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Whoever maliciously causes energy to be wasted or, with intent to cut off the supply of energy, cuts shall be punishable with imprisonment for a term which may extend to two years, or with fine: : High Court Of New Delhi

Petitioner seeks a direction to the respondent-BSES-RPL to install the new electricity connection for them to lift and stilt parking area of the property, and the same issue was held in the judgement passed by a Single bench judge HON’BLE MR. JUSTICE SANJEEV SACHDEVA, in the matter REENU MALHOTRA V. STATE OF DELHI NCT AND ORS dealt with an issue mentioned above. In this case, the learned counsel for the petitioner submits that the electricity meter has been sanctioned, however, the same has not been installed for servicing the lift and the common areas, But according to the Learned counsel appearing for BSES-RPL under instructions, submitted that he has no objection to the installation of the electricity meter, however, the objection was being raised by other co-owners of the property. Meanwhile Learned counsels appearing for respondents no. 4 and 5 submitted that there are civil disputes pending inter-se the parties and the petitioner is seeking to have rights established in the property by way of installation of an electricity meter, and also there is no threat of disconnection of the said supply. Learned counsel appearing for the petitioner submitted that the electricity is being provided from a meter installed at the second floor, which owns respondent no. 6, who does not even reside therein. Later because today there is no dispute that the lift and common areas are being serviced by an electricity connection, though W.P.(C) 2356/2021 3 in the name of respondent no. 6, the grievance of the petitioner is premature, It was mentioned that the BSES-RPL would install the electricity connection for the lift and common areas. The court perused the facts and argument’s presented, it thought that- “It was further clarified that grant of the electricity connection, if any, to the petitioner would not amount to accepting or acknowledging the right of the petitioner to the subject property and the same would be without prejudice to the rights and contentions of the parties and would have no bearing on the civil suits pending between the parties. The petition is accordingly disposed of in the above terms”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 11.11.2021 W.P.(C) 2356 2021 REENU MALHOTRA ..... Petitioner STATE OF DELHI NCT AND ORS Respondents Advocates who appeared in this case: For the Petitioner: Mr. B.P. Singh Advocate For the Respondent: Mr. Sunil Fernandes Standing Counsel BSES RPL with Mr. Shubham Sharma Advocate for R 2 & 3 Mr. Dhruv Dwivedi & Mr. Shaikh Bakhtiyar Advocates for R 4 & 5 CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J.The hearing was conducted through video conferencing. Affidavit of service has been filed indicating that notice has been served on respondent no. 6. None appears for respondent no. 6 despite service. Petitioner seeks a direction to the respondent BSES RPL to install the new electricity connection for the to lift and stilt parking common area of the property bearing No. 17 Road No. 42 W.P.(C) 2356 2021 Punjabi BaghNew Delhi. Learned counsel for the petitioner submits that the electricity meter has been sanctioned however the same has not been installed for servicing the lift and the common areas. Learned counsel appearing for BSES RPL under instructions submits that he has no objection to installation of the electricity meter however objection was being raised by other co owners of the property. Learned counsels appearing for respondent no. 4 and 5 submit that there are civil disputes pending inter se the parties and petitioner is seeking to have rights established in the property by way of installation of an electricity meter. They further submit that the lift and common areas are being serviced by an existing electricity meter and there is no threat of disconnection of the said supply. Learned counsel appearing for the petitioner submits that the electricity is being provided from a meter installed at the second floor which is in possession of respondent no. 6 who does not even reside therein. He submits that there is an apprehension that the supply may be disconnected. In view of the fact that today there is no dispute that the lift and common areas are being serviced by an electricity connection though W.P.(C) 2356 2021 in the name of respondent no. 6 the grievance of the petitioner is premature. However in case the electricity supply to the lift or common areas is disconnected by respondent no. 4 to 6 or any one action on their behalf petitioner would be at liberty to approach BSES RPL in which case after due inspection and subject to completion of commercial and other formalities BSES RPL would install the electricity connection for the lift and common areas. It is further clarified that grant of the electricity connection if any the petitioner would not amount to accepting or acknowledging the right of the petitioner to the subject property and the same would be without prejudice to the rights and contentions of the parties and would have no bearing on the civil suits pending between the parties. 10. The petition is accordingly disposed in the above terms. 11. Copy of the order be uploaded on the High Court website and be also forwarded to learned counsels through email by the Court NOVEMBER 11 2021 SANJEEV SACHDEVA J W.P.(C) 2356 2021

When the law requires a certain thing to be done in a particular manner, it has to be done in such manner or not at all – Meghalaya High Court

While it is true that as to whether the security of the State is at stake is a matter that the President or the Governor, as the case may be, must be satisfied with, the three limbs of the second proviso to Article 311(2) of the Constitution cannot be made into watertight compartments. These were upheld by the High Court of Meghalaya through the learned bench of Hon’ble Justice Sanjib Banerjee and Hon’ble Justice W. Diengdoh in the case of Sanjeeb Ch. Marak Vs. State of Meghalaya & ors. (MC(WA)/1/2022) The crux of the case is a confidential report was issued by the Department alleging that the appellant had provided information relating to police operations and the movement of the banned and dangerous property called the Garo National Liberation Army. The dismissal order was directed at the damage suffered by the police and a confidential report thus dismissing the appellant immediately without any formal investigation. The plaintiff has questioned the action of not holding the investigation and writing it down in writing by the appropriate authorities. According to him, “the mandatory inquiry may not be dispensed with unless the reasons therefore are recorded as to why it is not reasonably practicable to hold such inquiry”. Thus, the eviction order has no legs. Also, in the event of internal security, the satisfaction of the President or the Governor is also required. The appellate authority recorded that the papers had been examined and it was evident that the case was that the appellant had links with the banned outfit and had passed on information about police movements and operations to the outlawed organisation. The appellate authority found that “the act was very grave in nature considering the fact that he was a member of the police force.” The appellate authority recorded that the conduct of the appellant had exposed police personnel to great risk and rendered several operations futile and such conduct was unbecoming of a member of a police force. The appellate authority expressed satisfaction that senior police officials had dealt with the matter in an appropriate manner and the obvious lack of loyalty on the part of the appellant called for his summary dismissal. Again, the letter of the Article 311(2)(b) of the Constitution may not have been complied with in the appellate authority finding any express reason for it not being reasonably practicable for an inquiry to be held against the appellant before punishing him. The writ court found that the appellant herein had admitted to having links with the banned organisation. The writ court also held that since the matter pertained to the security of the State, the decision to summarily remove the appellant from service did not warrant any interference. The learned bench of Hon’ble Justice Sanjib Banerjee and Hon’ble Justice W. Diengdoh, subsequently, dismissed the petition and observed that that the provisions of Art 311(2)(b) had been complied with and that some latitude had to be given to the police authorities especially in a scenario where no case of malice in fact was made out. Also, a judicial note was given that it would be impractical to disclose the confidential information which would expose the identity of the sources or risk such sources to be cross-examined or their identities revealed. Also stating “It is elementary that when the law requires a certain thing to be done in a particular manner, it has to be done in such manner or not at all. The rule applies with more vigour in respect of any mandate as found in any provision of the suprema lex which is the Constitution. At the same time, no adjudication is made without reference to the context and the surrounding circumstances, be they geographical or situational or even time-specific or the like. It is also possible that the reason for dispensing with the inquiry is self-evident in the order impugned despite it not being expressly spelt out”

Serial No.04 Supplementary List HIGH COURT OF MEGHALAYA AT SHILLONG MCNo.1 2022 Date of Order: 07.02.2022 Sanjeeb Ch. Marak Vs. State of Meghalaya & ors Hon’ble Mr. Justice Sanjib Banerjee Chief Justice Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) For the Respondent(s) i) Whether approved for reporting in Law journals etc.: Mr. KC Gautam Adv Mr. B Bhattacharjee AAG with Ms. ZE Nongkynrih GA ii) Whether approved for publication in press: JUDGMENT:(Oral) The marginal delay of about 12 days in preferring the appeal is condoned. The appeal is taken on record. 2. The short grievance of the appellant who has been dismissed from the Meghalaya police service by an order dated January 15 2016 is that the precondition to dispensing with an inquiry in terms of Article 311(2)(b) of the Constitution was not complied with in the appellant being summarily dismissed from service without being afforded an opportunity to deal with the charges levelled against him. 3. Article 311(2) of the Constitution is a safety net that is provided to every person who is a member of a civil service of the Union or of an all India service or a civil service of a State or holds a civil post under the Union or a State. It is constitutionally mandated that such a person shall be dismissed or removed or reduced in rank only upon an inquiry in which he WWW.LIVELAW.IN has been informed of the charges levelled against him and given a reasonable opportunity of being heard in respect thereof. The second proviso to the clause inter alia mandates that the clause that is to say Article 311(2) of the Constitution would not apply in certain situations: “311. Dismissal removal or reduction in rank of persons employed in civil capacities under the Union or a State. 1) .... 2) .... Provided that .... Provided further that this clause shall not apply a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge or b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to hold such inquiry or c) where the President or the Governor as the case may be is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. 3) ....” 4. The appellant asserts that the three situations covered by the relevant proviso are distinct and do not overlap. According to the appellant a relevant person may be dismissed or removed from service or reduced in rank following his conviction on a criminal charge which implies the conviction by a criminal court. The second ground under which the clause would be inapplicable would be when the authority empowered to dismiss the relevant person is satisfied for some reason that it is not reasonably practicable to hold the inquiry envisaged in the substantive provision of the clause. However there is a caveat to the second condition: in that the reason as to why it is not practicable to hold such inquiry should be recorded by the relevant authority in writing. Thus according to the WWW.LIVELAW.INWWW.LIVELAW.IN appellant the mandatory inquiry may not be dispensed with unless the reasons therefor are recorded as to why it is not reasonably practicable to hold such inquiry. In the absence of reasons the appellant maintains the relevant order would have no legs to stand on. 5. For the completeness of the discussion the third limb of the second proviso has also to be covered. Such third limb provides for the satisfaction of the President or the Governor as the case may be that in the interest of the security of the State it is not expedient to hold such inquiry. 6. Though the third limb of the relevant proviso does not come into play in the present case the appellant has laboured on such aspect to emphasise that if it is the security of the State that is in question it is only for the highest office of the President or the Governor to be satisfied in such regard no satisfaction on such count even expressly mentioned by the disciplinary authority would allow the inquiry to be dispensed with. In other words the appellant seeks to compartmentalise the three situations and suggest that the entirety of the conditions in one situation must be complied with and it would not do for a disciplinary authority to dispense with the inquiry on the ground that the interest of the security of the State demands 7. In the present case a confidential report departmentally rendered found that the appellant had passed on information pertaining to police operations and movements to a banned and extremist outfit by the name of Garo National Liberation Army. At the time that such confidential report was obtained in or about 2015 16 there was a spurt in the violent and WWW.LIVELAW.IN nefarious activities undertaken by the outfit and it appears that several police personnel lost their lives in the course of dealing with the outfit. 8. The order of dismissal of January 15 2016 referred to the confidential report of the appellant herein having passed on information to the banned outfit. The order alluded to the casualties suffered by the police and opined that in the light of the material available against the appellant it was incumbent that he be removed from service immediately without any formal inquiry. However the relevant order did not expressly indicate why it was not reasonably practicable to hold an inquiry and give the appellant an opportunity to deal with the charges levelled against him before taking any punitive action. To such extent the appellant is justified in the assertion that the letter of Article 311(2)(b) of the Constitution may have not been followed. 9. An initial challenge was launched against the order of January 15 2016 in proceedings under Article 226 of the Constitution which culminated in an order passed on August 6 2019 to the effect that since the appellant herein had preferred a statutory appeal from the order of dismissal the appellant had to await the outcome thereof before approaching this Court in its extraordinary jurisdiction. A direction was issued for the expeditious disposal of the appeal which resulted in the appellate order being passed on October 23 2019. 10. The appellate authority recorded that the papers had been examined and it was evident that the case was that the appellant had links with the banned outfit and had passed on information about police movements and operations to the outlawed organisation. The appellate WWW.LIVELAW.IN authority found that “the act was very grave in nature considering the fact that he was a member of the police force.” The appellate authority recorded that the conduct of the appellant had exposed police personnel to great risk and rendered several operations futile and such conduct was unbecoming of a member of a police force. The appellate authority expressed satisfaction that senior police officials had dealt with the matter in an appropriate manner and the obvious lack of loyalty on the part of the appellant called for his summary dismissal. Again the letter of the Article 311(2)(b) of the Constitution may not have been complied with in the appellate authority finding any express reason for it not being reasonably practicable for an inquiry to be held against the appellant before punishing him. 11. In the judgment and order impugned dated December 17 2021 the Court of the first instance recorded the submission of the parties and noticed the several authorities relied upon by the appellant herein in support of the contention that the reason had to be indicated before any inquiry could be dispensed with. The writ court also recorded that the records pertaining to the proceedings had been placed before the Court and the writ court took the trouble of going through the records. 12. Indeed the writ court found that the appellant herein had admitted to having links with the banned organisation. In the light of such discovery from the records the writ court held that it would have been futile to conduct any inquiry since the material in the confidential report regarding the appellant’s links with the banned outfit stood corroborated by the appellant’s admission which was evident from the records. The writ court also held that since the matter pertained to the security of the State the WWW.LIVELAW.IN decision to summarily remove the appellant from service did not warrant any interference. 13. Reasons are indispensable in any form of adjudication or assessment whether judicial or quasi judicial. Reasons are the links that indicate what impelled the adjudicating mind to arrive at the conclusion after the journey through the facts that were presented before the adjudicating authority. As to the quality of reasons it has often been said that several volumes may be wasted without indicating any iota of reason while a terse sentence covering two or three lines may provide adequate reasons. It is also possible to infer reasons from a relevant order when no express reasons may be found therein. 14. Here is a case where a confidential report was obtained indicating the links of the appellant herein with a banned outfit that the appellant’s employer was engaged with to quell the disruptive activities initiated by such outfit. Senior police personnel went through the confidential report and found sufficient merit therein. Even if for the present discussion the admission of the appellant is not taken into consideration since that has not been expressly referred to in either the original order of January 15 2016 or the appellate order of October 23 2019 what is evident is that both the disciplinary authority and the appellate authority found the material against the writ petitioner to be unimpeachable given that the nature of charge against the writ petitioner was that of betraying his employer and providing information to the banned outfit that the appellant’s employer was engaged in fighting. It may be reasonably inferred from the departmental orders impugned that it was not reasonably practicable to hold any inquiry. There WWW.LIVELAW.IN is no doubt that the spirit of the Article 311(2)(b) has been complied with and the same is evident both from the order of punishment and the appellate order dealing with the same. 15. While it is true that as to whether the security of the State is at stake is a matter that the President or the Governor as the case may be must be satisfied with the three limbs of the second proviso to Article 311(2) of the Constitution cannot be made into watertight compartments. This is particularly so since the appellant herein was a member of a police force and not in any other civil service. When a member of the police force was found betraying his own force and supplying information to an extremist outfit that the police organisation was trying to deal with it was justifiable on the part of the disciplinary authority to consider it to be not reasonably practicable to afford the writ petitioner an opportunity of dealing with the charge against him in the course of any inquiry. Some latitude has to be given to the police authorities especially in a scenario where no case of malice in fact is made out. 16. Judicial notice must be taken of the fact that the police obtain confidential information from undisclosed sources and it may neither be prudent nor practicable to expose the identity of the sources or risk such sources to be cross examined or their identities revealed. In such a scenario particularly with senior police officials having no axe to grind against the appellant having found that the material against the appellant was clinching the reason for dispensing with the inquiry is self evident and writ large in the departmental orders impugned without being expressly recorded. 17. Before parting with the matter a word of caution may be inserted. It is elementary that when the law requires a certain thing to be done in a particular manner it has to be done in such manner or not at all. The rule applies with more vigour in respect of any mandate as found in any provision of the suprema lex which is the Constitution. At the same time no adjudication is made without reference to the context and the surrounding circumstances be they geographical or situational or even time specific or the like. It is also possible that the reason for dispensing with the inquiry is self evident in the order impugned despite it not being expressly spelt out. 18. Though this is not to suggest that when reasons are required to be expressed they may only be inferred in certain situations particularly in the context of the present case when the reasons are obvious and apparent the mandate of the provision may be seen to have been complied with. 19. For the reasons aforesaid the judgment and order impugned dated December 17 2021 do not call for interference. WA No.1 of 2022 is 20. MCNo.22 is disposed of. 21. There will however be no order as to costs. W. Diengdoh) Judge Chief Justice Sanjib Banerjee) dismissed. “Lam DR PS”

