The Writ of Habeas Corpus is generally filed to enquire about the whereabouts of a person. It has been misused by some litigants as a useful tool to try and get release of the detained person from prison. The primary purpose of moving a writ of Habeas Corpus is more in the nature of “search and detection” of a missing person. What most people are not aware of is that even when a writ of Habeas Corpus is issued, it does not routinely acquit the detained person or waive off his liability under the law.

A criminal appeal titled THE HOME SECRETARY (PRISON) & ORS. v/s H. NILOFER NISHA having Criminal Appeal No. 145 of 2020 was decided on 23rd January, 2020 in the Hon’ble Supreme Court of India, in which the main issue which arose before the Court for decision was:

“Whether a writ of habeas corpus would lie, for securing release of a person who is undergoing a sentence of imprisonment imposed by court of competent jurisdiction praying that he be released in terms of some Government orders / Rules providing for pre­mature release of prisoners?”

In this case the Bench of Justice S. Abdul Nazeer and Justice Deepak Gupta observed that “it is not for the writ Court to decide whether a prisoner is entitled to parole or remission and these matters squarely lie in the domain of Government.”

It was contended on behalf of the State that by directing for the release of the prisoners and allowing their Habeas Corpus petitions, the High Court overstepped its powers and jurisdiction under Article 226 of the Constitution of India. Under the scheme, the High Court could have directed the concerned authorities to consider the representation but could not have ordered for the release of the prisoners, the State contended.

After hearing arguments the Hon’ble Supreme Court noted that in the instant case, the Petitioners were all sentenced to life imprisonment and most were convicted of offences as serious as those under Section 302 of the Indian Penal Code mainly murder. The Supreme Court held the High Court did not have the power to release prisoners and that the Government is responsible for the decision on parole and remission.





The Hon’ble High Court of Madras vide its Order dated 09.01.2020 has recently delivered a significant ruling in the matter of Mr Ajay Kumar Bishnoi Vs M/s. Tap Engineering, [MHC CR 34996/2019] and held that acceptance of the Corporate Insolvency Resolution Plan under Section 31 of the Insolvency and Bankruptcy Code, 2016 (IBC) cannot be a ground for quashing the prosecution initiated under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) against the corporate debtor and its officials.

In the instant matter, Petitioner was a former Managing Director of M/s. Tecpro System Limited. The Petitioner-company had undergone the Corporate Insolvency Resolution Process under Section 31 of the Code and moratorium in terms of Section 14 of the Code was declared, during the pendency of the complaints regarding the dishonor of cheque.

In the said matter the Petitioner approached the Hon’ble High Court for quashing of proceedings under Section 138 of the NI Act as non-est in the eyes of law.

Justice GR Swaminathan, observed and held that:

No clause in the Corporate Insolvency Resolution Plan even if accepted by the adjudicating authority/appellate Tribunal can take away the power and jurisdiction of the criminal court to conduct and dispose of the proceedings before it in accordance with the provisions of the Criminal Procedure Code.”

The Court further discussed the various provisions of Company law, Criminal Procedure Code, Insolvency and Bankruptcy Code and referred to various decisions of the Tribunals to say that the terms “suits and proceeding” appearing under Section 14 of the Insolvency and Bankruptcy Code does not include criminal proceedings within its ambit and has not intentionally been included by the legislature.

In response thereof, it was submitted by the Petitioner that the IBC was a self-contained enactment having an overriding effect over other laws. Therefore, a continuation of the impugned prosecution under NI Act would only amount to an abuse of legal process.

The Hon’ble Court held otherwise and further explained that the main object of Section 138 of the NI Act is to safeguard the credibility of commercial transactions and to prevent cheques bouncing by providing a personal criminal liability against the defaulter of the cheque in public interest. Therefore, even if the resolution plan was approved and made binding on the corporate debtor and its employees, members, creditors, guarantors and other stakeholders under Section 31 of the IBC, criminal proceedings under Section 138 will not abate.

