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The Supreme Court had recently delivered its judgment in the case of Phoenix Arc Private Limited v Spade Financial Services & Ors. This judgment was headed by Justice DY Chandrachud. Further, the judgment was also divided into sections in order to facilitate better analysis.

A. The Appeals

There were 2 sets of appeals that were made in this case. Initially, the NCLT had held that AAA Landmark Pvt. Ltd. and Spade have to be excluded from the CoC which was formed in relation to the CIRP initiated against AKME Projects Limited. It was primarily done because of the fact that NCLT had held that the following entities cannot be held as financial creditors as they were related parties of the Corporate debtor and hence must be excluded from the CoC. NCLAT had reversed the decision that they were not the related parties to the Corporate Debtor but held that they can be considered as financial creditors.

B. CIRP for the Corporate Debtor

On April 2018 a CIRP was initiated against the Corporate Debtor. In which Spade, along with its subsidiary AAA had filed their claims against the Corporate Debtor. In the CoC, the IRP rejected the claim of Spade stating that its claim cannot be considered within the scope of financial debt under section 5(8) of the IBC as there was an absence of consideration for the time value of money. Further, the claim of AAA was also rejected on the ground that its claim of being considered as the financial creditor was filed after the expiry of the period stipulated for the filing of such claim.

C. Whether Spade and AAA are Financial Creditors of the Corporate Debtor

Under section 5(7) of the IBC, a person can be held as a financial creditor if a financial debt is owed to it. Further, under section 5(8), a financial debt will be disbursed against consideration for the time value of money. The court in Swiss Ribbons Pvt. Ltd. v UoI has defined these terms in its judgment. Further, reliance was also made on the case Pioneer Urban Lands and Infrastructure Ltd. vs UoI which defined the terms “disbursed” and “time value for money”. The court also considered the Insolvency Law Committee’s interpretation of “time value” to mean as compensation or the price paid for the length of time for which the money has been disbursed.

D. Whether Spade and AAA are related parties

In order to understand the relation of Spade and AAA with the Corporate Debtor, it was crucial for the court to understand the relation between Anil Nanda and Arun Anand. After submissions by the counsels of both the parties and the evidences submitted before the tribunals as well, the court came to the conclusion that the transactions between AAA and the Corporate Debtor were collusive in nature and AAA along with Spade were related parties to the Corporate Debtor.

E. Whether Spade and AAA can be excluded from the CoC

The court held in the present case that AAA and Spade were related parties within the meaning of section 5(24) of the IBC. Further, there also existed a long-standing relationship between Mr. Arun Anand and Mr. Anil Nanda. Hence, the transactions between AAA and Spade with the Corporate Debtor could be considered to be collusive in nature. Which further means that allowing the entities in the CoC would definitely have an effect over the other financial creditors.

The court held in its decision that:
  1. The decision of the NCLAT, in as much as it referred to Spade and AAA as financial creditors, is set aside.
  2. The decision of the NCLAT, in as much as it referred to Spade and AAA as related parties of the Corporate Debtor under Section 5(24), is affirmed.
  3. The decision of the NCLAT, in as much as it excluded Spade and AAA from the CoC in accordance with the first proviso of Section 21(2), is affirmed

Reported By – Tanuj Sharma

The Allahabad High Court on 21st January i.e last week dismissed a plea which talks about live body donation i.e (Jeevit Deh Daan). The petitioner plea to legally allow live body donation of the human body and all his living organs and tissues.

The Petition

The plea further requested to allow doctors/hospitals/institutions to lawfully carry out the necessary medical procedure for Live Body Donation i.e Jeevit Deh Daan. The plea further states that he wants to help the extremely needy people by donating his living organs and tissues.

He also stated his rights according to Article 21, of the Constitution of India, to walk into an operation theatre of a suitable facility at a suitable time and for making multiple gifts of life to desperately suffering and dying individuals.

In reply to which court stated,
Section 9 of the Transplantation of Human Organs and Tissues Act, 1994, the court observed that this provision stipulates restrictions on removal and transplantation of human organs and tissues or both.

The court lastly said, “Since ample provisions have been made in the Act of 1994 as regard to removal, storage and transplantation of human organs and tissues for therapeutic purposes, we are not inclined to grant the relief as sought for by the petitioner in this petition being misconceived.”

Consequently, the petition failed and was dismissed.