Petitioners were released on bail after being arrested under Sections 147, 341, 323, 325, 379, 504, 506, 386, 307 IPC and 27 of the Arms Act, 1957: High court of Patna

The petitioners were apprehended under Section 147 IPC, “Punishment for rioting”, section 341, “Punishment for wrongful restraint” section 323, “Punishment for voluntarily causing hurt”, section 325, “ Punishment for voluntarily causing grievous hurt” and section 379, “Punishment for theft”, section 504, “ Intentional insult with intent to provoke breach of the peace” and sections 506, 386, 307 IPC, and 27 of the Arms Act, 1957, “Punishment for using arms.” This is in connection with Teghra PS Case No. 363 of 2019 dated 17.10.2019. This Judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 30th of July 2021 in the case of Ram Kumar Ray versus Sonu Kumar criminal miscellaneous No. 14576 of 2021, Mr. Mukesh Kumar represented as the advocate for the petitioner and Mr. Ajeet Kumar represented the state of Bihar as the additional Public Prosecutor, the proceeding of the court was held through video conference. The following are the facts of the case, the allegation against the petitioner is that they were party to demand of extortion by the co-accused who is the father of the petitionermo.2 the allegations against the petitioners were general and omnibus and the co-accused were held for assaulting the informant by hitting his head using the butt of the gun, petitioner no.2 was accused of taking away Rs. 55,000 and also the cash box from the poultry farm belonging to the informant. The counsel for the petitioners submitted that the allegations were false and have been instituted for oblique reasons, petitioner no.2 and his father being the neighbors of the informant were accused only due to some dispute regarding the Panchayati verdict. Regarding the allegation that petitioner no.2 took away Rs.55,000 is ornamental. Allegations against the brother of petitioner no.2 that he had given repeated blows on the head of the son of the informant using the butt of a gun, even though he is not the petitioner in this case, such allegations against the family of the petitioner are falsified because according to the injury report only two wounds have been found on the head no sign of repeated blows. The counsel further submitted that the petitioners have no other criminal antecedent.   The Additional Public Prosecutor for the state of Bihar held that clearly, the petitioners were a party to the demand of extortion and committed an assault on the son of the informant. However it is not controverted that the allegations against petitioner no.1 are general and omnibus while the allegations against petitioner no.2  took away Rs50,000 and cash box from the poultry farm of the informant.   After considering the facts and circumstances of the case the court decided that the petitioners will be released on bail upon furnishing bail bonds of Rs. 25,000 each with two sureties to the Chief Judicial Magistrate, under certain conditions laid down in Section 438(2) Cr.P.C. 1973  “(i) that one of the bailors shall be a close relative of the Patna High Court CR. MISC. No.14576 of 2021 dt.30-07-2021 4/4 petitioners, (ii) that the petitioners and the bailors shall execute the bond and give an undertaking with regard to the good behavior of the petitioners and (iii) that the petitioners shall co-operate with the Court and police/prosecution.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 145721 Arising Out of PS. Case No. 363 Year 2019 Thana TEGHRHA District Begusarai Ram Kumar Ray @ Ram Kumar @ Ramma Male aged about 33 years Son of Bhola Ray Resident of Village Bariyarpur Barauni Ward No.9 PS Teghra District Begusarai Sonu Kumar @ Pukka @ Rupesh Kumar Male aged about 19 years Son of Lalan Prasad Singh Resident of Village Barauni 3 Ward No.4 PS Teghra District Begusarai The State of Bihar ... Petitioner s For the Petitioner s For the State Mr. Mukesh Kumar Singh Advocate Dr. Ajeet Kumar APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ... Opposite Party s ORAL JUDGMENT Date : 30 07 2021 The matter has been heard via video conferencing 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioners on 22.07.2021 which was allowed. 3. Heard Mr. Mukesh Kumar Singh learned counsel for the petitioners and Dr. Ajeet Kumar learned Additional Public Prosecutorfor the State 4. The petitioners apprehend arrest in connection with Teghra PS Case No. 363 of 2019 dated 17.10.2019 instituted under Sections 147 341 323 325 379 504 506 386 307 of the Indian Penal Code and 27 of the Arms Act 1957 Patna High Court CR. MISC. No.145721 dt.30 07 2021 5. The allegation against the petitioners is that they were party to demand of extortion by co accused Lalan Singh who is also the father of petitioner no. 2 but against the petitioners it is general and omnibus whereas against two other co accused it is specific of giving blow by the butt of the gun on the head of the son of the informant whereas against the petitioner no. 2 it is also specific of taking away Rs. 55 000 as also the cash box from the poultry farm of the informant 6. Learned counsel for the petitioners submitted that a completely false and concocted case has been instituted for oblique reasons. It was submitted that the petitioner no. 2 along with his brother and father has been made accused for the reason that they are neighbours and there was dispute with regard to passage for which a panchayati was held and despite the verdict in favour of the petitioner no. 2 the informant did not obey the same and petitioner no. 1 had supported the petitioner no. 2 and his father in the said panchayati due to which there is false implication. It was submitted that the allegation that petitioner no 2 took away Rs. 55 000 is ornamental. Moreover learned counsel submitted that even if the allegation is taken at its face value the specific allegation is that another co accused who is the brother of petitioner no. 2 i.e. Nishu Kumar had given repeated Patna High Court CR. MISC. No.145721 dt.30 07 2021 blows on the head on the son of the informant by the butt of gun though not a petitioner herein even such allegation is falsified as only two wounds have been found on the head one being simple and another being grievous but there is no sign of any repeated blows. Learned counsel submitted that the petitioners have no other criminal antecedent. 7. Learned APP submitted that the petitioners were party to demand of extortion and also assault on the son of the informant. However it was not disputed that against petitioner no 1 the allegations are general and omnibus and against petitioner no. 2 the only specific allegation is of taking away of Rs. 55 000 and the cash box from the poultry farm of the informant. 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in the event of arrest or surrender before the Court below within six weeks from today the petitioners be released on bail upon furnishing bail bonds of Rs. 25 000 each with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate Begusarai in Teghra PS Case No. 3619 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further and further that one of the bailors shall be a close relative of the Patna High Court CR. MISC. No.145721 dt.30 07 2021 petitioners that the petitioners and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioners andthat the petitioners shall co operate with the Court and police prosecution. Any violation of the terms and conditions of the bonds or the undertaking or failure to co operate shall lead to cancellation of their bail bonds 9. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioners to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 10. The petition stands disposed of in the (Ahsanuddin Amanullah J

The method of issuance of certificates of apprenticeship is regulated as per the Section 21, Apprentices Act, 1961: The High Court of Jammu & Kashmir and Ladakh

Grant of a certificate only after the completion of the period of training as an apprentice and after appearance in a test to be conducted by the national council or any such agency authorized by the Central Government, to determine the proficiency in the designated trade, in which the apprentice has undergone apprenticeship training. The certificate can only be issued by the concerned regional board and none else. The aforesaid has been considered by the High Court of Jammu & Kashmir and Ladakh while adjudicating the case of  Ajay Kumar v. UT of J&K and others [ WP(C) No. 2264/2021 CM No. 8043/2021 Cav No. 1681/2021] which was decided upon by the single judge bench comprising Justice Dhiraj Singh Thakur and Justice Puneet Gupta  on 8th November 2021. The facts of the case are as follows. The petitioner came to be selected as an Assistant Operator, which selection came to be challenged by respondent No. 4 herein. The ground of challenge was that the petitioner herein did not satisfy the eligibility conditions prescribed by the advertisement notice. As per the advertisement notice, the eligibility condition prescribed was “Matric with certificate of apprenticeship in the Trade from a press of repute.” Instead of a certificate of apprenticeship, the petitioner had produced an experience certificate. The Tribunal allowed the petition, challenging the selection of the petitioner herein on the ground that the certificate produced by the petitioner was just an experience certificate and not an apprenticeship certificate, which is given by an authority under the Apprentices Act, 1961 and not by private individuals. The court perused the facts and arguments presented. It was of the opinion that “ Having considered the matter in detail, we cannot persuade ourselves to take a view different from the one expressed by the Central Administrative Tribunal, Jammu.  Be that as it may, this petition is found to be without any merit and is, accordingly, dismissed along with connected application.”

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU WP(C) No. 2264 2021 CM No. 8043 2021 Cav No. 1681 2021 Through: Mrs. Surinder Kour Sr. Advocate with Mr. Sunil Kumar Advocate Ajay Kumar UT of J&K and others …. Respondent(s) Through: Mr. Ejaz Lone Dy. AG Mr. Rahul Pant Sr. Advocate with Mr. Anirudh Sharma Advocate Coram: HON’BLE MR. JUSTICE DHIRAJ SINGH THAKUR JUDGE HON’BLE MR. JUSTICE PUNEET GUPTA JUDGE The petitioner challenges the judgement and order dated 20.07.2021 passed by the Central Administrative TribunalJammu whereby the selection and appointment of the petitioner to the post of Assistant Operator Divisional Cadre Jammu has been quashed. Briefly stated the material facts are as under: The petitioner came to be selected as an Assistant Operator which selection came to be challenged by respondent No. 4 herein. The 2 WP(C) No. 2264 2021 ground of challenge was that the petitioner herein did not satisfy the eligibility conditions prescribed by the advertisement notice. As per the advertisement notice the eligibility condition prescribed was “Matric with certificate of apprenticeship in the Trade from a press of repute.” Instead of a certificate of apprenticeship the petitioner had produced an experience certificate which reads as under: “Experience Certificate It is certified that Mr. Ajay Kumar S o Sh. Duni Chand R o Dungara Teh Billawar Distt. Kathua is working in our organization for the last three years as a Machine Operatorw.e.f. 2008 to June 2011. He is very Expert in Running the Printing Machine. His work and conduct remain satisfactory during the period he worked in our organization.” The Tribunal allowed the petition challenging the selection of the petitioner herein on the ground that the certificate produced by the petitioner was just an experience certificate and not an apprenticeship certificate which is given by an authority under the Apprentices Act 1961 and not by private individuals. A bare perusal of the advertisement notice prescribing the eligibility conditions would make it clear that in fact what was required was not an experience certificate but an apprentice’s certificate. The method of issuance of certificates of apprenticeship is regulated as per the Apprentices Act 1961 and in particular Section 21 which envisages grant of a certificate only after the completion of the period of training as an 3 WP(C) No. 2264 2021 apprentice and after appearance in a test to be conducted by the national council or any such agency authorized by the Central Government to determine the proficiency in the designated trade in which the apprentice has undergone apprenticeship training. The certificate can only be issued by the concerned regional board and none else. Having considered the matter in detail we cannot persuade ourselves to take a view different from the one expressed by the Central Administrative Tribunal Jammu. Be that as it may this petition is found to be without any merit and is accordingly dismissed along with connected application. Puneet Gupta) Dhiraj Singh Thakur) Judge Jammu Whether the order is speaking : Yes No Whether the order is reportable : Yes No

The Compensation Must Be Increased With The Dynamic Land Policies: In Bombay High Court