In view of this ruling it is clear that the object of the IBC is to provide for insolvency resolution in a time bound manner for maximization of value of assets. It has not been enacted to provide succor to those who by their misconduct contributed to defaults of the corporate debtor.

This judgment comes as a big relief to persons pursuing realization of their cheque amount against companies or persons undergoing the CIRP proceedings. There is a reaffirmation that the moratorium granted by the Court does not cover pending criminal litigations.

Lakshmi Vishwakarma


The Indian Lawyer


The Kerala High Court has recently passed a Judgment dated 24-01-2020 in The Trustee, Hidaya Educational & Charitable Trust v. State of Kerala, whereby the Court held that an educational institution seeking Government recognition cannot impart exclusive religious studies in preference over another religion.

The school in this case was run by Hidaya Educational and Charitable Trust that gave admissions exclusively to students who were adherent to the Islamic religion. Moreover, their syllabus was also set in accordance with that of Muslim Educational Institutions. Thus, after conducting an inspection, the Deputy Director of Education, Trivandrum issued an order to shut down the School on the ground that there was an attempt to promote exclusively Shariah Law.

The Kerala High Court held that education builds and transforms the personality and the future of a child and enables the child to understand the diversity of religion, tradition, culture, etc around him/her. Thus, this should be essence of education in a multi-religious society.

Moreover, State funded schools are bound to follow secularism which is the basic structure of the Constitution of India 1950 as amended thereof, i.e. any State cannot provide sectarian religious choices in a society of various religious practices.  

Therefore, the Kerala High Court held that all the educational institutions which need recognition of the Government should abstain from imparting religious instructions or religious study, whereas, private unaided educational institutions have to approach the Government for granting or refusing permission to impart religious education or instruction. Failing which, the Government would take action of closure or de-recognition of such schools.

Priya Rana

4th year, Galgotias University

Intern, The Indian Lawyer


Harini Daliparthy

Senior Legal Associate, The Indian Lawyer


The Allahabad High Court has recently passed an Order dated 09-01-2020 in Masroor Ahmad and Another vs State of U.P. and others, thereby declining to grant permission to two mosques to install loudspeakers, for the purpose of Azaan for Namaz on the ground that use of amplifiers, and sound equipments would cause aggravation of tension between Hindus and Muslims residing in the same area, which would lead to disturbance in peace, law and order.

In this case, although permission for the installation of Loudspeaker/ Amplifier/ Sound Producing/Music equipment was taken from the concerned authority under Rule 5 of the Noise Pollution (Regulation and Control) Rules, 2000. But the Allahabad High Court held that no religion preaches that prayers are required to be performed through loud speakers, voice amplifiers or by beating of drums. Thus, the High Court refused to lift the ban on use of unauthorized loudspeakers and amplifiers in a mosque in a village in Uttar Pradesh, imposed by Sub-Divisional Magistrate, Shahganj, District Jaunpur, on the ground that it may cause social imbalance.

It is believed by various experts that the High Court has set a good precedent by rejecting such frivolous petitions, as the loud speakers were invented in late nineteenth century and thus, it would be incomprehensible to claim the use of loudspeaker as an essential religious practice.

Riya Goyal

4th Year, Galgotias University

Intern, The Indian Lawyer


Harini Daliparthy,

Senior Legal Associate, The Indian Lawyer


Two Death Convicts in the Nirbhaya case had submitted Mercy Petitions before the President of India. Their Curative Petition was earlier rejected by the Hon’ble Supreme Court. Thus, submitting this Mercy Petition was the last legal remedy available to them.

After extinguishing all the reliefs available in the court of law, either the convict in person or any of his relative can submit a written mercy petition in writing to the President. Mercy petition is basically a relief sought by the convict that the death penalty given to him should be reconsidered or altered to life time imprisonment.

Mercy Petition: Provisions Under Indian Law

Article 72 of Indian Constitution grants power to the President to grant pardons, suspend, remit or commute sentences in certain cases. As per this power the President has sole authority to grant mercy petitions in criminal cases on the aid and advice of the Council of Ministers. Similarly, the Indian Constitution also grants power to the Governor as per Article 161 to grant pardons, suspend, remit or commute sentences of any convict for an offence against law or to a matter to which executive power of state extends.

