Kumar Singh represented the informant.

[Read Judgment]

The Delhi High Court recently upheld Delhi University’s (DU) decision to allocate 5 percent extra students to St. Stephen’s College in the initial rounds of counselling [Hargun Singh Ahluwali & Ors v Delhi University & Ors].

Excess candidates are allotted in the initial admissions rounds because many students opt for other colleges at later stages after securing admission to one college.

Justice Swarana Kanta Sharma rejected St. Stephen’s arguments against the DU’s decision and held that in previous years, the college had agreed to the policy of allocating 20 percent extra students in the initial rounds of counseling and this year the number was only 5 percent.

“This Court finds that the College itself has been consistently following this policy for the last three years, including in the present academic year, without raising any objection or challenging the same in a Court of law. Having accepted and applied this policy, the College cannot now challenge its validity in these proceedings, particularly when the students have been allocated to the College as per the provisions of CSAS (UG)-2024,” the Court said.

The Bench ruled that in determining the 5% extra seat allocations, fractions below 0.5 should be rounded off to the higher site. The decision means that if 5% of total seats results in fractions like 1.2, 1.3 or 1.4, the number of seats should be rounded up to 2.

“In this Court’s view, the interpretation of beneficial policies must align with the intent behind them and cannot result in a reduction below the prescribed 5% extra intake. If the respondent college insists on a rigid mathematical approach, arguing that fractions such as 0.5 or 0.4 should be ignored and treated as 0 in the context of seat allotments, it would defeat the very purpose of the policy introduced by the Delhi University,” the Bench said.

Further, the Court added that multiple BA Program courses offered by the college should be treated as different programs for seat allocation.

It was the college’s argument that these are not different programs but a single course with different combinations of subjects.

Justice Sharma also refused to declare the DU’s policy of reservation for single girl children. The Court said that the policy cannot be termed illegal or arbitrary.

The Court returned these findings while dealing with a plea filed by seven students challenging St. Stephen’s decision not to grant them admission even though the DU had allocated seats to them in the College.

The college argued that the DU was allocating them more students than the permissible intake.

The Court directed St. Stephen’s to grant admission to the students.

Further, the Court ordered that in the future, the colleges having issues with the seat matrix must send their grievances to the University at least three months before the initiation of the new academic session.

“The representation so made will be decided by the University within two months from the date of receipt of such representation by holding meetings etc. as deemed appropriate. This will ensure that the students do not face any problem in attending their classes, and such grievance resolution at an early stage will ensure that the colleges are also able to run their administration and classes without any need to run to the Court.”

Senior Advocate Rishi Malhotra with advocates Ravinder Singh, Raveesha Gupta, Ansuiya, Ritvik Bhardwaj and Shivansh Maini appeared for the students.

Delhi University was represented by advocates Mohinder JS Rupal and Hardik Rupal.

Advocates Sanjay Khanna, Pragya Bhushan, Karandeep Singh and Tarandeep Singh appeared for the National Testing Agency.

St Stephen’s was represented by Senior Advocates Romy Chacko and A Mariarputham along with advocates Varun Mudgal, Kartik Venu, Himani Sharma, Akshat Singh and Sachin Singh Dalal.

[Read Judgement]

A Delhi Court recently convicted a man after the cheque he had given to his lawyer towards payment of legal fee bounced [Rahul Trivedi vs. Manoj Singh].

The Court sentenced the man, one Manoj Singh, to three months in jail apart from asking him to pay a fine of ₹10.9 lakhs for failing to pay his lawyer for legal services rendered.

The complainant, advocate Rahul Trivedi, told the Court that Singh had not only failed to pay his legal fee but had also failed to reimburse ₹7.7 lakh which the lawyer himself had paid to a Senior Advocate engaged to argue Singh's case before the Supreme Court.

In an August 7 judgment, Judicial Magistrate Anurag Chhabra of the Patiala House Courts in Delhi found that Singh had not been able to raise even a probable defence that he had no legally enforceable debt to pay the lawyer.

In the ensuing August 21 sentencing order, the Court said that Singh did not regularly attend the case, as a result of which non-bailable warrants had been issued against him.

Further, Singh thwarted attempts to settle the matter by taking multiple adjournments under the pretext that he would comply with the terms of the settlement, only to not adhere to such terms.

