Top News Headlines 17th Dec 2021: Contempt Jurisdiction Must Be Exercised Sparingly: SC Rules

Contempt Jurisdiction Must Be Exercised Sparingly: SC Rules

• The Hon’ble SC on 15 December, 2021 in The Bordeuri Samaj Of Sri Sri Maa Kamakhya vs. Riju Prasad and Ors. said that “contempt jurisdiction is always discretionary which should be exercised sparingly and with circumspection”.
• The Supreme Court on 7 July,2015, concurring with the decision of the Gauhati HC by which it had ordered the administration of the temple to the Bordeuri Samaj consisting of five main families of priests who had run the temple since time immemorial. But in 1998, a Kamakhya Debutter Board which took control of the shrine.
• The contempt case thus arose out of the non compliance of the 2015 judgement of the Hon’ble Supreme Court (Riju Prasad Sarma and Ors vs. State of Assam and Ors).
• In this case it was contended that the right to manage the affairs of the Kamakhaya Temple is vested in the Bordeuri Samaj since time immemorial. It has also been recognised without dispute. But, in the year 1998, a body named Kamakhya Debutter Board was formed and this Board had illegally encroached upon the powers of the Dolois (representative of the members of the Bordeuri Samaj).
• The breach that was alleged has arisen out of the order of the Hon’ble SC given in the 2015 judgement which stated the following-

“Since the Debutter Board was occupying some part of the Temple on account of the interim orders of this court, those orders now stand vacated. The District Administration is directed to ensure that those premises are vacated by the members of the Debutter Board at the earliest and in any case within 4 weeks. The premises and other properties are to be placed back into the possession of the Bordeories Samaj through the last elected Dolois against receipts which shall be retained in the Office of Deputy Commissioner, Gauhati”.

• The various grievances in the contempt petition are-

a) That the possession of the immovable properties have not yet been handed over to the Bordeuri Samaj.
b) That the various movable properties of the Temple have also not been handed over.
c) That the Debutter board was holding onto surplus cash of not less than Rs. Eleven Crores which belonged to the Deity, has not been paid.
d) The books of account of the Temple have not been handed over to the petitioner.

• On 31 January, 2020 it was observed by a bench headed by Justice Nariman that “the withdrawal of Rs.7,62,03,498 by the Kamakhya Debuttor Board was in violation of the Supreme Court’s order without taking approval from the Deputy Commissioner being cleverly split into amounts of Rs.50,000 so as to give the impression that the order has been complied with.” The bench directed that it would be proper if a criminal case is lodged and a proper investigation is conducted.
• In the instant case , the bench of Justice Rastogi and Justice Oka said “ Perusal of the judgement shows that there is no discussion therein about the liability of the respondents 1 to 4 to pay any specific amount”. The court further held that “perusal of the order dated 31st January 2020 shows that there was no opportunity granted to the parties to file any objections to the report. It cannot be said that since the respondents did not object to the report, they have accepted the liability to pay the amount of Rs.7,62,03,498. Moreover, the observations cannot be treated as concluded findings. In our view, no case is made out to take action under Article 129 of the Constitution read with the Contempt of Courts Act,1971.”

And now, a question for our Judiciary Aspirants—

Which Article of the Indian Constitution empowers the Supreme Court to punish for it’s contempt?

SC Leads Us Through The Mist Surrounding The Grant Of Bail– Keep Reading To Know More!

• On 7 October,2021 the Hon’ble SC issued guidelines on the grant of bail to those accused who are not arrested during investigation on the chargesheet being filed. The court clarified that the twin conditions imposed on the grant of bail by section 45 of the Prevention of Money Laundering Act have been struck down by the court in the case of Nikesh Tarachand Shah vs. Union of India and Another (2018) SCC
• One of the concerns raised during the hearing in question in the present case of Satender Kumar Antil vs. CBI was that the Lower Courts while hearing bail matters interpret them in such a way that the twin conditions laid down in section 45 of PMLA are given effect. The bench repeatedly said that the purpose of their October order was to make the grant of bail easier.
• Expressing dismay at the strictness adopted by the lower Courts while granting bail, the Court said “We have been converted into a bail court. In nearly 40% of the cases we are called upon to grant anticipatory bail… the cases which should have been finished at the TC level or at least the HC level, it seems that somewhere the signal has gone wrong. Some rectification is required…”
• While expressing concern over the fact that jail has now become a norm, while the investigation is suspended, the Court remarked-

“In economic offences, the idea is to recover the amount.. it cannot be that everyone is kept behind bars…. economic offences are also crimes against society but it should not go to a stage where everyone is kept behind bars, and the investigation does not complete..”