In the case of Keher Singh Anr V. Union of India 1989 AIR 653, the Supreme Court observed that, “it is approximate that in the matter of life and personal liberty, another degree of protection should be extended by entrusting power to some high authority to consider the option of commutation. The power so entrusted is a power belonging to the people and lies in the highest dignitary of the State.

The President while exercising his power can also scrutinize the evidence on record. In doing so, the President cannot amend or modify or supersede the judicial record. Also, there is no right available to the person condemned to insist on oral hearing before the President.

Judicial Review of Mercy Petition   

According to Webster Dictionary of Law “Judicial Review is the power of a court to review the action of public sector bodies in terms of their constitutionality in some jurisdiction, it is also possible to review the constitutionality of law itself.” Judicial review in an independent judiciary is a fundamental feature, and it assures faith in the Constitution. 

The limits of Judicial Review as granted under Article 72 and 161 of the Indian Constitution have been outlined in the case of Maru Ram v. Union of India 1980 AIR 2147. The Supreme Court observed that all public power, including constitutional power should not be exercised arbitrarily or mala fide. The bench in Maru Ram case also noted that the power conferred by Article 72 is a highly privileged power vested by the Constitution in the highest functionary of the Union.

Judicial Review of the order of the President or the Governor under Article 72 or article 161 can be impugned on the following grounds: –

  • If the order had been passed without the application of mind
  • That the order is mala fide
  • That the order have been passed on extraneous or wholly irrelevant considerations.
  • That relevant materials have bee kept out of consideration.
  • That the order suffers from arbitrariness.

Procedure of Mercy Petition

In the case of Shatrughnan Chauhan & Anr v. Union of India Writ Petition (Criminal) no. 55 of 2013 certain guidelines for mercy petitions were laid down which are as follows: –

  • As soon as the mercy petition is received, the Ministry of Home Affairs should without any delay place it along with court records before the President for his consideration.
  • Rejection of any mercy petition should be communicated to the prisoner and his family members in writing.
  • Death Penalty convicts have all rights to receive a copy of rejection of their mercy petition.
  • Also, there should be a minimum 14 days interval between the rejection of mercy petition and execution of death penalty.

According to an information released by the Government under The Right to Information Act, out of 77 Mercy Petitions received 69 have been rejected by the presiding President between 1991 to 2010. Since independence a total of 308 mercy petitions have been have been received, out of which only 132 have been accepted and 440 have been rejected.  According to our Former President Mrs Pratibha Patil, “The Death Penalty does not serve the penological goal of deterrence any more than life imprisonment”.

Aakritee Gambhir


The Indian Lawyer


The Ministry of Home Affairs (MHA) has recently published certain comprehensive and revised Guidelines for Mutual Legal Assistance in Criminal Matters dated 04-12-2019 (Guidelines) on 08-01-2020. These Guidelines are aimed at streamlining the process of request for international mutual legal assistance in criminal cases including investigation, service of summons/notices/judicial documents, extradition of criminals, etc.  

In view of various Conventions, Reciprocal Arrangements, and Mutual Legal Assistance Treaties (MLATs) pertaining to criminal matters, that India has entered into with several countries across the world, these countries cooperate with each other in the following manner, in order to provide and obtain formal assistance in prevention, suppression, investigation and prosecution of crime, so that criminals do not escape the due process of law by taking refuge in other countries:

1- Letters Rogatory (LRs)- LRs are sent by a court of a member country to a court of another member country seeking mutual legal assistance in service of documents, taking of evidence, conducting investigation or prosecution in criminal matters such as money laundering, etc.

2- Mutual Legal Assistance (MLA) Request- An MLA Request is a formal request made by MHA under the provisions of any Convention and/or MLAT, with the Central Government of another member country, on the request of an investigating officer.

3- Service of summons, notices and judicial processes- A competent court in India may send a service of summons, notices, and judicial processes to MHA, which further forwards the same to the foreign country through its Embassy/High Commission/Diplomatic Channels in India or any other competent authority in such foreign country.