The Court noted that this only delayed the adjudication of the case.

"In view of the overall facts and circumstances of the present matter, convict (client) is sentenced to simple imprisonment for a period of three months and is further directed to pay a fine of Rs.10,90,000/- to the complainant within 60 days from the pronouncement of this order and in default of payment of this fine, convict shall undergo simple imprisonment for a period of three months," the Court ordered.

By way of background, Trivedi, a practicing advocate, was approached by Singh to defend his case before the Supreme Court.

At the behest of Singh, Trivedi also engaged Senior Advocates Mukul Rohatgi and Soli Sorabjee to appear before the Supreme Court. 

The office of one of the senior lawyers engaged informed that, as a rule of caution, the office would only take a cheque from the advocate on behalf of the client since the client is from outside Delhi.

Trivedi, therefore, paid a fee of ₹7.7 lakh for the client out of his (the lawyer's) own pocket.

Singh gave a cheque to Trivedi to reimburse this payment. However, this cheque was dishonoured due to “insufficiency of funds”.

Later, a cheque earlier issued to Senior Advocate Mukul Rohatgi also bounced.

Meanwhile, Singh secured relief from the Supreme Court.

Trivedi eventually sent a legal notice to Singh for the payment of legal fees in 2020.

Since Singh did not pay the amount or respond to the legal notice, Trivedi filed a criminal complaint for the offence of cheque bouncing under Section 138 of the Negotiable Instruments Act.

Trivedi's counsel told the Court that Singh had been evading payment since the very beginning, which showed his intention to defraud.

The Court noted that there were contradictions in the defence raised by the accused.

At the stage of summons, Singh is said to have mentioned that he had paid ₹3 lakh through cheque to Trivedi and thereafter issued two more cheques (including a cheque for ₹7.7 lakh). He added that the litigation fees were not finalised and that he had also paid ₹1.65 lakh to Senior Advocate Sidharth Luthra at the instance of Trivedi.

However, at the stage of examination of evidence, Singh admitted that he owed money to the lawyer (Trivedi) and was ready to pay the same.

The Court, however, eventually did not rely on his statements after noting that he failed to appear for cross-examination.

"The complainant has been able to prove his case beyond reasonable doubt qua the accused in respect of the cheque in question (concerning the payment of ₹7.7 lakhs)," the Court concluded.

Advocates Amit Kumar Vidya, RK Wadhwa and Rajiv Khosla appeared for Trivedi.

Advocates Sanjeev Prakash Upadhyay and Sanjay Kumar Mishra represented Singh.

[Read conviction judgment]

[Read sentencing order]

The Allahabad High Court recently rejected the petitions challenging the full court's 2019 decision to confer Senior Advocate designation on 75 lawyers [Vishnu Behari Tewari vs The High Court Judicature At Allahabad And 2 Others].

The decision is likely to pave way for designation of more Senior Advocates at the High Court.

During the pendency of the challenge against the 2019 list, the High Court did not undertake any exercise for conferment of Senior designation on the lawyers. The Supreme Court has asked the High Courts to carry out the exercise at least once a year.

There are 143 Senior Advocates at the High Court - the total number of Advocate on Roll (AOR) is 26,170 at Prayagraj and 15,300 at Lucknow. 

236 more are seeking the senior gown at present. 

Dealing with the challenge against the 2019 list, the Division Bench of Justice Saumitra Dayal Singh and Justice Donadi Ramesh said the entire exercise was conducted in a transparent and fair manner with objective consideration at every stage.

“Even at the Full Court, three names did not go through. Two were declined. The fact that the petitioners may have missed out, may give them a right to be reconsidered as contemplated under the Rules where any applicant who may not be successful at seeking designation in one full court may be reconsidered after two years. Yet, the petitioners may not have acted recklessly, by giving wings to their worst imaginations,” the Court said.

The two petitioners Vishnu Behari Tewari and Colonel Ashok Kumar had sought conferment of Senior designation but their names were not cleared by the permanent committee in charge of scrutinising the applications for the gown.

The petitioners moved the Court challenging their exclusion. They said the waiver of interview requirement was not in accordance with the law laid down by the 2017 Supreme Court ruling in the Indira Jaising case.