With the Changing Land Policies, Compensation Must Be Increased per Hectare. The land compensation was increased from Rs.10,500 per hectare to Rs.50,000 per hectare by the Reference Court, which the High Court Of Bombay upheld.  The honorable judge ANUJA PRABHUDESSAI, J pronounced this judgment on 25.01.2022 in JAGRAM BALU JADHAO V. THE STATE OF MAHARASHTRA ( First Appeal No.90 Of 2018 ). Facts of this case – The appellants were the proprietors of land under Survey No.19/2 in village Mokh, Tq. Digras, Yavatmal District. The Acquiring Body (Respondent No.4) purchased the land mentioned above, which measures 6H 7R, to submerge the Arunavati Project. On the 23rd of January, 1986, the Notification under Section 4 was issued, and the Award was announced on the 3rd of August, 1988. The compensation was set at Rs.10,500 per hectare by the Land Acquisition Officer (LAO). The appellants filed a Reference under Section 18 of the Act mentioned above after they were dissatisfied with the amount of compensation established by the LAO. Shri. A. R. Chavhan, learned Advocate for the appellants, has relied on the judgment of this Court (Coram: Arun D. Upadhye, J.) dated 20.02.2019 in First Appeal No.426 of 1996 (Dattaram S/o Tatyaji Paul V. The State of Maharashtra and Ors.), wherein this Court (Coram: Arun D. Upadhye, J.) increased the compensation in respect of the land under The increase was based on the Supreme Court’s decision in Civil Appeal Nos.5146-5147 of 2011. The appellants’ learned Advocate contends that the land under Survey No.93/4 is similar and near the relevant area. He further claims that the same Notification was used to purchase the land under Survey No.93/4 for the same reason. This Court decided the compensation in respect of Survey No.93/4 at Rs.70,000/- per acre in a decision dated 17.09.2010 in First Appeal No.87 of 1996, according to Shri. M. A. Kadu learned Advocate for respondent no.4. He claims that the appellants in First Appeal No.426 of 1996 had their compensation increased by concealing that compensation for the same land had been set at Rs.70,000/- per hectare in First Appeal No.87 of 1996, a judgment dated 17.09.2010. As a result, he claims that the judgment dated 20.02.2019 in First Appeal No.426 of 1996 cannot be used to determine the market rate of the relevant land. The Learned Judge ruled that the petition for increased compensation is primarily based on the Hon’ble Supreme Court’s decision in Civil Appeal No.5146-5147 of 2011 and the ruling dated 20.02.2019 in First Appeal No.426 of 1996. The verdict in First Appeal No.426 of 1996, issued the 20th of February, 2009, concerns agricultural property in village Mokh under Survey No.93/4, which was also acquired by the same Notification. Dattaram Tatyaji Paul, the landowner, filed a Section 18 reference, LAC 193/1992, and the Reference Court, by order dated 15.09.1995, increased the compensation to Rs.90,000/- per hectare. It is widely established that an order granting relief mistakenly or by mistake does not confer any legal right on others to get the same ease. A wrong that has been committed in the past cannot be repeated. “Reliance is placed on the decision of the Apex Court in the case of Basawaraj and anr. V. The Special Land Acquisition Officer reported in (2013) 14 SCC 81.” As a result, the petitioner is not entitled to further compensation based on the judgment in First Appeal No.426 of1996, which was acquired by overturning the prior decision in First Appeal No.87 of 1996. The appeal is somewhat admissible in this situation. Compensation for land measuring 6H 7R from Survey No.19/2 of village Mokh has been increased from Rs.50,000/- per hectare to Rs.70,000/- per hectare, including interest from the date of admission of the appeal till ultimate realization. The respondent/Acquiring Body must deposit the increased compensation with interest as described above within four months.

1 J FA 90 2018.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR FIRST APPEAL NO.90 OF 2018 Jagram Balu Jadhaoand enhanced the compensation from Rs.10 500 per hectare to Rs.50 000 per hectare in respect of the land under Survey No.19 2 admeasuring 6H 7R of village Mokh Tq Digras Distt. Yavatmal 3 J FA 90 2018.odt The brief facts leading to this appeal are as under The appellants were the owners of the land under Survey No.19 2 of village Mokh Tq. Digras District Yavatmal. The said land admeasuring 6H 7R was acquired by the Acquiring Body wherein the compensation in respect of an irrigated land in the same vicinity acquired by the same notification was enhanced to Rs.1 00 000 per hectare. The Reference Court held that there was no evidence to prove that the acquired land was irrigated land and hence upon 4 J FA 90 2018.odt deducting 50% towards this dissimilarity awarded compensation at the rate of Rs.50 000 per hectare. Aggrieved by the said judgment the appellants have filed this appeal under Section 54 of the said Act Shri. A. R. Chavhan learned Advocate for the appellants has relied upon judgment dated 20.02.2019 in First Appeal No.426 of 1996 wherein this Court Coram : Arun D. Upadhye J.) had enhanced the compensation in respect of the land under Survey No.93 4 of village Mokh from Rs.90 000 per hectare to Rs.6 50 000 per hectare The enhancement was based on the judgment of the Hon’ble Supreme Court in Civil Appeal Nos.5146 5147 of 2011 Learned Advocate for the appellants submits that the land under Survey No.93 4 is of similar nature and is in close vicinity of the subject land. He further submits that the said land under Survey No.93 4 was acquired for the same purpose by the same Notification. He therefore contends that in view of the said judgment dated 20.02.2019 in First Appeal No.4296 and the decision of the Hon’ble Supreme Court in Civil Appeal 5 J FA 90 2018.odt Nos.5146 5147 of 2011 the appellants are also entitled for compensation at Rs.6 50 000 per hectare Shri. M. A. Kadu learned Advocate for respondent no.4 has brought to my notice that by judgment dated 17.09.2010 in First Appeal No.87 of 1996 this Court had determined the compensation in respect of Survey No.93 4 at Rs.70 000 per hectare. He submits that the appellants in First Appeal No.4296 got the compensation enhanced by suppressing the fact that the compensation in respect of the very same land was determined at Rs.70 000 per hectare vide judgment dated 17.09.2010 passed in First Appeal No.896. He therefore contends that no reliance can be placed on the judgment dated 20.02.2019 in First Appeal No.426 of 1996 in determining the market rate of the subject land Shri Kadu learned counsel for the Acquiring Body further submits that the land which was subject matter of the appeal in Civil Appeal Nos.5146 51411 before the Hon’ble Supreme Court was acquired for establishment of new gaothan of Mokh Village. He submits that the said land under Survey 6 J FA 90 2018.odt No.126 1 B was close to the road and had NA potential. He further submits that the nature of the subject land is not similar to the land which was the subject matter of Civil Appeal No.51411 and hence the valuation of subject land cannot be based on the decision of the Hon’ble Supreme Court in the said Appeal No.51411. He submits that an irrigated land under Survey No.93 4 which was acquired by the same Notification has been valued at Rs.70 000 per hectare. The said valuation is based on the judgment dated 05.08.2009 in First Appeal No.4293 He therefore contends that the appellants are not entitled for enhanced compensation at Rs.6 50 000 I have perused the record and considered the submissions advanced by learned Advocates for the respective The claim for enhanced compensation is based mainly on judgment dated 20.02.2019 in First Appeal No.4296 and the decision of the Hon’ble Supreme Court in Civil Appeal No.5146 51411. The judgment dated 20.02.2009 7 J FA 90 2018.odt in First Appeal No.426 of 1996 relates to an agricultural land under Survey No.93 4 of village Mokh which was also acquired by the same Notification. In a Reference under Section 18 being LAC 193 1992 filed by Dattaram Tatyaji Paul the owner of the said land the Reference Court by judgment dated 15.09.1995 enhanced the compensation to Rs.90 000 per hectare. The said judgment was challenged by the State in First Appeal No.896 and by the owner of the land Dattaram in First Appeal No.426 of 1996. The records indicate that the First Appeal No.426 of 1996 was dismissed for non prosecution on 04.02.2009. The First Appeal No.896 filed by the State was decided by judgment dated 17.09.2010 wherein this Court partly allowed the appeal and reduced the compensation from Rs.90 000 to Rs.70 000 per hectare. It is not in dispute that subsequent to this judgment i.e. on 10.08.2018 this Court restored the First Appeal No.4296 and relying upon the judgment dated 17.10.2018 in First Appeal No.3403 and judgment of the Hon’ble Supreme Court in Civil Appeal No.5146 51411 enhanced the compensation of the said land under Survey No.93 4 to Rs.6 50 000 per hectare. 8 J FA 90 2018.odt It is pertinent to note that the decision in First Appeal No.87 of 1996 wherein this Court had determined the compensation of the acquired land under Survey No.93 4 of village Mokh at the rate of Rs.70 000 per sq. Hectare had attained finality. The appellants in First Appeal No.4296 obtained the order of enhancement in respect of the very same land by suppressing the fact that by judgment dated 17.09.2010 in First Appeal No.87 of 1996 the compensation was already determined at the rate of Rs.70 000 per hectare. It is well settled that if some relief is granted inadvertently or by mistake such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case it cannot be perpetuated. Reliance is placed on the decision of the Apex Court in the case of Basawaraj and anr. Vs. The Special Land Acquisition Officer reported in14 SCC 81. This being the case the petitioner is not entitled to claim enhanced compensation based on the decision in First Appeal No.4296 which was obtained by suppressing the previous decision in First Appeal No.896. 9 J FA 90 2018.odt Learned counsel for the appellants contends that the appellants are entitled for enhanced compensation independently on the basis of the decision of the Hon’ble Supreme Court in Civil Appeal No.5146 51411. The judgment of the Apex Court relates to the land under Survey No.126 1 B of village Mokh which was acquired by separate notification for establishment of new gaothan of Mokh village. The Land Acquisition Officer had awarded compensation in respect of the said land at the rate of Rs.9 000 per hectare. In a reference under Section 18 of the Land Acquisition Act the Reference Court enhanced the compensation at the rate of Rs.6 50 000 per hectare. The said judgment was challenged by the State in First Appeal No.3795 and by the owner in First Appeal No.120 of 1996. The Division Bench of this Court by judgment dated 22.08.2007 allowed the appeal filed by the State and set aside the order of the Reference Court and accordingly held that the claimant owner was entitled for compensation as fixed by the Land Acquisition Officer. In an appeal the Hon’ble Supreme Court held that the compensation in respect of the similar land in another village was determined at Rs.6 50 000 per hectare. The Hon’ble Supreme Court therefore set aside the order of this Court 10 J FA 90 2018.odt and restored the order of the Reference Court and accordingly confirmed the rate of compensation at Rs.6 50 000 per hectare. The appellants have placed on record a copy of the Village Map of village Mokh Taluka Digras. A perusal of the said Map shows that there are several properties in between Survey No. 19 2 and the property under Survey No.126. Furthermore the land under Survey No.126 is abutting a road and it was acquired for establishment of new gaothan. There is no evidence on record to prove that the nature of the said land was similar to that of the acquired land. In the absence of any evidence to prove the similarity as regards locality potentiality or the nature of the said land vis a vis the subject land the decision of the Hon’ble Supreme Court cannot be relied upon to determine the market rate of the acquired land. As noted above by judgment dated 17.09.2010 in First Appeal No.87 of 1996 an irrigated land under Survey No.93 4 of village Mokh acquired by the same notification has been valued at Rs.70 000 per hectare. A perusal of the Village Map shows that the said land is situated in close vicinity of the 11 J FA 90 2018.odt acquired land. Considering these factors the market rate of the acquired land can be determined on the basis of previous judgment in First Appeal No.87 of 1996. Accordingly the appellants are entitled for compensation at the rate of Rs.70 000 per hectare. The record reveals that the appellants had assailed the impugned judgment dated 25.01.2012 in an appeal filed in the year 2016 along with a delay condonation application. By order dated 20.11.2017 the delay was condoned and the appeal was admitted. Considering the fact that the appellants had preferred the appeal after considerable delay in my considered view it would not be just and proper to saddle the State with interest for the delayed period. Hence the appellants shall be entitled for interest from the date of admission of the appeal till final realization. Under the circumstance the appeal is partly allowed The compensation in respect of the land admeasuring 6H 7R from Survey No.19 2 of village Mokh is enhanced from Rs.50 000 per hectare to Rs.70 000 per hectare with interest from the date of admission of appeal till final realization. The respondent Acquiring Body to deposit the enhanced compensation with interest as stated 12 J FA 90 2018.odt above within a period of four months

If an authority acts in an arbitrary matter even in a matter of contract, an aggrieved party can approach the Court by way of Writ: High Court of Jammu and Kashmir

If an authority acts in an arbitrary matter even in a matter of the contract, an aggrieved party can approach the Court by way of Writ under Article 226 of the Constitution and that the Court, depending on the facts of the said case, is empowered to grant the relief. It is trite that when an act of authority is arbitrary or discriminatory and, thus, violative of Article 14 of the Constitution of India, a Writ Petition would be maintainable. This was held in Abdul Qayoom Dar V. Chief Engineer (NZ-V), CPWD, Satwari, Jammu & Ors [WP(C) No. 437/2020] in the High Court of Jammu and Kashmir by a single bench consisting of Justice Ali Mohammad Magrey. Facts are that Petitioner is a Contractor registered under the Contractors Registration Act, disputes arose both parties in relation to various contract matters which were referred to Arbitrators. The respondent debarred the Petitioner from tendering or taking up work in CPWD, MOEF, PWD, etc for a period of three years with effect from the date of issuance of communication. Petitioner has filed a writ against same. The counsel for the Petitioner submitted that the impugned communication of debarring the Petitioners in gross violation of the principles of natural justice, as no fair opportunity of hearing was accorded to the Petitioner. The counsel for the respondent submitted that communication of debarment in relation to the Petitioner was only issued after the Petitioner violated the terms and conditions prescribed in the agreements with respect to the works mentioned in the impugned communication. The Court made reference to judgment of Apex court delivered in the case of ‘Zonal Manager, Central Bank of India v. Devi Ispat Ltd. & Ors., wherein the following observation had been made, “It is clear from the above observations of this Court in the said case, though a writ was not issued on the facts on that case, this Court has held that on a given set of facts if a State acts in an arbitrary manner even in a matter of contract, an aggrieved party can approach the Court by way of a writ under Article 226 of the Constitution and the court depending on facts of the said case is empowered to grant the relief”. The court also made reference to DFO v. Ram Sanehi Singh, wherein the Apex court had observed that, “We are unable to hold that merely because the course of the right which the respondent claims was initially in a contract, for obtaining relief against any arbitrary and unlawful action on the part of a public authority he must resort to a suit and not to a petition by way of writ. In view of the judgment of this Court in K.N. Gueruswamy case there can be no doubt that the petition was maintainable, even if the right to relief arose out of an alleged breach of contract, where the action challenged was of a public authority invested with statutory power”.

IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR WP(C) No. 437 2020 CM No. 879 2020 Reserved on: 11th of May 2021. Pronounced on: 21st of May 2021. ….. Petitioner(s) Abdul Qayoom Dar Through: Mr Manzoor Ahmad Dar Advocate. Through: Mr Tahir Majid Shamsi ASGI. Chief EngineerCPWD Satwari Jammu & Ors. ….. Respondent(s) Hon’ble Mr Justice Ali Mohammad Magrey Judge. In this Petition the Petitioner has prayed for the grant of following relief(s) in his favour: “(a) Quashing of the communication dated 21.1.2019 issued vide No. 23(o4) 5 2018 19 1752 issued by respondent No.1 in terms whereof the petitioner has been debarred from tendering or taking part in CPWD MOEF PWD Govt of Delhi etc. for a period of three years with effect from date of the communication order b) Declaring the communication aforesaid as being illegal inoperative null and void on account of being in violation of the settled legal principles and c) Any other writ order or direction which this court may deem fit in the facts and circumstances attendant to the case be passed in favour of the petitioner so as to meet the ends of justice.” WP(C) No. 437 2020 CM No. 879 2020 Sans details the background facts leading to the filing of the Petition on hand as stated by the Petitioner in his Petition are that the Petitioner claims to be an “A” Class Contractor registered under the Contractors Registration Act besides being second generation Civil Contractor associated with the execution of various construction projects involving the Respondent Central Public Works Department for the last four decades. It is stated that the average turnover of the Petitioner insofar as it pertains to the execution of works of the CPWD ranges from Rs.10 to 15 Crores per annum. It is pleaded that certain disputes arose between the Petitioner and the Respondent Department in relation to various contract matters which were referred to Arbitrators either appointed by the Respondent Department itself or upon seeking intervention of the Court in terms of Section 11 of the Arbitration and Conciliation Act. The Petitioner has further proceeded to state that on account of pendency of multiple arbitration matters between the parties the Respondent Department in order to inflict punishment upon the Petitioner tried to find out ways and means to stop the Petitioner from participating in the tendering process initiated by the Respondent Department for execution of various contracts one such instance being issuance of notice dated 23rd of October 2018 bearing No 23(04) 2018 BSF 1251 asking the Petitioner to show case as to why he should not be debarred from taking up any work in CPWD MOEF PWDetc. all over India. This show cause notice is stated to have been issued in reference to: i) construction of Airbase including provision for Cabin Helicopter Hanger at BSF Campus Humhama Srinagar Kashmir alleging that the flooring work of Helicopter WP(C) No. 437 2020 CM No. 879 2020 Hanger was found sub standard on account of poor workmanship ii) construction of Trainers Training Hostel Farmers Hostel Block at CITH Rangreth Kashmir with the allegation that the subject building was not taken over by the concerned Department on account of non rectification of the defects and iii) submission of false documents at the time of tendering qua mismatch in date of renewal shown by two Executive Engineers of the State department. This show cause notice as stated was replied by the Petitioner vide communication dated 9th of November 2018 whereby all the points issues raised by the Respondent Department were clarified answered by the Petitioner in detail. Notwithstanding the reply submitted by the Petitioner to the show cause notice dated 23rd of October 2018 and without taking into consideration the contents thereof the Respondent No.1 has proceeded to issue the impugned communication dated 21st of January 2019 thereby debarring the Petitioner from tendering or taking up work in CPWD MOEF PWDetcetera all over India for a period of three years with effect from the date of issuance of communication impugned. It is this communication that has been assailed by the Petitioner through the medium of the instant Petition. Mr Manzoor Ahmad Dar the learned counsel appearing for the Petitioner submitted that the impugned communication of debarring the Petitioner has been issued by Respondent No.1 in gross violation of the principles of natural justice inasmuch as no fair opportunity of hearing was accorded to the Petitioner before issuance of the impugned communication of debarring the Petitioner. It is pleaded that since the impugned WP(C) No. 437 2020 CM No. 879 2020 communication has visited the Petitioner with penal consequences qua debarring the Petitioner from taking up works in CPWD MOEF PWD etc. all over India thus it was incumbent upon the Respondent Department to take into consideration the reply submitted by the Petitioner in response to the show case notice however the response of the Petitioner has not been considered while issuing the impugned communication. It is further submitted that the impugned communication has an effect of debarring the Petitioner from executing any civil contract and that if same is allowed to remain in operation the Petitioner would have no chance or opportunity to execute the contracts for three years period from the date of issuance of impugned communication which would have an effect of affecting his eligibility to participate in the tendering process in future thereby violating the fundamental right of the Petitioner as guaranteed under Article 19 of the Objections stand filed on behalf of the Respondents resisting and controverting the averments made by the Petitioner in his Petition. It is submitted that the impugned communication of debarment in relation to the Petitioner was only issued after the Petitioner violated the terms and conditions prescribed in the agreement(s) with respect to the works mentioned in the impugned communication. The Petitioner as stated did not execute the works in question in tune with the terms and conditions prescribed in the agreement(s) resulting in huge loss to Government exchequer as well as damage to the reputation of the Department. It is the decision of debarring the Petitioner from further WP(C) No. 437 2020 CM No. 879 2020 participation in the tendering process was taken after due consideration of the response reply submitted by the Petitioner ground realities and in terms of the provisions of the CPWD manual by the competent authority. Heard learned counsel for the parties perused the pleadings on record and considered the matter. When this matter was taken up on motion hearing i.e. on 24th of February 2020 this Court after hearing the learned counsel for the Petitioner directed the Petitioner shall not be debarred from participating in the tendering process with a further stipulation that in case the Petitioner submitted any bid in response to any tender notice the same shall not be finalized if he is found as the successful bidder till the next date of hearing before the Bench. At the very outset what requires to be stated is that the decision to allot the works or enter into contract with citizens has to be rational non arbitrary and reasonable. The decision making process of the Government or Government agencies in contractual matters has to be reasonable and conforming to the requirements of fundamental rights of the Petitioner guaranteed under Articles 14 and 19 of the Constitution of India. In the case on hand the Respondents have debarred the Petitioner from further participation in the tendering process on the ground that the Petitioner has not followed the terms and conditions stipulated in the tender agreements WP(C) No. 437 2020 CM No. 879 2020 and did not execute the works concerned in the manner required. The pleadings on record bring it to the fore that prior to the issuance of the impugned communication dated 21st of January 2019 debarring the Petitioner from further participation in tendering process the Respondent Department issued show cause notice to the Petitioner on 23rd of October 2018. In this show cause notice certain discrepancies in the allotted works executed by the Petitioner were pointed out which had formed the basis for the proposed action against the Petitioner. This show cause notice was duly replied by the Petitioner with the support of documents vide communication dated 9th of November 2018. The reply so submitted by the Petitioner appears to be quite elaborate and all the points raised by the Respondent Department in the show cause notice stand replied with documentary evidence. The Respondent Department ought to have given a thoughtful consideration to the contentions assertions made by the Petitioner in the reply to the show cause notice however this has not been done as is quite clearly evident from a plain reading of the impugned communication of debarring. This course of action adopted by the Respondent Department has visited the Petitioner with major punishment as the Petitioner has been debarred from further participation in tendering process and for such major punishment as per procedure fair and due opportunity of hearing had to be offered to the Petitioner by associating him in the entire process. Law is no more res integra to the effect that there must be judicial restraint in interfering with the administrative action particularly in the matters of tender or contract and that ordinarily the soundness of the WP(C) No. 437 2020 CM No. 879 2020 decision taken by the tender issuing authority ought not to be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned firstly if the decision made is so arbitrary and irrational that the Court can say that the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached or second if the process adopted or decision made by the authority is malafide or intended to favour someone or third if the public interest is affected. In the instant case when the Petitioner has duly replied to all the points raised by the Respondents in the reply so submitted by him in relation to the show cause notice and has furnished all the requisite documents in support of his claim in such eventuality the decision of the Respondent Department to debar the Petitioner from further participation in the tendering process amounts to such action where they have acted in a manner in which no responsible authority acting reasonably and in accordance with the relevant law would have acted. The contention of the Respondents that in contract matters a Writ Petition is not maintainable in the facts and circumstances of the present case is not only misconceived but also misdirected as well. This is so because it is settled legal position that if an authority acts in an arbitrary matter even in a matter of contract an aggrieved party can approach the Court by way of Writ under Article 226 of the Constitution and that the Court depending on the facts of the said case is empowered to grant the relief. Although ordinarily a superior Court in exercise of its Writ jurisdiction would not entertain a Petition involving contractual obligations WP(C) No. 437 2020 CM No. 879 2020 between the parties it is trite that when an action of an authority is arbitrary or discriminatory and thus violative of Article 14 of the Constitution of India a Writ Petition would be maintainable. There cannot be any doubt whatsoever that a ‘Writ of Mandamus’ can be issued only when there exists a legal right in the Writ Petition and a corresponding legal duty on the part of the authority but then if any action on the part of the authority is wholly unfair or arbitrary the superior Courts are not powerless. This view is fortified by the law laid down by Hon’ble the Supreme Court in case titled ‘Karnataka State Forest Industries Corporation v. Indian Rocks’ reported as ‘AIR 2009 SC 684’. Again the Apex Court of the country while dealing with a similar issue in case titled ‘Zonal Manager Central Bank of India v. Devi Ispat Ltd. & Ors.’ reported as ‘(2010) 11 Supreme Court Cases 186’ has at Paragraph No.25 provided as under: It is clear from the above observations of this Court in the said case though a writ was not issued on the facts on that case this Court has held that on a given set of facts if a State acts in an arbitrary manner even in a matter of contract an aggrieved party can approach the Court by way of writ under Article 226 of the Constitution and the court depending on facts of the said case is empowered to grant the relief. This judgment in K.N. Guruswamy v. State of Mysore was followed subsequently by this Court in DFO v. Ram Sanehi Singh3 SCC 864] wherein this Court held: “4. By that order he has deprived the respondent of a valuable right. We are unable to hold that merely WP(C) No. 437 2020 CM No. 879 2020 because the course of the right which the respondent claims was initially in a contract for obtaining relief against any arbitrary and unlawful action on the part of a public authority he must resort to a suit and not to a petition by way of writ. In view of the judgment of this Court in K.N. Gueruswamy case there can be no doubt that the petition was maintainable even if the right to relief arose out of an alleged breach of contract where the action challenged was of a public authority invested with statutory power.” For the foregoing reasons coupled with the enunciation of law discussed hereinabove impugned communication whereby Petitioner has been debarred from further participation in the tendering process by the Respondent Department cannot withstand the test of judicial scrutiny. That being so this Writ Petition is allowed and the impugned communication bearing No. 23(04) 5 2018 19 1752 dated 21st of January 2019 issued by Respondent No.1 is hereby quashed. Writ Petition disposed of on the above terms. Pending applications if any shall also stand disposed of accordingly. Judge May 21st 2021 Whether the Judgment is reportable Yes No. Yes No. Whether the Judgment is speaking

There had been collusion in suppressing the death information of deceased: Calcutta High Court

It seemed that the petitioner could not make his supplication out of this petition. Thus, not finding any merit in the revisional application, whereof such application was proclaimed dismissed. The Hon’ble High Court at Calcutta before the Hon’ble Justice Subhasis Dasgupta held such an opinion in the matter of  Sk. Asfar Ali & Ors. Vs. Sk. Asgar Ali [CO. No. 1322 of 2021]. According to the case facts, the learned Civil Judge (Senior Division), Additional Court, Hooghly had passed the impugned order No. 37 dated 26th March 2021 in Misc. Case No. 20 of 2019 arising out of Title Suit No. 370 of 2018, ordering the petitioners/opposite parties to issue information regarding the names and addresses of legal heirs of deceased defendant No.7/opposite party No.7. Afterward, the rejected prayer of the petitioners dated 10.12.2020, under 151 of the Code of Civil Procedure, for recording the abatement, as against defendant No.7/opposite party No.7, who left this world on 14.05.2018, is subject of challenge in this revisional application.  Eventually, Original Title Suit No. 88 of 2014, was transferred and renumbered as Title Suit No. 370 of 2018, was dismissed for default by order dated 04.04.2019. The restoration of the suit sought opposite party/plaintiff registered Misc. Case No. 20 of 2019 under Order IX Rule 9 of the Code of Civil Procedure.  The interconnection with Misc. Case, the opposite party Nos. 1 to 6 filed a petition dated 10.12.2020, sought the recorded order against defendant No.7/opposite party No.7, namely Sri Mandan Baul Das, who died on 14.05.2018, on the ground that legal heirs of the said defendant (No.7/opposite party No.7), could not be substituted by resorting to the provisions available for substitution within the time provided under the law. Learned advocate, Mr. Bhudeb Chatterjee, representing the petitioners/defendants/opposite parties submitted that the Court had automatically rejected their prayer for recording the abatement order, against the defendant No.7/opposite party No.7, and thereafter illegally directing petitioners to issue information regarding the names and addresses of legal heirs of deceased defendant No.7/oppsoite party No.7.  Mr. Chatterjee urged that under the instructions of an order under Order XXII Rule 10A of the Code of Civil Procedure petitioners could not be forced to furnish the names and addresses of legal heirs, left by deceased defendant No.7/opposite party No.7, and it was highly illegal having no consent of the law. Incidentally, Mr. Chatterjee referred the Vakalatnama, that there was a change of brief, wherein the previously learned advocate appeared in the Court below for deceased defendant No.7/opposite party No.7, furnished a recourse in Vakalatnama. Therefore, the learned advocate, appointed for petitioners/opposite party Nos. 1 to 6, could not be compelled to furnish the required information, about the legal heirs. The learned advocate representing the opposite party/plaintiff, Mr. Sounak Bhattacharya, submitted that there had been a collusion in suppressing the death information of expired defendant No.7, which could be easily understood upon visualising the cremation/burial certificate, issued by petitioners/opposite party Nos. 1 to 6 in the Court below. Further, Mr. Bhattacharya contended that the original suit was for declaration and partition. Mr. Bhattacharya also stated that the required death information neither could be furnished by the learned advocate representing the deceased defendant No.7 in the court below nor by the opposite party Nos. 1 to 6/defendants, or their learned advocates for taking effective steps as regards the substitution of legal heirs, left by deceased defendant No.7/opposite party No.7. Advancing more to the case, Mr. Bhattachaya stated “ information of deceased defendant No.7 was deliberately suppressed thereby preventing the plaintiff/opposite parties from taking appropriate steps simply to avoid future complication”. The Hon’ble High Court at Calcutta stated that the inclusion of Order XXII Rule 10A of the Code of Civil Procedure, it is the duty of a learned advocate to communicate to the Court. The relevant provisions mentioned hereinabove may be mentioned hereinbelow- “10A. Duty of pleader to communicate to Court death of a party. – Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.” In order XXII Rule 10A there is neither any uncertainty nor any complexity in its “words”. The information of the death on account of such disputes should have been furnished to the Court, the opposite party/plaintiff was required to act on account of the death of deceased defendant No.7. After inspection of such impugned order, it seemed that deceased defendant No.7 filed his written statement on 19th September 2014, and stated the purchase of some portion of the suit property along with his three brothers. Mr. Madan Baul Das/defendant No.7 departed this world on 14.08.2018. The said deceased person’s death information neither could be furnished by the learned advocate representing the deceased/defendant No.7 nor by any one of the defendants having gathered such information at any followed stage.  Therefore, in all the discussions hereinabove, it appears that the opposite party/plaintiff was prevented due to ample causes did not take any proper causes for substitution. After the consideration of the entire information and facts available in the case record, the Hon’ble Court rejected the prayer for recording the abatement order, as against deceased defendant No.7/opposite party No.7. Therefore, the petitioners/opposite party Nos.1 to 6 was allowed to furnish information regarding names and addresses of legal successors of deceased defendant No.7/opposite party No.7.  The Hon’ble High Court at Calcutta before the Hon’ble Justice Subhasis Dasgupta considered all these facts and held “The technicalities thus sought to be capitalized by Mr. Chatterjee, learned advocate appearing for the petitioners, in the given context of this case, should not be given precedence, giving a contrary look to the provisions contained in Order XXII Rule 10A of the Code of Civil Procedure. For a little bit change in the circumstances, the imperative obligation to furnish the death information of deceased defendant No.7 should not be interpreted in a manner, other than the purpose actually contemplated under Order XXII Rule 10A of the Code of Civil Procedure.” The Hon’ble Court was also of the opinion that “The impugned order does not call for any interference. The revisional application fails being without any merits, and accordingly stands dismissed”. Click here to read the judgment Judgment reviewed by Bipasha Kundu The Hon’ble High Court at Calcutta before the Hon’ble Justice Subhasis Dasgupta considered all these facts and held “The technicalities thus sought to be capitalized by Mr. Chatterjee, learned advocate appearing for the petitioners, in the given context of this case, should not be given precedence, giving a contrary look to the provisions contained in Order XXII Rule 10A of the Code of Civil Procedure. For a little bit change in the circumstances, the imperative obligation to furnish the death information of deceased defendant No.7 should not be interpreted in a manner, other than the purpose actually contemplated under Order XXII Rule 10A of the Code of Civil Procedure.” The Hon’ble Court was also of the opinion that “The impugned order does not call for any interference. The revisional application fails being without any merits, and accordingly stands dismissed”.