4- Informal requests- Informal request for mutual legal assistance in criminal matters may be made through INTERPOL channels.

In one such instance, the Indian Government had made several extradition requests to multiple countries to extradite Mr. Nirav Modi, the Fugitive Diamond Merchant, back to India to continue legal proceedings against him in the Punjab National Bank scam case in 2018.

Although in some cases, the requests for mutual legal assistance may be refused by MHA on the grounds that the execution of such request may impair sovereignty, security, public order and public interest of India or of the foreign country, etc, or the request made is not pertaining to any act or omission that does not amount to an offence under the ordinary criminal laws of India or of that foreign country, etc.

But so far, the Government has initiated various training programmes in coordination with various foreign experts, Central Bureau of Investigation (CBI), etc to train the Indian law enforcement agencies to handle the process of requesting and obtaining international mutual legal assistance in criminal matters, etc. This would help the Government to expedite the investigation procedure and the courts to decide and dispose of criminal matters in a speedy and efficient manner.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer


In the past, the Indian Parliament passed the Insolvency and Bankruptcy Code , 2016 (IBC). The Government had notified only the part on corporate insolvency. But as we moved further in time to 2019, the Government realised that if they did not notify those provisions that dealt with Personal Insolvency, guarantors of big corporates would go virtually scot free. Hence, in 2019 Personal Insolvency provisions were notified.

Personal Insolvency, if defined in simple words, would mean when a person is unable to honour a debt agreement i.e. when his debts exceed his income. As of now, Personal Insolvency is still at its initial stage in India and it requires time to be fully operational. In the latest amendment of 2019 in IBC, a Personal Guarantor is allowed to be sued for recovery of dues by creditors in the NCLT. A Personal Guarantor can now also move a petition for having himself declared insolvent. As per this amendment, the law seeks that both secured and unsecured debt of the guarantor would be covered under the head Personal Insolvency.

In terms of the amendments in Personal Insolvency, the IBC now provides process for dealing with default. The “Fresh Start Process” provides for post clearance of dues with creditors. The “Insolvency Resolution Process” provides for a mechanism for creditors and debtors to renegotiate a repayment plan and “Bankruptcy” provides for liquidation of debtor’s assets but this can only be set into motion when resolution process fails. Earlier the Law had designated “Debt Recovery Tribunals“ (DRT) as the adjudicating body having the wider presence than the “National Company law Tribunal” (NCLT) which earlier, only adjudicated for Corporate Insolvency but the 2019 Amendment in IBC, has designated NCLT as the adjudicating body granting relief to both creditors and personal guarantors for fast and easy disposal.

In the month of December, 2019, the first Insolvency Petition was filed, in Hyderabad NCLT’s Amaravti Bench. A Personal Guarantor by the name of Mr. Omkaram Venkata Ramana, who had named himself as the personal guarantor for five firms with a total default of more than Rs. 38 crores of bank loans filed a petition to initiate Personal Insolvency Resolution Process. Bank of India, the sole banker to the five companies, had earlier attempted auctioning the personal assets of the promoter offered as guarantee, but could not succeed. Latest amendment in IBC, has enabled creditors as well as personal guarantors to approach the Tribunal seeking to initiate proceedings against personal guarantors. Earlier lenders were moving to Debt Recovery Tribunals against the personal guarantors now the they can approach NCLT against personal debtors in order to settle claims in a time bound period.

In the words of Mr. Injeti Srinivas, Corporate Affairs Secretary, “Personal Insolvency regime is expected to be fully operational within a period of one year and a non-adjudicatory process is being worked out for entities having very small exposures“. Corporate Affairs Ministry is keen to develop a market place for stressed assets in order to achieve maximum participation and value of such assets. There are several challenges in the process of introduction of the Personal Insolvency Regime, as it is a very large subject because it will bring in every type of borrower in its ambit. The Corporate Ministry’s vision is to push the non-adjudication process that would be an online verification based system where the borrower’s assets and financial status could be ascertained and accordingly insolvency could be determined and relief could be granted. It further aims to include cross-border insolvency and group insolvency in the agenda.  