It was also submitted that marks were not awarded out of 100 but only 75 and the permanent committee did not disclose to the full court the marks awarded to the individual applicants. 

It was also argued that the permanent committee erred in fixing the cut off marks and not sending the names of all applicants to the full court along with its assessment report. 

However, the Bench said that the Supreme Court even in the Indira Jaising’s case, had allowed or left it open to the permanent committee to evolve an objective or rational criteria to “clear” or recommend only such application to the full court, as it may consider fit.

The High Court also said that the criteria to shortlist all applicants based on qualifying marks fixed by the permanent committee was rational, fair, objective and transparent.

On the lack of personal interview of the applicants, the Court said the Supreme Court has clearly laid down that no distinction by way of designation as a Senior Advocate may be conferred except against prior interview granted - with suo moto designations being an exception to that rule.

However, in the present case, the Court said the issue of lack of interview may have arisen only at the instance of those short-listed, but not the rest. 

"The petitioners not being shortlisted on the basis of cut-off marks prescribed, they never earned a right to be interviewed by the Permanent Committee. Thus, out of 78 applicants shortlisted by the Permanent Committee, initially, three applicants were not conferred designation at the Full Court. The claim of one applicant was deferred and to two others the distinction was positively declined. The applicant whose application was deferred was also granted designation, later. The other two applicants never challenged the action of the Full Court. Five years have passed since then. No challenge may even arise or exist on that count, now,” said the Court. 

The Bench further said that it does not find any justification to consider the possibility of the present challenge for reason of passage of time.

Five years have passed and those designated have been regularly appearing before the courts, the Bench stated.

“The distinction conferred may never be thought to be withdrawn or be doubted now for reason of interview not held five years ago. Equally, no useful purpose may be serve in now requiring that condition to be fulfilled, at this later stage, with these facts,” the Court said. 

The permanent committee, being burdened with the onerous task of scrutinising applications to determine the suitability for conferment of distinction as Senior Advocate, works on an implied trust, it added

“It is required to screen those applications to help the full court form its subjective opinion. There is no quarrel that such objective criteria was adopted,” the Court concluded.

Advocate Vishnu Behari Tewari appeared in person. Advocate Rohit Kumar represented advocate Colonel Ashok Kumar. 

Senior Advocate GK Singh with advocates Ashish Mishra and Chandan Sharma represented the Allahabad High Court.

[Read Judgment]

The Supreme Court recently upheld the conviction of a man for repeatedly raping his stepdaughter [Mallan @ Rajan Kani v. State of Kerala].

The Division Bench of Justices Sudhanshu Dhulia and Ahsanuddin Amanullah said that it had absolutely no reason to interfere with the well-considered findings of the trial court and the Kerala High Court on the man's conviction.

However, the top court reduced the sentence of the convicted stepfather from life imprisonment to ten years in jail, while upholding the ₹2 lakh fine imposed on him.

The Court deemed it appropriate to reduce the jail sentence after taking note that the stepfather was in his 40s and had already undergone more than eight years of his sentence.

"Having considered the totality of the facts and circumstances of the case, we reduce the sentence to 10 years and retain the fine amount as Rupees Two lakhs. The appellant shall pay the said fine amount within a period of one year from today," the Court said in its September 3 order.

The Court was hearing an appeal by a man convicted and sentenced to life imprisonment for raping his stepdaughter in a forest after he insisted that she accompany him to collect firewood.

The victim also submitted that her stepfather had raped her on previous occasions as well, in the very same forest and also at her house.

Both the trial court and the Kerala High Court convicted him for the offence under Section 376 (punishment for rape) of the Indian Penal Code, 1860.

In his appeal challenging these verdicts, the man had also argued that he did not have the means to pay the ₹2 lakh fine that was additionally imposed on him.

The top court, however, refused to reduce this amount and ordered him to pay it within a year.

"In case the said fine amount is not paid by the appellant within the stipulated time, the appellant shall undergo one year (instead of two years RI) of further sentence," the Court added.

Senior Advocate DN Goburdhun and advocate Nidhi appeared for the appellant (convict).

Advocates Harshad V Hameed, Dileep Poolakkot, Ashly Harshad and Farhad Tehmu Marolia appeared for the respondents (State of Kerala and the victim).

[Read Order]