• The Court further held that “if during the course of the investigation, there is no cause to arrest the accused, merely because the chargesheet is filed does not ipso-facto become a ground of arrest”.
• It was also pointed out that not granting bail is resulting in an overcrowding in jails. The jails of our country are already heavily burdened while lacking in several basic amenities ranging from the lack of sleeping places to a lack of medical facilities. This is not made easier by the fact that the Courts are heavily inclined to not grant bail to the accused.
• In the case of Aman Preet Singh vs. CBI, the Hon’ble Court had held that “If a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because chargesheet has been filed would be contrary to the governing principles for the grant of bail”.
• Lastly, in the case of P. Chidambaram vs. Directorate of Enforcement (2019) the Hon’ble Supreme Court had reiterated the triple test for the grant of bail which reads as follows-

a) That the accused is not a “flight risk”.
b) That it is not likely that the accused will tamper with the evidence.
c) That it is not likely that the accused would influence the witnesses.

• In the absence of the above stated conditions, it is not reasonable for the accused to languish in jail for an extended period of time with no hope of rejoining the society any time soon. It is a heavy blow to his fundamental right to live with dignity.

And now, a question for our readers-

When has Section 45 of the Prevention of Money Laundering Act been amended?

Damages May Be Of Two Kinds- Know What The Madras HC To Say

• The Madras HC in the case of E-merge Tech Global Services P Ltd vs. Mr. M.R. Vindhyasagar and anr. (2021) has deliberated the conditions in which the Court may grant Compensatory Damages and in which it may grant Restitutionary Damages.
• A single judge bench comprising Justice N. Anand Venkatesh has observed-

“This court is of the view that an order directing an account of profits developed in response to cases where the loss suffered could not be measured adequately … in such cases the Court was empowered to justly compensate the plaintiff by assessing the damages with reference to the gains made by the defendant instead of conventionally assessing it with reference to the loss caused to the plaintiff”.

• The Bench further clarified that where the damages can be ascertained in the usual way, then the court does not need to resort to assess damage by way of profits accrued.
• In the present case, the plaintiff company had moved against the respondent, who was it’s former employee, alleging breach of contract, non-compete, confidentiality and non-solicit agreements entered into between them.
• The Court, while agreeing with the non-disclosure and the non-solicitation clauses, also observed that the non-compete clause cannot be enforced after the defendant (employee) has left the employment. The Court, while making this observation, relied upon the judgement of the Madras HC in the case of FL Smidth (P) Ltd. vs. Secan Invescast (India)(P) Ltd. (2013).
• In order to assess the amount of damages, the Court relied on the judgement of the Supreme Court of United Kingdom where it was held that there was no need to assess the profits where the damages could be assessed in the “usual way”.
• Relying on this, the HC observed thus-

“This has a direct bearing on the case at hand, since there exists unrebutted material providing a legitimate basis on which the COurt can base it’s conclusion to assess the damages. This Court also finds that there is nothing exceptional in the facts of this case so as to warrant a deviation from the general principle”.

• The Court, in its judgement further relied on the case of State of Kerala vs. K Bhaskaran AIR 1985 Ker. where it was held that the test of reasonable foresight as envisaged in Section 73 of Indian Contract Act has to be complied with while assessing the amount of damages, which means those damages which an ordinary man of prudence would be able to see.
• Thus, the Bench held that in the ordinary course of things, the damages must be ascertained by referring to the loss caused to the claimant instead of the gain made by the defendant. But in case of Restitutionary Damages “enquiry is not of the loss suffered by the plaintiff but is focused on the gain made by the defendant from the alleged breach”.

Read the above carefully? Let’s see if you can answer the following-

The test of reasonable foresight has been envisaged in which section of the Indian Contract Act?