Though Personal Insolvency is at it’s very initial stage it brings hope for a number of lenders, who are stuck with insolvent companies and are backed by personal guarantors. As personal guarantors were not answerable to the NCLT before the 2019 amendment companies were taking advantage of the situation and were happy to be prosecuted under DRT as there is no time restrain.

Personal Insolvency was first introduced in Ireland in 2012. Personal Insolvency or Personal Insolvency Arrangement (PIA) that was first codified in Ireland under their Personal Insolvency Act, 2012. The act seems to have achieved its purpose as in the year 2019 alone, 1334 protective certificates were filed by the Personal Insolvency Practitioner (PIP) out of which 1197 arrangementswere sent for approval from creditors and a total number of 978 arrangements (Debt Relief Notice (DRN), Debt Settlement Arrangements (DSA) and Personal Insolvency Arrangements (PIA) ) were approved by the creditors. It is much hoped that India will also benefit by personal insolvency of guarantors.

Rishabh Mahipal


The Indian Lawyer


In a recent case of Pandit Malhari Mahale vs. Monika Pandit Mahale 2020, the Supreme Court passed an Order dated 10-01-2020, whereby the Court observed that an application for amendment of plaint can be allowed by a court even after the trial has begun only on the ground that such additional plea could not have been raised by the plaintiff before the commencement of trial and that the court is satisfied that such an amendment is necessary to decide the real dispute between the parties.

Generally, an application for amendment of plaint is made under Order VI Rule 17 of Civil Procedure Code 1908 as amended thereof, which provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

In the present case, a Suit of Partition was filed by the Plaintiff-Respondent. Upon reaching the stage of evidence, an Application for Amendment of Plaint was filed by the Plaintiff-Respondent, which was allowed by the Trial Court and subsequently, by High Court in Appeal, on the grounds such an amendment could not have been raised before commencement of trial.

Thereafter, the Defendant-Appellant filed an appeal in the Supreme Court against the Order of the High Court allowing the Amendment Application, on the ground that the amendment could not have been considered unless the court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

But the Apex Court held that no finding or reasoning has been given by the Trial Court and the High Court as to on what grounds the Courts are satisfied that in spite of due diligence, the Party could not introduce amendment before commencement of the trial, and thus, dismissed the Order of the Trial Court and the High Court.  

Priya Rana

4th year, Galgotias University

Intern, The Indian Lawyer


Harini Daliparthy

Senior Legal Associate, The Indian Lawyer


The Delhi High Court in the case of STCI Finance Ltd. v. Sh. Shreyas Kirti Lal Doshi & Anr. passed a Judgment dated 14/01/2020, where the High Court has reiterated the principle that the scope of an arbitration agreement is wide enough to include the non-signatories who are parties to a dispute in order to enable signatory parties to arbitrate the subject disputes. The Single Bench of Justice V. Kameswar Rao was hearing an Application filed by the Defendant under Section 8 of the Arbitration and Conciliation Act, 1996.

In the present matter the Plaintiff filed a suit for recovery of approximately Rupees Ten Crores. In the said case the Borrower Company stopped making payments to the Plaintiff Company under Loan Accounts resulting in overdue payments. A Demand Notice was issued by the Plaintiff for pending payments. The Defendants while placing reliance on Chloro Controls India Pvt. Ltd. v. Severn Trent Water Purification, 2013 contended that in view of the commonality of subject matter and transactions under the Loan Accounts including the Deeds of Guarantee and Share Pledge Agreements, it is a fit case for the Court to pass appropriate directions under Section 8 of the Arbitration and Conciliation Act, 1996 referring all the disputes between the parties to be decided by a sole Arbitrator. On the other hand the Plaintiff Company while referring to the case of SMS Tea Estates v. Chandmari Tea Company 2011 argued that the Supreme Court had held that even if multiple agreements have been entered into between the parties; Arbitrator can only be appointed with regard to the disputes relating to agreement containing arbitration clause. They further submitted that there was no arbitration clause in the Deeds of Guarantee, Facility Agreements, and as such an arbitration clause cannot be read into the same.