In the High Court at Calcutta Civil Revisional Jurisdication The Hon’ble Justice Subhasis Dasgupta CO. No. 13221 Sk. Asfar Ali & Ors Sk. Asgar Ali For the Petitioners Mr. Bhudeb Chatterjee Adv Mr. Sanjib Kumar Ghosh Adv For the Opposite Party Mr. Sounak Bhattacharya. Adv Subhasis Dasgupta J: The impugned order No. 37 dated 26th March 2021 passed by learned Civil Judge Additional Court Hooghly in Misc Case No. 219 arising out of Title Suit No. 3718 directing the petitioners opposite parties to furnish information regarding the names and addresses of legal heirs of deceased defendant No.7 opposite party No.7 after rejecting the prayer of the petitioners dated 10.12.2020 under 151 of the Code of Civil Procedure for recording the abatement as against defendant No.7 opposite party No.7 who left this world on 14.05.2018 is subject of challenge in this revisional application Original Title Suit No. 88 of 2014 subsequently transferred and renumbered as Title Suit No. 3718 had already been dismissed for default by order dated 04.04.2019. Seeking restoration of the suit opposite party plaintiff registered Misc. Case No. 219 under Order IX Rule 9 of the Code of Civil Procedure In connection with Misc. Case opposite party Nos. 1 to 6 field a petition dated 10.12.2020 seeking recording of abatement order as against the defendant No.7 opposite party No.7 namely Sri Mandan Baul Das who died on 14.05.2018 on the ground that legal heirs of defendant No.7 opposite party No.7 could not be substituted by resorting to the provisions available for substitution within the time provided under the Mr. Bhudeb Chatterjee learned advocate appearing for the petitioners defendants opposite parties submitted that the Court below had mechanically rejected their prayer for recording the abatement order as against the defendant No.7 opposite party No.7 and proceeded thereafter illegally directing petitioners to furnish information regarding the names and addresses of legal heirs of deceased defendant No.7 oppsoite party No.7 It was contended by Mr. Chatterjee that under the behest of an order under Order XXII Rule 10A of the Code of Civil Procedure petitioners could not be compelled to furnish the names and addresses of legal heirs left by deceased defendant No.7 opposite party No.7 and it was highly illegal having no sanction of law. Incidentally Mr. Chatterjee referred the Vakalatnama furnished by the learned advocate appearing in the Court below for deceased defendant No.7 opposite party No.7 and taking recourse to the Vakalatnama further contended that by reason of change of brief the subsequent learned advocate appointed petitioners opposite party Nos. 1 to 6 could not be compelled to furnish the required information as to who are the legal heirs of deceased defendant No.7 opposite party No.7 simply for adhering to the mandate available under Section XXII Rule 10A of the Code of Civil Procedure Mr. Sounak Bhattacharya learned advocate representing the opposite party plaintiff in reply submitted that there had been a collusion in suppressing the death information of deceased defendant No.7 which could be easily understood upon visualising the cremation burial certificate furnished by petitioners opposite party Nos. 1 to 6 in the Court Mr. Bhattacharya contended that petitioners opposite party Nos. 1 to 6 had there definite information as regards the death occurred to deceased defendant No.7 oppsoite party No.7. It was thus further contended by Mr. Bhattacharya that since the original suit was for declaration and partition the question of abatement would not necessarily arise and more so the required death information neither could be furnished by the learned advocate representing the deceased defendant No.7 in the court below nor by the opposite party Nos. 1 to 6 defendants or their learned advocates for taking effective steps as regards the substitution of legal heirs left by deceased defendant No.7 opposite party Upon advancing such submission Mr. Bhattachaya tried to impress upon the Court that death information of deceased defendant No.7 was deliberately suppressed thereby preventing the plaintiff opposite parties from taking appropriate steps simply to avoid future complication Admittedly no death information as against the deceased defendant No.7 opposite party No.7 was the Court below Consequently Misc. Case under Order IX Rule 9 of the Code of Civil Procedure for restoration of the suit was filed impleading defendant No.7 opposite party No.7 who had already left this world With the insertion of Order XXII Rule 10A of the Code of Civil Procedure a duty has been cast upon learned advocate to communicate to Court the death information of a party in a suit. The relevant provisions mentioned hereinabove may be mentioned hereinbelow “10A. Duty of pleader to communicate to Court death of a party. Whenever a pleader appearing for a party to the suit comes to know of the death of that party he shall inform the Court about it and the Court shall thereupon give notice of such death to the other party and for this purpose the contract between the pleader and the deceased party shall be deemed to subsist.” There is neither any ambiguity nor any obscurity contained in the ‘words’ used in Order XXII Rule 10A thereby laying down an express imperative upon the learned advocate appearing for a party to suit to furnish the death information immediately upon knowing the same so that the Court upon such information being furnished give notice of such death information to other party simply to facilitate the requirement of It is quite impossible for the opposite party plaintiff to gather knowledge of such death information of deceased defendant No.7 opposite party No.7 without any required death information being filed by the learned pleader appearing for the deceased defendant No.7 oppsoite party No.7 who also entered his appearance for defendant No. 1 to 6 petitioners involved in this case. In the event of such death information being furnished to the Court the opposite party plaintiff was required to act on account of the death of deceased defendant No.7 who simply for ignorance allowed limitation to run against him for taking appropriate steps against the legal heirs of deceased defendant No.7 Mere change of brief with subsequent appointment of learned advocate in the given context of this case as contended to have taken place would not be sufficient enough to take an exception to the provisions contained under Order XXII Rule 10A of the Code of Civil Upon perusal of the impugned order it appears that deceased defendant No.7 filed his written statement on 19th September 2014 stating purchase of some portion of the suit property along with his three brothers. Without any controversy Mr. Madan Baul Das defendant No.7 left this world whose death information neither could be furnished by the learned advocate representing the deceased defendant No.7 nor by anyone of the defendants having gathered such information at any In the original suit partition has been sought for in respect of subject property shown in the schedule upon declaring a solenama decree dated 14.12.1982 passed by the learned Subordinate Judge First Court Chinsurah Hooghly in Title Suit No. 981 and the solenama decree dated 16.12.1981 passed by Civil Judge 1st Court Chinsurah Hooghly in Title Suit No. 8 of 1981 to be void inoperative concocted and fraudulent For the reasons discussed hereinabove the opposite party plaintiff was prevented by sufficient causes from taking any appropriate steps for substitution as against deceased defendant No.7 oppsoite party No.7 and the learned court below upon consideration of the entire materials available in the case record rightly rejected the prayer for recording the abatement order as against deceased defendant No.7 opposite party No.7 and thereby allowing the petition of opposite party plaintiff with a direction upon the petitioners opposite party Nos.1 to 6 to furnish information regarding names and addresses of legal heirs of deceased defendant No.7 opposite party No.7 The technicalities thus sought to be capitalized by Mr. Chatterjee learned advocate appearing for the petitioners in the given context of this case should not be given precedence giving a contrary look to the provisions contained in Order XXII Rule 10A of the Code of Civil Procedure. For a little bit change in the circumstances the imperative obligation to furnish the death information of deceased defendant No.7 should not be interpreted in a manner other than the purpose actually contemplated under Order XXII Rule 10A of the Code of Civil Procedure The impugned order does not call for any interference The revisional application fails being without any merits and accordingly stands dismissed Urgent certified copy of this order and judgment if applied for be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities (Subhasis Dasgupta J

Law does not necessarily require the person to be burdened with such harsh consequences of an error, without regard to facts and circumstances of the case: Delhi High Court