Case title – Ranjan Srivastava v. Union of India [Public Interest Litigation (PIL) No. – 49 of 2021]

Reported By – Aishwarya Daftari

BACKGROUND

On 2nd February 2021, Mandeep Punia, who is a freelance writer for THE CARAVAN was granted bail by Chief Metropolitan Magistrate, North District, Rohini Courts Delhi.
Punia was accused of allegedly obstructing the police personnel in the course of their duty, he was detained by the Delhi police on 30th January at the Singhu border between Delhi and Haryana where he was covering the on-going farmer’s protest.
Various journalists came in his support and claimed that he was arrested on account of one of his Facebook post a day before his arrest, in which Punia narrated the police personnel connivance when a group of fifty-sixty showered stones on the protestors.

Court Proceedings

Courts of Metropolitan Magistrate are at the second-lowest level of the Criminal Court structure in India. According to Section 16 of the Criminal Procedure Code, 1973 (CrPc) in every metropolitan area, there shall be established as many Courts of Metropolitan Magistrates, and at such places, as the State Government may, after consultation with the High Court, by notification, specify. Metropolitan Courts are to be established at such places in every metropolitan area having a population of ten lakh or more. It has jurisdiction throughout such metropolitan areas. The presiding officers of such courts shall be appointed by the High Court.
A Metropolitan Magistrate is a first-class magistrate under the general control of the District & Sessions Judge and is subordinate to the Chief Metropolitan Magistrate.

In the FIR Punia has been charged under the following IPC sections:
• Section 186, which deals with voluntarily obstructing public servant in discharge of public functions.
• Section 332, which deal with voluntarily causing hurt to deter public servant from his duty.
• Section 353, which covers assault or criminal force to deter public servant from discharge of his duty.

• Section 34, which covers acts done by several persons in furtherance of common intention.

Contentions

Advocate Sarim Naved, counsel appearing for Punia, contended before the Court that he is innocent and submitted that Punia had been peacefully carrying out his duties along with other journalists at the protest site. It was also highlighted that another journalist arrested by the police along with Punia was released later. On the other hand, Punia was not released because he didn’t possess an ID card, being a freelance journalist.
The State’s counsel, APP Banduraj Baghrawat opposing the grant of bail submitted that Punia stood accused of serious offenses of committing nuisance and instigating the protestors, and contended that he may indulge in instigating the protest in the future.

The Judgement

The court while analyzing the matter noted the 7 hours delay in Punia’s arrest and filing of FIR and also emphasized the very fact that the victims, witnesses, and the complainants were all police officials the Court concluded that there was no possibility of Punia influencing the course of the case if he were enlarged on bail.

“There is no possibility that the accused/ applicant can able to influence any of the police officials. Admittedly, the accused is a freelance journalist. Moreso, no recovery is to be effected by the accused person, and keeping the accused further in Judicial Custody would not serve any cogent purpose. It is well settled legal principle of law that ‘bail is a rule and jail is an exception’. Hence, considering the totality of facts and circumstances of the present case, submissions on behalf of both the parties as well as keeping in view the period of detention of the accused in judicial custody, he is admitted to bail”, reads the order
The court directed the release of Punia on bail for a bail bond of Rs. 25,000 subjected to other bail conditions.

Reported By – Anjali

An aerobics instructor Khing Hnin Wai appeared unheedingly as a convoy of armoured vehicles drove by – accidentally captured Myanmar’s military coup-in-progress in a bizarre video. Myanmar moves back to military rule after exercising democracy for few years, Army Chief Min Aung Hlaing is now holding “legislative, judicial and executive powers” Aung San Suu Kyi who is considered as an icon of democracy was detained under house arrest on Monday hours before the new session of the parliament was about to set up.

Myanmar

Myanmar, also known as Burma, is in South East Asia and neighbours of India, China, Laos, Bangladesh and Thailand There are many ethnic groups including Rohingya Muslims, The name of the country has been a bone of contention, particularly in the early 21st century, focusing mainly on the political legitimacy of those using Myanmar versus Burma The ruling military changed its name in English to Myanmar in 1989, a year after thousands of people were killed in a crackdown on a popular uprising.

Aung San Suu Kyi

Aung San Suu Kyi served as State Counsellor of Myanmar and Minister of Foreign Affairs from 2016 to 2021. She has served as the president of the National League for Democracy (NLD) since 2011, having been the General Secretary from 1988 to 2011. She played a pivotal role in Myanmar’s transition from military junta to partial democracy in the 2010s, She was awarded the Nobel Peace Prize while under house arrest in 199Aung San Suu Kyi actively campaigned for the restoration of democracy in the 1990s which led to her widespread popularity and spent 15 years in detention for creating awareness regarding democratic reforms.