Dismissing the Application filed by the Defendants on the ground that it was misconceived the High Court held that in STCI Finance (supra) the Court had distinguished the judgment of Chloro Controls India Pvt. Ltd. v. Severn Trent Water Purification as in that case the Supreme Court held that a non-signatory or a third party could be subjected to arbitration without their prior consent but this would only be in exceptional cases. It would be essential for the Court to ascertain that there was a clear intention of the parties – both the signatory as well as non- signatory – to refer all disputes between all parties to the Arbitral Tribunal to resolve the disputes by arbitration. The Court would examine the exceptions on the touchstone of the direct relationship to the party signatory to the arbitration agreement, direct commonality of the subject matter and the agreement between the parties being a composite transaction.

Hence the principle laid down in Chloro Controls (supra) that has made non-signatory parties, parties to an arbitration agreement, if there is commonality of subject matter has been followed. The said principle enables disputes to be resolved between non-signatories parties thereby bringing closure to disputes that hither to took years to be decided.





Acid attack or acid throwing is a form of violent assault on the body of another by the use of hydrochloric, sulfuric and nitric acids, with the intention to disfigure, maim, torture or kill, the victim.

In the landmark case of Laxmi v. Union of India, 2014, an acid attack survivor, Ms. Laxmi Agarwal (Petitioner) had filed a public interest litigation (PIL) in the Supreme Court seeking ban on the sale and use of acid. The Apex Court passed an Order dated 18-07-2013 whereby the following guidelines were issued on restriction and regulation of sale of acid:

1- Over the counter sale is prohibited unless the seller maintains a register recording the details of the acid purchased, purchaser, reasons for such purchase, etc

2- Sellers shall sell the acid only after the purchaser has shown a photo ID proof and an address proof

3- Sellers shall declare the stocks of acid with the Sub-Divisional Magistrate within 15 days, otherwise, such stock would be confiscated and fine may be imposed on the seller

4- Sellers shall not sell the acid to any person below 18 years of age

5- Educational, research institutions, laboratories, hospitals, government departments etc would also have to keep a register of usage of acid, appoint a person who would be in-charge of safe-keeping of acid within such premises, etc

6- Government to provide funds under a separate scheme as compensation to acid attack victims or their dependents, which would be a minimum of Rs. 3 Lakhs, etc.

7- State Governments and Union Territories have to frame rules to regulate sale of acid and corrosive substance.

8- Government to work towards making acid attack offence cognizable and non-bailable.

Thereafter, amendments were made to the Criminal Laws, vide Criminal Amendment Act of 2013, which made following separate provisions for acid violence. Earlier, acid attack offence was considered under a general category of ‘grievous hurt’:

i) For voluntarily causing grievous hurt by use of acid, etc.— Minimum 10 years imprisonment, extendable to life imprisonment, and an amount of fine that would be just and reasonable to meet the medical expenses of the treatment of the victim

ii) For voluntarily throwing or attempting to throw acid, etc. –5 to 7 years imprisonment, extendable to life imprisonment, and fine.

iii) Compensation by State Government

The Courts have even gone to the extent of imposing death penalty on offenders who have committed the brutal act of acid attack, resulting in death. For instance, in 2016, the Bombay High Court imposed death penalty to an offender who committed the gruesome act of acid attack on the victim, namely, Ms. Preeti Rathi, which resulted in unbearable pain, loss of vision, face disfiguration, multiple organ damage, and death.

Thus, although there have been amendments in law, introduction of guidelines for regulation of sale and usage of acid, etc, but incidents of acid attacks have been on high. But it is hoped that the Government takes impromptu steps to curb such incidents and the Courts dispose of the matters in a fast track manner.

Riya Goyal

4TH Year Student, Galgotias University, Greater Noida

Intern, The Indian Lawyer


Harini Daliparthy

Senior Legal Associate

The Indian Lawyer