Some degree of administrative flexibility can be exercised to enable him to pursue an educational opportunity in a situation where neither the institution nor any other candidate would be prejudiced thereby. This was said in the case of Adil Sajeer Ansar v University Of Delhi & Anr [W.P.(C) 5392/2020] by  Mr. Justice Prateek Jalan in High Court of Delhi. The facts of the case are that the petitioner applied for admission to the MBA Programme (2020-21) in the University of Delhi. He appeared for (CAT) exam, and was provisionally selected in the Other Backward Caste Category. He made a typographical error while submitting the required documents to the University and added an extra ‘a’ and sent the documents to the wrong mail address. Later, he realized the error he had committed and therefore, wrote to the University but his request was not acceded to because the deadline has passed. He thereafter made various further representations to the Dean of the Department, the MBA Admissions Office and Dean of Students Welfare explaining his predicament which did not elicit a response. Hence, the present petition before the High Court. The petitioner contended that he had erroneously sent the documents to an incorrect e-mail address within the time stipulated by the University and had corrected his error on the same day at 9:15 PM. Secondly, it was contended that the University’s failure to consider the petitioner’s case in these circumstances was unreasonable and arbitrary and a sympathetic view ought to have been taken. The University, respondents relied upon the contents of the counter affidavit and the additional affidavit to contend that the University was duty bound to conform to the conditions mentioned in the communication sent to the petitioner with regard to submission of documents. Relying upon the judgment of State of Uttar Pradesh & Ors. vs. Chaudhari Ran Beer Singh & Anr [ (2008) 5 SCC 550] they said that  University cannot be directed by a writ of mandamus to disobey the law. He lastly urged that the writ court ought not to substitute its own judgment for that of the administrative authority. Thirdly, they relied upon Sections 17 and 32 of the Delhi University Act, 1922 to submit that the faculty in question is an “authority” of the University, entitled to make regulations in the circumstances mentioned in Section 32. Assailing the decision of the Admissions Committee regarding the petitioners case, the Court noted that “the consideration of the petitioner’s case by the Committee was also perfunctory, at best, and that the minutes on record do not reveal any application of mind to particular circumstances, but a blanket decision to disallow all late submissions, and thus stick to the view taken by the admissions team”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 8th April 2021 Pronounced on: 23rd April 2021 W.P.(C) 5392 2020 & CM APPLs. 19431 2020 34199 2020 ADIL SAJEER ANSARI ..... Petitioner Through: Mr. Sahil Bhalaik & Mr. Tushar Giri Advocates. UNIVERSITY OF DELHI & ANR. Respondents Through: Mr. Mohinder J.S. Rupal and Ms. V. Bhawani Advocates. HON’BLE MR. JUSTICE PRATEEK JALAN JUDGMENT The present writ petition concerns the petitioner’s application for admission to the MBA Programme in the Delhi School of Economics University of Delhi in the academic year 2020 21. The petitioner appeared for the Common Admission Test CAT) and applied for admission to the MBAprogramme in the Department of Commerce Faculty of Commerce and Business Delhi School of Economics University of Delhi for the academic year W.P.(C) 5392 2020 2020 21. He was provisionally selected in the OBC Category in the 8th Admission List. This was communicated to the petitioner by an e mail dated 02.08.2020 which further required submission of documents by e mail to the e mail address “mbadmission@commerce.du.ac.in”. The said communication also stipulated a deadline with regard to the submission of the documents which was as follows: “ ….. You are required to send your documents during the period from: 2nd August 2020 to 4th August 2020 between 10:00 AM to 4:00 PM(Documents sent after the stipulated time shall not be considered without any further communication).” It is the petitioner’s case that he is a resident of Uttar Pradesh and the Government of Uttar Pradesh had issued directives for a curfew in the State over the weekends. As no movement was permitted he faced some difficulty in arranging all the necessary documents and scanning them. However on 04.08.2020 at 10:58 AM the petitioner successfully submitted all his documents on “mbaadmission@commerce.du.ac.in” not realizing that it was in fact an incorrect e mail address. Later in the day on 04.08.2020 it came to the knowledge of the petitioner from various other similarly placed candidates that after successful submission of the documents a payment link was sent to the eligible candidates. The petitioner raised a query to the University on the correct e mail address mbadmission@commerce.du.ac.in] W.P.(C) 5392 2020 vide e mail dated 04.08.2020 at 7:59 PM stating that he has mailed the necessary documents but had not received the payment link. He received the following response from the University on 04.08.2020 at 8:43 PM: “We have recieved only a query from your side which was duly replied but have NOT recieved the documents required for admission therefore you have not got any Also you are requested to send us proof that you have send the required documents on this email ID for us to take up the matter. Warm Regards MBA Admissions Team Department of Commerce Faculty of Commerce and Business University of Delhi Quoted text hidden]” The petitioner thus discovered that the documents submitted by him were inadvertently sent to an incorrect e mail address which the one provided by the University communication of 02.08.2020. At 9:15 PM on the same day he sent an e mail to the University at the correct e mail address and attached all his scanned documents. The petitioner again wrote to the University on 04.08.2020 at 9:19 PM apologizing for his mistake and attaching with the e mail a screenshot of the earlier email as required by the University. W.P.(C) 5392 2020 Further to the above on 05.08.2020 at 12:21 PM the petitioner explained his case to the University and requested for a payment link. The said communication is reproduced as follows: “Respected SIR MAM We have a weekend lockdown here in U.P..I received the mail on 2nd of Aug which was Sunday so I couldnt get the documents scanned that day. Next day being Rakshabandan most of the shops were closed so i had to travel to a distant cyber cafe to get the documents scanned.Amongst all this hassle i ended up sending the documents to a wrong mail address(just a minor difference in spelling). I have attached the proof in the previous mail. I request you to kindly accept my apology & forward me the payment link as the past few days have been quite hectic & me and my parents are losing their sleep over this issue. Yours sincerely Adil Sajeer Ansari Quoted text hidden]” The University replied on 05.08.2020 at 2:19 PM stating that the petitioner’s case could not be considered because of the deadline of submission of documents but mentioned that the University will forward the case of the petitioner to a committee and will convey its decision to him at the earliest possible. 10. The petitioner again pleaded his case through various further representations and also informed the University that he had mailed the documents at an incorrect e mail address by an unintended error. However on 07.08.2020 at 9:45 AM the University conveyed the W.P.(C) 5392 2020 decision of the committee to the petitioner wherein the request of the petitioner was not acceded to. 11. The petitioner thereafter made various further representations to the Dean of the Department the MBA Admissions Office and Dean of Students Welfare which did not elicit a response. 12. This led to the present writ petition in which the petitioner has sought the following reliefs: “(a) issue a writ of mandamus or any other appropriate writ order or direction directing the Respondents to allow the Petitioner to complete his admission process for the MBA program and grant him consequent admission at the Delhi School of Economics University of Delhi pass such further or other orders which this Hon ble Court may deem fit and proper in the facts and circumstances of the case in the interest of 13. When the matter was first listed before this Court on 18.08.2020 the Court opined that the petitioner’s mistake is a bona fide one and a prima facie case is made out by the petitioner. The Court granted interim relief to the petitioner as follows: 7. In the meantime the respondents will keep one seat vacant in the stated course from OBC category till the next date of hearing in case such a seat is presently W.P.(C) 5392 2020 Affidavits filed by the University 14. The University has filed a counter affidavit to which the Minutes of the Sub Committee dated 07.08.2020 has been annexedWhether the other candidates mentioned in the aforesaid additional affidavit rectified the errors by sending their documents to the correct e mail W.P.(C) 5392 2020 address of the MBA admissions office and if so at what stage that rectification was made. the closing b) What steps were taken to process the applications time of 4:00 P.M. on 04.08.2020 and 9:19 P.M. on the same date when the petitioner sent the documents to the correct e mail address ” 17. The University thereafter filed a further additional affidavit dated 12.03.2021 stating that in total there were five candidates who were successful in the 1st to 7th admission list but sent the documents after the due date or on an incorrect e mail address. Of these only one candidate sent documents on an incorrect e mail address while the other candidates did not send the documents during the stipulated period at all. It does not appear from the said affidavit that any of the candidates in question rectified their error at any stage. The University has instead relied upon the minutes of the Commerce and Business Courses Admission Committee dated 10.06.2020 by which it was decided not to consider the candidates who submitted documents after the stipulated time period. 18. With respect to the second query enumerated in the order dated 23.02.2021 the University has submitted that there was no similar case in the 8th admission list. It has further stated as follows: “Reply to point5392 2020 We have received only a query from your side which was duly replied but have NOT received the documents required for admission therefore you have not got any mail. Also you are requested to send us proof that you have sent the required documents on this email ID for us to take up the matter." Subsequently his case was referred to the sub committee and the decision was communicated to Mr. Adil Ansari accordingly.” Submissions of counsel 19. The principal submission of Mr. Sahil Bhaliak learned counsel for the petitioner was that the petitioner had erroneously sent the documents to an incorrect e mail address within the time stipulated by the University and had corrected his error on the same day at 9:15 PM. He submitted that the University’s failure to consider the petitioner’s case in these circumstances was unreasonable and arbitrary and a sympathetic view ought to have been taken. 20. Mr. Mohinder J.S. Rupal learned counsel for the University relied upon the contents of the counter affidavit and the additional affidavit to submit that the University was duty bound to conform to the conditions mentioned in the communication sent to the petitioner with regard to submission of documents. Mr. Rupal cited the Division Bench judgment of this Court in Pallavi Sharma vs. College of Vocational Studies & Anr.221 DLT 738 and the judgment of a Coordinate Bench in Divya Bansal vs. University of Delhi through its Registrar9111 2020 decided on 23.11.2020] to submit that the instructions of the University cannot be bypassed and that W.P.(C) 5392 2020 considerations of sympathy the candidate would be misplaced. Relying upon the judgment of State of Uttar Pradesh & Ors. vs. Chaudhari Ran Beer Singh & Anr. 5 SCC 550 Mr. Rupal submitted that the University cannot be directed by a writ of mandamus to disobey the law. He lastly urged that the writ court ought not to substitute its own judgment for that of the administrative authority. He reiterated that the course to which the petitioner sought admission is now well under way and grant of admission at this stage cannot be permitted. 21. Mr. Rupal further relied upon Sections 17 and 32 of the Delhi University Act 1922 to submit that the faculty in question is an “authority” of the University entitled to make regulations in the circumstances mentioned in Section 32. A. Has the petitioner made out a case for relief 22. The petitioner’s case in summary is that despite restrictions on movement in the State of Uttar Pradesh where he was residing during the relevant period and intervening festivals he was able to access a cyber cafe on 04.08.2020 and e mailed the documents to the University at approximately 11:00 AM well within the stipulated time. Undisputedly the petitioner did make a typographical error while submitting his documents he added an extra ‘a’ and sent the documents to mbaadmission@commerce.du.ac.in instead of the correct e mail address mbadmission@commerce.du.ac.in]. The petitioner made inquiries and was informed on the same day at 8:43 PM that the documents had not been received by the University. He W.P.(C) 5392 2020 corrected his mistake by an e mail of the same date at 9:15 PM. On 05.08.2020 the MBA Admissions Team informed the petitioner that the documents were sent to the correct e mail address after the stipulated time of 4:00 PM on 04.08.2020 and could not be considered. However it was stated that the petitioner’s case would be forwarded to a Committee. The petitioner’s representations were however declined by the Committee. 23. This approach of the University is in my view unduly harsh. The petitioner provided documents to support his contention that he had in fact sent the documents within time albeit to the wrong e mail address. He corrected his mistake as soon as the University informed him that his documents have not been received and within a few hours of the deadline having passed. Pursuant to the specific direction of the Court to state on affidavit as to the steps taken to process the applications between the closing time of 4:00 PM on 04.08.2020 and 9:19 PM on the same datethe University has only placed on record the aforementioned affidavit dated 12.03.2021 which does not disclose that the applications were in fact processed in any manner during this period. As such neither had any administrative process taken place during the interregnum nor would any other candidates have been prejudiced in the event the University had taken a more accommodative approach. 24. Further the additional affidavits filed by the University also make it clear that of the candidates who were higher in merit than the petitioner in the concerned category five were not given admission W.P.(C) 5392 2020 due to non submission of documents. Only one of the five submitted the documents and that too at an incorrect e mail address. The response to the specific query as to whether any of the other candidates had rectified the error by sending the documents to the correct e mail address makes it clear that there was no other candidate in a situation similar to that of the petitioner. 25. The judgments cited by Mr. Rupal do not come in the way of the aforementioned conclusion. The nature of the instruction in the present case and the violation thereof by the petitioner must first be borne in mind. From the record it appears that the instruction the manner of submissions of documents was communicated at the stage when the admission list was published. The issue is not one of breach of a statute or subordinate legislation. Although Mr. Rupal cited the provisions of the Delhi University Act relating to the definition of “authorities” and the power to make “regulations” every instruction or direction issued by an “authority” must be examined on its own terms. There is nothing on record to the conclusion the deadline prescribed communication dated 02.08.2020 was in the nature of a “regulation” by which the University was compelled to reject the petitioner’s representations. 26. The observation of the Supreme Court in A.P. Christians Medical Educational Society vs. Government of Andhra Pradesh & Anr.2 SCC 667 relied upon by Mr. Rupal was in the context of an institution which had admitted students to a medical college in breach of conditions imposed by the affiliating University. Rejecting W.P.(C) 5392 2020 an argument advanced on behalf of the students so admitted that they should be permitted to appear for the University examinations notwithstanding the lack of permission and affiliation the Court observed as follows: “10. xxxx ….. We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws. …..” The case of a medical college which had admitted students without fulfilling the affiliation conditions communicated by the University is not at all similar to the present case where a student seeks admission after having fulfilled all the necessary conditions except for the submission of documents to an erroneous e mail address which was also subsequently rectified within a very short span of time. No question of eligibility arises in the present case. 27. Reliance upon the Supreme Court decision in Chaudhari Ran Beer Singhis similarly inapposite. In that case the Court was concerned with a decision regarding creation of a District State and took the view that such a policy decision must be left to the government. The present case is one where there was evidently some discretion to be exercised by the University which is what occasioned the reference to a committee. The decision was not one of policy simpliciter but of application of policy to a particular factual situation. 28. Turning now to the two decisions of this Court cited by Mr. Rupal in Pallavi Sharmathe writ petitioner sought admission W.P.(C) 5392 2020 for a course other than the courses for which she had applied. The learned Single Judge declined the relief holding that permitting a person to be admitted in a course for which she had not applied at all would be disruptive of the admission process. The Division Bench affirmed this finding inter alia on the ground that the Information Bulletin issued by the University required candidates to indicate the courses in which they sought admission. The Division Bench held that the instructions contained in the Bulletin are binding and a writ of mandamus cannot be issued contrary thereto. Similarly in Divya Bansalthe brochure issued by the University provided for the method of counselling including upgradation from a lower preference college to a higher preference college during the counselling process. The petitioner therein admittedly specifically opted out of the counselling process and contended that this was a bona fide mistake. The Court held that permitting her to seek upgradation in these circumstances would create chaos even if she had opted out by an inadvertent mistake. 29. The present case does not in my view fall within the class of cases dealt with in Pallavi Sharma and Divya Bansal. In both those cases the candidates had chosen not to be considered for admission which was later sought in the writ petitions. In Pallavi Sharma the petitioner had not applied for the course in question and in Divya Bansal the petitioner opted out of the possibility of upgradation. In both the judgments the Court has emphasized that permitting the petitioner to revisit that choice would result in throwing the admission process into chaos. The present petitioner in contrast made his W.P.(C) 5392 2020 application was declared successful and corrected his mistake before the admissions process had progressed at all. If the University Committee constituted for the purpose had exercised its discretion in favour of the petitioner at that stage no other candidate would have been prejudiced and it certainly would not have led to chaos or disruption of the sort envisaged in the judgments relied upon. In fact it is evident from the orders of this Court dated 18.08.2020 and 25.08.2020 that a seat in the relevant category was available even at the stage when the petitioner approached this Court. 30. The petitioner’s conduct other than the admitted typographical error in submission of the documents has been diligent and responsive. lack of necessary facilities owing to COVID 19 restrictions and festivals in the concerned district in Uttar Pradesh he persevered to submit his documents within time. Unfortunately he made an error in typing the e mail address. He kept track of the status with other applicants and contacted the University immediately upon discovery that others had received the payment link but he had not. He rectified the defect immediately and represented repeatedly to the University to consider his case. He also requested that he be considered in the next list if necessary. The University declined all these representations. 31. The law does not in my view necessarily require the person in this situation to be burdened with such harsh consequences of his error without regard to the particular facts and circumstances of the case. Some degree of administrative flexibility can be exercised to enable him to pursue an educational opportunity in a situation where W.P.(C) 5392 2020 thereby. neither the institution nor any other candidate would be prejudiced 32. Even when tenders are floated by public authorities the Courts have drawn a distinction between essential eligibility conditions which must be strictly enforced) and ancillary or subsidiary condition in which some flexibility is permitted). To this effect is the decision of the Supreme Court in Poddar Steel Corporation vs. Ganesh Engineering Works and Ors.3 SCC 273which has been followed in several cases including Om Prakash Sharma vs. Ramesh Chand Prashar & Ors.12 SCC 632 and by a Division Bench of this Court in Quippo Oil and Gas Infrastructure Limited vs. Oil & Natural Gas Corporation Limited & Anr.230 DLT 384 DB). These decisions hold that minor or ancillary deviations from tender conditions by bidders can be condoned. If commercial organizations can be permitted such latitude surely a young student at the cusp of life is entitled to the same benefit. 33. The consideration of the petitioner’s case by the Committee was also perfunctory at best. The minutes on record do not reveal any application of mind to particular circumstances but a blanket decision to disallow all late submissions and thus stick to the view taken by the Admissions Team. There is significantly no consideration of the fact that the petitioner had rectified his mistake within a few hours and prior to any substantive action having been taken by the University. 34. For the aforesaid reasons I am of the view that the petitioner has made out a case for interference under Article 226 of the W.P.(C) 5392 2020 B. Nature of relief to be granted 35. The next question is as to what relief can be granted to the petitioner. The petitioner approached this Court immediately after the rejection of his representations. The first order of this Court which was passed on 18.08.2020 recorded that the petitioner had made out a prima facie case and directed the University to keep one seat vacant in the OBC category. The seat has been vacant since. Although the University was granted one week’s time to file a short affidavit several opportunities were taken to have the affidavit placed on record. The matter has remained pending since then principally due to the time taken in bringing the counter affidavit on record and due to the pre occupation of the Court as well as on account of adjournments sought by the University. At the very least a perusal of the order sheets show that the petitioner is not at fault. 36. Be that as it may Mr. Rupal is right in submitting that the petitioner has missed the first semester of the course and the examinations. In these circumstances granting admission for the current academic year may not be possible. However the Court under Article 226 of the Constitution has to consider some way of moulding the relief. 37. The judgment of the Supreme Court in S. Krishna Sradha vs. The State of Andhra Pradesh & Ors. 2019 SCC OnLine SC 1609 Civil Appeal No. 1081 2017 decided on 13.12.2019] provides some guidance in this regard. In the said judgment the Supreme Court considered a case of candidates for admission into MBBS courses to determine whether there is any situation in which a candidate can be W.P.(C) 5392 2020 granted admission after the admission deadline has passed or whether the only relief available to a candidate in such a situation is the grant of compensation. The Supreme Court framed the question in the following terms: this Court “18. Heard Learned Counsel for the respective parties at length. The short but an important question of law posed for consideration of is what relief a meritorious candidate is entitled to when it is found that a meritorious candidate is denied an admission arbitrary and illegally by the concerned authorities and the fault is not attributable to the candidate at all and the candidate has pursued his her legal rights expeditiously and without delay whether in such a situation awarding compensation only can be said to be just and an adequate relief The issue which arises for consideration is whether having fulfilled the aforesaid prerequisites the Court can grant relief and order admission even after the cut off date for admission i.e. 30th September is over and whether the Court can grant admission beyond the intake either in the same year or in the next academic year ” 38. The Court observed that a candidate placed in this situation particularly one seeking admission in a professional course each year is very precious. Relying upon Articles 14 19 and 21 of the Constitution the Court held that for a deserving candidate the primary relief is restitutionary: “32. The right to equal and fair treatment is a component of Article 14 of the Constitution. As held by this Court Ashathat a transparent and fair procedure is the duty of every legal authority connected with admissions. In such cases denial of fair treatment to the candidate would not only violate his her right under Article 14 but would seriously jeopardize his her right under Articles 19 and 21 of the Constitution of India. A natural corollary of W.P.(C) 5392 2020 declaring that an administrative act more particularly the denial of admission illegally and for no fault of a candidate student violates principles of Article 14 is that the citizen injured must be put back to his her original position. In that sense the primary relief is restitutionary. As observed hereinabove for a meritorious student seeking admission in medical course is very important in the life of student candidate and denial of admission to a meritorious candidate though no fault of his her violates his her fundamental rights. Compensation could be an additional remedy but not a substitute for restitutionary remedies. In case of medical admissions even the restitutionary remedy of providing a seat subsequent year would lead to loss of one full academic year to a meritorious candidate which cannot be compensated in real terms. Thus compensation for loss of year could be provided but denial of admissions to a meritorious candidate cannot be compensated monetary terms. Thus denial of admission in medical course to a meritorious candidate for no fault of his her and though he she has approached the Court in time and despite the same not granting any just and equitable relief would be denial of justice. Therefore the question is what relief the Court can grant by which right to equal and fair treatment to a candidate are protected and at the to other candidate student and even compromising with quality education. Therefore a balance is required to be struck. However at the same time it can safely be said that the view taken by this Court in Jasmine Kaurthat the only relief which can be granted to such a candidate would be the compensation only is not good law and cannot be accepted. Even granting a relief to such a candidate student in the next academic year and to accommodate him her in the next year and in the sanctioned intake may even affect the right of some other candidate student seeking admission in the next academic year and that too for no fault of his her. Therefore we are time neither W.P.(C) 5392 2020 of the view that in the exceptional and in the rarest of rare cases and in case where all the conditions stipulated in paragraph 33.3 in the case of Jasmine Kaur are satisfied the Court can grant exceptional relief to the candidate of granting admission even after the cut off date is over.” 39. The Court thereafter concluded that in exceptional cases admission may be granted to a meritorious candidate even one month after the cut off date for medical admissions has passed. Relevant for the purposes of the present case are the conclusions recorded in paragraph 33 and which are as “33. xxxx iii) In case the Court is of the opinion that no relief of admission can be granted to such a candidate in the very academic year and wherever it finds that the action of the authorities has been arbitrary and in breach of the rules and regulations or the prospectus affecting the rights of the students and that a candidate is found to be meritorious and such candidate student has approached the court at the earliest and without any delay the court can mould the relief and direct the admission to be granted to such a candidate in the next academic year by issuing appropriate directions by directing to increase in the number of seats as may be considered appropriate in the case and in case of such an eventuality and if it is found that the management was at fault and wrongly denied the admission to the meritorious candidate in that case the Court may direct to reduce the number of seats in the management quota of that year meaning thereby the student students who was were denied admission illegally to be accommodated in the next academic year out of the seats allotted in the management quota. W.P.(C) 5392 2020 iv) Grant of the compensation could be an additional remedy but not a substitute for restitutional remedies. Therefore in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his her has to lose one full academic year and who could not be granted any relief of admission in the same academic year.” In so holding the Court affirmed the decision of a smaller bench in Asha vs. Pt. B.D. Sharma University of Health Sciences & Ors. 7 SCC 389 and overruled a contrary decision in Chandigarh Administration & Anr. vs. Jasmine Kaur & Ors. 10 SCC 521. Although the judgment in S. Krishna Sradha is expressly confined to MBBS courses the principles laid down by the Court provide valuable guidance. 41. The additional affidavit filed by the University dated 23.02.2021 in the present case clearly indicates that grant of admission to the petitioner at this stage would not be consonant with the requirement of a professional course like the MBA. Mr. Bhalaik during the course of arguments has conceded that the petitioner would be agreeable to admission for the course in question in the next academic year i.e. 2021 22. Mr. Rupal has also stated upon instructions that the admissions process for the year 2021 22 is in progress but students have not yet been granted admission. This is one of the alternatives contemplated by the Court in S. Krishna Sradha 42. Two other authorities also follow the same course: W.P.(C) 5392 2020 a) Following the judgment in S. Krishna Sradha the Supreme Court in National Medical Commission vs. Mothukuru Sriyah Koumudi & Ors. 2020 SCC OnLine SC 992applied the same guidelines for admission to post graduate medical courses. The Court disagreed with the directions of the High Court to create an additional seat for the petitioner in the year under consideration but granted her admission in the management quota of the concerned college for the next academic year. The petitioner was also granted compensation of Rs. 10 lakhs for the loss of one academic year. b) In Sneha Vats vs. University of Delhi & Ors. 2019 SCC OnLine Del 11199 7854 2019 decided on 18.11.2019] the petitioner sought admission to the MBBS Course in University of Delhi in the CW categoryProgramme in the year 2021 22. As held hereinabove the mistake made by the petitioner was condonable by the University particularly in view of the fact that he W.P.(C) 5392 2020 had followed up the matter with due diligence and rectified the mistake before the University had commenced processing the admissions and before any third party rights had intervened. He also approached this Court with alacrity. However the passage of time makes it difficult to require the University to grant him admission for the year 2020 21. Having regard to the fact that he did admittedly commit a typographical error which led to the impugned decision of the University I do not also consider it a fit case for grant of compensation to the petitioner for the year lost. 44. For the reasons aforesaid the petition is disposed of by setting aside the decision of the Sub Committee dated 07.08.2020 and directing the University to grant admission to the petitioner for the concerned course for the academic year 2021 22. Pending applications are also disposed of. There will be no order as to costs. APRIL 23 2021 PRATEEK JALAN J. W.P.(C) 5392 2020