Background

November Elections result has led to an increase in tensions between NLD and military The military -backed party had claimed fraud in vote count demanding a rerun of votes, which the election -commission doesn’t approve of for the lack of any evidence. The political scenario of the junta-led Myanmar began transforming around 2010. In 2008, the military wrote a new Constitution ensuring Generals’ interests would be protected even in the transition. Than Shwe, who was the primary face of Myanmar’s politics from 1992, transformed the power structure, promoted his loyal young soldiers’ Elections, were conducted under the new Constitution. The NLD, denied to recognise the Constitution, and also boycotted the 2010 election, USDP won those elections and in the next five years, Army lost control over the government and society. Political prisoners, including Ms Suu Kyi, were released. Regulations on media, scrutiny over it and censorship fell. Then, U.S. President Barack Obama visited Myanmar in 2012, referring to the betterment of the relationship between Myanmar and the U.S. Ms Suu Kyi’s party also switched from its earlier stance as they embraced the Constitution which army framed in 2010. NLD stood successful at the 2015 elections, which was country’s first free and fair election ever held amongst the various political parties that participated, NLD was successful in making Government, This government brought the hope with them for the implicit transition, to a full-fledged democracy.
But the Constitution, framed in 2008 had enough clauses to prevent such a transformation. Constitution provided that the President must have served military, and the President’s spouse or children “shall not be subject of a foreign power or citizen of a foreign country”. Ms Suu Kyi has two sons, who are British citizens, hence she cannot become the President. The Constitution made it mandatory that the Defence and Interior Ministries would come under the control of the military. 25% of the total seats in Parliament (166 out of the 664-member house) are reserved for the military, giving military a veto power against any proceeding leading, regarding a change in the Constitution. Hence, even after military, allowed the transfer of power to an elected government, it made sure that it will run and drive integral affairs such as defence and internal security policies.

Before 2020 election were about to held, thousands of Rohingya Muslims were killed and many were forced to migrate or run away to neighbouring countries especially in Bangladesh when the army launched a brutal clampdown in Rakhine state over ethnic minorities (Rohingya) on the pretext that they are immigrants and citizenship is denied to them which resulted in the outright victory of NLD winning 396 seats while USDP landing up with only 33 seats.

Reported By – Anjali

Introduction

The Bench of Bombay High Court, Nagpur has said last month, that the zip of the pants of the accused being open at the relevant time of the incident or holding the hand of a minor is not to be considered as sexual assault as it is defined under Section 7 of the Protection of Children from Sexual Offences (POCSO) Act (see also: Libnus v. State of Maharashtra).
Justice Pushpa Gandewali on January 15 delivered this judgment, four days after her controversial judgment on “skin-to-skin” contact being a determining factor for sexual assault under the POCSO Act. This judgment was passed on an appeal filed by a 50-year-old man challenging a sessions court’s order convicting him for sexually assaulting and molesting a five-year-old girl.

The complaint was lodged by the mother of the girl accusing, that she saw the accused whose pant’s zip was opened and was holding the hand of her daughter. She further testified that her daughter informed her that the appellant/accused removed his penis from the pant and asked her to come to the bed for sleeping.

Section 7 of POCSO Act

Section 7 of POCSO Act states that: “Sexual assault – Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault”.

Court’s Ruling

The Court stated that the definition of ‘sexual assault’ is something that is ‘ a physical contact with sexual intention without penetration’. But the court noted that there was no such actual touching of the private parts of the body happenings in this case. The court explains the words “any other act” from the definition as should be interpreted Ejusdem Generis with the beginning portion of the definition (Ejusdem generis is a principle of statutory interpretation which says that meaning of general words which follow a specific word is limited by the meaning of the special words).
So according to the Court holding hands of a minor or unzipping of pants can not be considered as sexual assault and does not fit in its definition. According to POCSO, ‘sexual assault’, when committed against a child aged less than 12 years, it will become ‘aggravated sexual assault’ under Section 9, which is punishable under Section 10.
The Court has however considered the offense of Sexual Harassment under Section 354A(1)(i), which deals with “physical contact and advances involving unwelcome and explicit sexual overtures”, is attracted in the case.
So, therefore the court held that 5 months of imprisonment that the accused already has gone through is enough punishment to suffice.
The court states that “Considering the nature of the act, which could be established by the prosecution and considering the punishment provided for the aforesaid crimes, in the opinion of this Court, the imprisonment which he has already undergone would serve the purpose”.

Reported by – Komal Dhore

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