No party can be permitted to unilaterally appoint an Arbitrator: High Court of Delhi.

Where one party unilaterally appoints an arbitrator, it defeats the purpose of unbiased adjudication of disputes between the parties. A single judge bench comprising of Hon’ble Justice Suresh Kumar Kait, in the matter of Hashnine Systems private Ltd. Vs. Eastern Air Command Head (Quarters), Indian Air Force (ARB.P. 356/2021), dealt with an issue where a petition has been filed seeking appointment of an Arbitrator for adjudication of disputes which have arisen between the parties, under Section 11(6) of the Arbitration and Conciliation Act, 1996. In the present case the respondent had arbitrarily invoked the Bank Guarantee No. 00960100000226 dated 14.03.2014 for an amount of Rs 21,36,100/- and Bank Guarantee No. 00960100000249, dated 26.06.2014 for an amount of Rs.10,68,035/-. Time and again the petitioner tried to approach the respondent to resolve the disputes. Petitioner had also sent a legal notice to the respondent to refund the amount and further had sent to make the payment within 15 days or consider it to be a notice as- ‘Notice Invoking Arbitration under Clause 3 of the Part III -Standard Conditions of Supply’. The respondent was asked to appoint an Arbitrator within 60 days to adjudicate the disputes between the parties, but there was no reply to those legal notices and hence was considered that the respondent did not appoint an arbitrator. Thereby the petitioner filed a petition. The respondent submitted that the petition is not maintainable as the respondent had already appointed an arbitrator. To this, the counsel of the petitioner strongly objected and stated that the arbitrator must be appointed in terms contained in clause 3 of Part III – Standard Conditions of Supply, and hence arbitrator unilaterally appointed by the respondent is not acceptable by the petition. After hearing both sides the court observed that- “The arbitration agreement between the parties and invocation of arbitration are not disputed by the respondent. No party can be permitted to unilaterally appoint an Arbitrator, as the same would defeat the purpose of unbiased adjudication of dispute between the parties.” Thereby the court allowed the petition and appointed a sole arbitrator to adjudicate the dispute between the parties.

ARB.P. 356 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 13.07.2021 HASHNINE SYSTEMS PRIVATE LIMITED .. Petitioner Through: Mr Avinash Sharma Advocate EASTERN AIR COMMAND HEAD QUARTERS) INDIAN AIR ...... Respondent Through: Mr. Rajesh Kumar Das Advocate with Mr. Shailesh Sharma HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT The present petition has been preferred seeking appointment of an Arbitrator under Section 11(6) of the Arbitration and Conciliation Act 1996 for adjudication of disputes which have arisen between the parties. The case of the petitioner in nutshell is that respondent has arbitrarily invoked the Bank Guarantee No. 00960100000226 dated 14.03.2014 for an amount of Rs 21 36 100 and Bank Guarantee No. 00960100000249 dated 26.06.2014 for an amount of Rs.10 68 035 and its various efforts to approach the respondent to resolve the disputes went in vain. In such circumstances petitioner sent a Legal Notice dated 16.11.2018 ARB.P. 356 2021 respondent to refund amount of Rs.32 04 135 along with the @18% and further sent a notice dated 02.03.2020 to either make the payment within 15 days or consider the notice as ‘Notice Invoking Arbitration under Clause 3 of the Part III Standard Conditions of Supply Orders No. EAC SO POV 03 2013 14 dated 03.03.2014(Main Order) and EAC SO POV 01 2014 15 dated 26.05.2014which arose between the parties in terms of aforesaid Clause 3. However since no reply to the notice dated 02.03.2021 was received and respondent did not appoint an Arbitrator in accordance conformity with the provisions of the Arbitration and Conciliation Act 1996 the present petition has been preferred. On behalf of respondent it is submitted that an Arbitrator has already been appointed and therefore the present petition is not maintainable. The aforesaid submission on behalf of respondent is strongly objected to by learned counsel for petitioner who submits that the unilateral appointment of an Arbitrator by the respondent is not acceptable to petitioner and Arbitrator has to be appointed in terms contained in Clause 3 of the Part III Standard Conditions of Supply Orders No. EAC SO POV ARB.P. 356 2021 03 2013 14 dated 03.03.2014 12 Bases) Main Order) EAC SO POV 01 2014 15 dated 26.05.2014is appointed as sole Arbitrator to adjudicate the dispute between the parties. The arbitration shall be conducted under the Delhi International Arbitration Centre of the Arbitration and Conciliation Act 1996 and not being ineligible under Section 12(5) of the Act before commencing the arbitration. 10. The fee of the Arbitrator shall be in accordance with the schedule of ARB.P. 356 2021 fees prescribed under the Delhi International Arbitration CentreInternal Management) Rules and Delhi International Arbitration Centre Administrative Cost and Arbitrators’ Fees) Rules 2012. 11. With aforesaid directions the present petition is accordingly disposed 12. A copy of this order be sent to the learned Arbitrator as well as Delhi International Arbitration Centrefor information. JUDGE SURESH KUMAR KAIT) of. JULY 13 2021 ARB.P. 356 2021

While granting bail, the Court has to keep in mind, inter alia, the larger interest of the public and State: Orissa High Court

In the last few years, the country has been seeing an alarming rise in white-collar crimes, which has affected the thread of the country’s economic structure. Deciding upon a bail application submitted by the accused charge for an economic offence, Justice S. K. Panigrahi, deciding on the case of Ajaj Ahamad V. State of Odisha (CGST) [BLAPL No. 1660 of 2021] upheld that as in the present case the accused is active in establishment and operation of the non-existent business entities for availing and passing of bogus ITC thereby defrauding the state exchequer then in such a case, “While granting bail, the Court has to keep in mind, inter alia, the larger interest of the public and State.” In the mentioned case, the accused was charged for economic offence as he was found to be the proprietor of M/s. Sony Iron and Steel Trading Co., the two companies out of ten non-existent companies that were investigated upon and it was during the scrutiny of various documents it was found that the petitioner was involved in passing of fake ITC to the non-existent firms without supply of goods and has availed ineligible ITC by using the fake invoices/bills without receipt of goods. Petitioner was found to be responsible for committing an economic offence of Approx. 5.2 Crores. Being charged with the above mentioned offence, the Petitioner filed for a bail application before the Court. The Court observed that even though there have been many similar cases where in the Court or other Courts have granted the bail, however, in this case the Court has to rely upon the circumstances of the case along with other judgement. The Court relied upon the judgement in the case of  Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation [ (2013) 7 SCC 439] where in the Supreme Court  opined that; “ While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.” It was also observed that for an investigation to take place, sometimes it is necessary for the accused to be in presence before the Investigating Officer as in case he will be set free while the investigation is on, he might hamper the evidences and process of investigation, same was held in the case of Adri Dharan Das v. State of W.B [2 (2005) 4 SCC 303] where in the Court opined that, “It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance….For these or other reasons, arrest may become an inevitable part of the process of investigation.”

IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 16621 Ajaj Ahamad Sidhartha Sankar Ray Advocate versus State of Odisha…. Opposite Party Mr. Sk. Zafarulla Additional Standing Counsel CORAM: JUSTICE S. K. PANIGRAHI Order No. 06. 1. This matter is taken up by video conferencing mode. 2. Heard learned counsel for the petitioner and learned counsel for the State. 3. The petitioner being in custody in connection with 2CC Case No.51 of 2020 pending in the Court of the learned S.D.J.M. Rourkela for the alleged commission of offences under Sections 132(1)(b) 7of CGST Act 2017. 4. It is alleged that on 29.2.2020 a search conducted at the office premises of one Santosh Kumar Gupta Proprietor of M s. Pacific Packaging Industries. In course of search it was found that 10 fake firms operated by Santosh Gupta which were non existent and are not making any business. On further investigation it was found involvement of two intermediary firms namely M s. Sony Iron and Steel Trading Co. and M s. Harihar Enterprisers who have availed fraudulent ITCfrom the above non existence firms. The petitioner happens to be the proprietor of M s. Sony Iron and Steel Trading Co. and managing both the firms. It is further alleged that during scrutiny of various documents it came to light that the present petitioner has actively 2 participated in passing of fake ITC to the above firms without supply of goods and has availed ineligible ITC by using the fake invoices bills without receipt of goods. It is alleged that the present petitioner is responsible for causing the huge loss to the State exchequer to the tune of Rs.5.2 crores approximately. 5. Learned counsel for the petitioner submits that the petitioner has been falsely implicated in the present case and the accused petitioner has no relation with Sri Santosh Kumar Gupta or M s Pacific Packaging Industries. It is also submitted that there is no evidence against the petitioner in the alleged crime. The grounds of arrest are contrary to the material evidences on record. 6. Learned counsel for the State vehemently objected to the prayer of the petitioner for release on bail. He further submitted that the present offence is a part of an organized tax fraud syndicate and a proper investigation will unearth the entire syndicate. As seen from record during search several incriminating materials containing such business transactions of such business entities were unearthed and seized with due acknowledgment. 7. The accusation against the petitioner relates to the commission of economic offences which are considered grave and therefore it must be viewed seriously. Offences of this nature affect the heart of the economy and usually involve a deep rooted conspiracy to cause huge loss of public funds. 8. Although this Court is cognizant of the fact that some accused persons in some similar cases have been enlarged on bail but every case turns on its own facts and circumstances. 9. The law relating to bail in cases of economic offences is more settled in view of the decision of the Hon’ble Supreme Court of India in Nimmagadda Prasad vs Central Bureau of Investigation which held that: 3 “23. Unfortunately in the last few years the country has been seeing an alarming rise in white collar crimes which has affected the fiber of the country s economic structure. Incontrovertibly economic offences have serious repercussions on the development of the country as a whole. In State of Gujarat v. Mohanlal Jitamalji Porwal and Anr. 1987) 2 SCC 364 this Court while considering a request of the prosecution for adducing additional evidence inter alia observed as under: 5... The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest.... interests of 24. While granting bail the court has to keep in mind the nature of accusations the nature of evidence in support thereof the severity of the punishment which conviction will entail character of the accused circumstances which are peculiar to the accused reasonable possibility of securing the presence of the accused at the trial reasonable apprehension of the witnesses being tampered with public State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail the Legislature has used the words reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected at this stage to have the evidence establishing the guilt of the accused beyond reasonable doubt. 25. Economic offences constitute a class apart and need to be visited with a different approach in the 4 matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the Furthermore in the case of Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation1 the Hon’ble Supreme Court opined that “35. While granting bail the court has to keep in mind the nature of accusations the nature of evidence in support thereof the severity of the punishment which conviction will entail character of the accused circumstances which are peculiar to the accused reasonable possibility of securing the presence of the accused at the trial reasonable apprehension of the witnesses being interests of tampered with public State and other similar considerations.” 10. It is also observed that while investigation has begun more and more evidence is being unearthed. There have been instances where the petitioner has rendered inconsistent statements and therefore securing his presence is essential so that he does not try to sabotage the investigation. In Adri Dharan Das v. State of W.B.2 the Hon’ble Supreme Court opined that “19. Ordinarily arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive preparation commission and aftermath of the crime and the connection of other persons if any in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance… .For these or other 17 SCC 439 24 SCC 303 5 reasons arrest may become an inevitable part of the process of investigation. … The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. …” 11. Thus as the law stands in such type of offences while granting bail the Court has to keep in mind inter alia the larger interest of the public and State. The accused is active in creation and operation of the non existent business entities for availing and passing of bogus ITC thereby defrauding the state exchequer. 12. the nature and gravity of accusation the nature of supporting evidence availability of prima facie case against the petitioner coupled with the fact that a huge amount of public money has been misappropriated and also the fact that further investigation of the case is under progress and taking into account the apprehension of the petitioner in tampering with the evidence in the larger interest of society I am not inclined to release the petitioner on bail. 13. Accordingly the bail application lacks merit and hence stands rejected. 14. Before parting it is clarified that the observations made hereinabove are only for the purposes of the present application and that the learned Trial Court seisin over the matter shall proceed with the case uninfluenced by the observations made hereinabove. 15. As the restrictions due to the COVID 19 situation are continuing learned counsel for the parties may utilize a soft copy of this order available in the High Court’s website or 6 print out thereof at par with certified copy in the manner prescribed vide Court’s Notice No.4587 dated 25th March Judge

No direction can be issued to the Election Commission of India in reference to the internal election of the parties – Madras High Court

“This court took cognizance of the aforesaid to maintain the writ petition seeking free and fair elections to the local bodies in reference to Article 243 of the Constitution. In the instant case, the election is not to local bodies, Assembly or Parliament, but internal elections of the political party.” These were said by the double bench of Hon’ble Mr. Munishwar Nath Bhandari, and Hon’ble Mr. Justice P. D. Audikesavalu in the case of J. Jayachandran v. The Election Commissioner of India (W.P.No.26171 of 2021) Here in the case writ petition has been filed seeking a writ of mandamus to forbear the first respondent from according its approval for the newly elected posts of Coordinator and Joint Coordinator of All India Anna Dravida Munnetra Kazhagam (AIADMK) pursuant to the election notice dated 2.12.2021. An interim injunction is also sought to restrain the fifth and sixth respondents from announcing the election result for the posts of Coordinator and Joint Coordinator pursuant to the election notice, pending disposal of the writ petition. Learned counsel for the petitioner submited that the petitioner is a loyal and sincere member of the second respondent political party for more than thirty years, who rendered dedicated service for upliftment of the people of the Tamil Nadu at large. The third and fourth respondents jointly announced the election notice on 2.12.2021, where the date of election to the posts of Coordinator and Joint Coordinator was mentioned to be on 7.12.2021 and, accordingly, the fifth and sixth respondents were appointed as Election Commissioners. The third and fourth respondents ignored the mandatory requirement of issuance of notice 21 days prior to the announcement of the elections and the attempt of the respondents was only to allow two nominations excluding others. The third and fourth respondents along with the fifth and sixth respondents did not allow any member to submit their nomination papers and, as a consequence, the third and fourth respondents would definitely get elected pursuant to the elections. The petitioner knowing about the schedule of election and denial of nomination by none other than the third and fourth respondents is left with no option but to prefer this writ petition to safeguard the democratic values of the party and the country. Learned counsel for the petitioner also referred to the judgment in the case of All India Anna Dravida Munnetra Kazhagam v. State Election Commissioner, 2007 (1) CTC 705, learned counsel for the petitioner submits that a public interest litigation would be maintainable whenever injustice is meted out to large number of people. Learned counsel for the petitioner has given further reference of the judgment of the Apex Court in the case of Board of Control for Cricket in India v. Cricket Association of Bihar and others, (2015) 3 SCC 251, wherein also the objection to the maintainability of the writ petition against the BCCI was raised. The Apex Court did not accept the objection, rather the writ petition was maintained keeping in mind the affairs of the BCCI not only to select the cricket team to represent the country, but even other functions of the BCCI. The double bench of Hon’ble Mr. Munishwar Nath Bhandari, and Hon’ble Mr. Justice P. D. Audikesavalu ruled out “In the light of the discussion made above, we do not find the writ petition to be maintainable against respondent Nos.2 to 6 and no direction can be issued to the Election Commission of India in reference to the internal election of the parties. Hence, the writ petition would not be maintainable in the present case. It is more so when despite an opportunity to learned counsel for the petitioner, he could not refer to any provision of the Act of 1951 empowering the Election Commission of India to look into the internal elections of the political party.” For the foregoing reasons, the writ petition fails and is dismissed finding it to be not maintainable.

W.P.No.261721 IN THE HIGH COURT OF JUDICATURE AT MADRASRESERVED ON:07.12.2021DELIVERED ON:14.12.2021CORAM :THE HON BLE MR.MUNISHWAR NATH BHANDARI ACTING CHIEF JUSTICEANDTHE HON BLE MR.JUSTICE P.D.AUDIKESAVALUW.P.No.261721J.Jayachandran .. Petitioner Vs1 The Election Commissioner of India Election Commission of India Nirvachan Sadan Ashoka Road New Delhi 110 001.2 The All India Anna Dravida Munnetra Kazhagamrep. by its Coordinator O.Pannerselvam and Joint coordinator Edapadi K.Palanisamy Head Office No. 226 Avvai Shanmugam Salai Royapettah Chennai 600 014. 3 O.Paneerselvam Coordinator The All India Anna Dravida Munnetra KazhagamNo.226 Avvai Shanmugam Salai Royapettah Chennai 600 014.____________https: www.mhc.tn.gov.in judis W.P.No.2617214 Edapadi K.Palanisamy Joint Coordinator The All India Anna Dravida Munnetra KazhagamNo.226 Avvai Shanmugam Salai Royapettah Chennai 600 014.5 C.Ponnaiyan Election Commissioner cum Organizational Secretary All India Anna Dravida Munnetra Kazhagam Head Office No.226 Avvai Shanmugam Salai Royapettah Chennai 600 014.6 Munnaivar Pollachi V.Jayaram MLA Election Commissioner cum Secretary of the Constituency Electoral Division All India Anna Dravida Munnetra Kazhagam Head Office No.226 Avvai Shanmugam Salai Royapettah Chennai 600 014... Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for a writ of mandamus forbearing the first respondent from according its approval for the newly elected post of Coordinator and Joint Coordinator of AIADMK party pursuant to the Election Notice dated 02.12.2021.For the Petitioner:Mr.N.G.R.Prasadfor M s.R.ThirumoorthyORDER____________https: www.mhc.tn.gov.in judis W.P.No.261721MUNISHWAR NATH BHANDARI ACJThe writ petition has been filed seeking a writ of mandamus to forbear the first respondent from according its approval for the newly elected posts of Coordinator and Joint Coordinator of All India Anna Dravida Munnetra Kazhagampursuant to the election notice dated 2.12.2021. An interim injunction is also sought to restrain the fifth and sixth respondents from announcing the election result for the posts of Coordinator and Joint Coordinator pursuant to the election notice pending disposal of the writ petition.2. Learned counsel submits that the petitioner is a loyal and sincere member of the second respondent political party for more than thirty years who rendered dedicated service for upliftment of the people of the Tamil Nadu at large. The second respondent political party came into existence at the instance of M.G.Ramchandran and was approved by the first respondent in the name of All India Anna Dravida Munnetra Kazhagamand allotted a symbol.____________https: www.mhc.tn.gov.in judis W.P.No.2617213. Learned counsel further submits that recently a resolution dated 1 2.12.2021 was flashed in the press media relating to election to the posts of Coordinator and Joint Coordinator of AIADMK from which it came to light that the rule relating to election of Coordinator and Joint Coordinator was amended by providing for direct election by primary members through a single ballot. The third and fourth respondents jointly announced the election notice on 2.12.2021 where the date of election to the posts of Coordinator and Joint Coordinator was mentioned to be on 7.12.2021 and accordingly the fifth and sixth respondents were appointed as Election Commissioners. As per the schedule given therein the counting of votes and results are scheduled on 8.12.2021. The third and fourth respondents ignored the mandatory requirement of issuance of notice 21 days prior to the announcement of the elections and the attempt of the respondents was only to allow two nominations excluding others. 4. Learned counsel also submits that when the petitioner made an effort to enter into the party office he was physically prevented ____________https: www.mhc.tn.gov.in judis W.P.No.261721and brutally manhandled. The third and fourth respondents along with the fifth and sixth respondents did not allow any member to submit their nomination papers and as a consequence the third and fourth respondents would definitely get elected pursuant to the elections. The petitioner knowing about the schedule of election and denial of nomination by none other than the third and fourth respondents is left with no option but to prefer this writ petition to safeguard the democratic values of the party and the country. The petitioner seeks conduct of free and fair election even if it is for the post in the political party for the reason that the members of the political party are elected as Members of Legislative Assembly and Members of Parliament after the election conducted by the Election Commission of India. In view of the above the petitioner challenged the election notice dated 2.12.2021 and presently even the result of the election conducted after sacrificing the democratic value for which the country is known.5. Learned counsel submits that the writ petition would be maintainable as directions have been sought against the Election Commission of India. It is in view of the fact that every election is to ____________https: www.mhc.tn.gov.in judis W.P.No.261721be monitored by the Election Commission under the Representation of the People Act 1951CTC 705 learned counsel for the petitioner submits that a public interest litigation would be maintainable whenever injustice is meted out to large number of people. The court need not insist on alternative remedy rather in exceptional and extraordinary situations it can exercise the jurisdiction under Article 226 of the Constitution of India. The democracy can function only if there are free and fair elections. The right to vote is a constitutional right and ____________https: www.mhc.tn.gov.in judis W.P.No.261721exercise of such right is accomplishment of freedom of expression of voters. The failure on the part of the State Election Commission to ensure free and fair elections may require exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India by this Court. It is for the reason that democracy can function only if there are free and fair elections and duty of the Election Commission is to ensure the same. Taking aforesaid into consideration the writ petition has been filed when the Election Commission failed to exercise its powers to maintain the democratic values and save the valuable right of the voter when it is otherwise a constitutional right. A reference to paragraphs 147 and 148 of the said judgment was given apart from the direction in paragraph 253 of the judgment to impress upon the Court not only to entertain the writ petition but to issue appropriate direction on the Election Commission not to accord approval for the newly elected posts of Coordinator and Joint Coordinator rather to pass appropriate orders to nullify the internal elections of the second respondent political party.7. Learned counsel for the petitioner has given further reference ____________https: www.mhc.tn.gov.in judis W.P.No.261721of the judgment of the Apex Court in the case of Board of Control for Cricket in India v. Cricket Association of Bihar and others 3 SCC 251 wherein also the objection to the maintainability of the writ petition against the BCCI was raised. The Apex Court did not accept the objection rather the writ petition was maintained keeping in mind the affairs of the BCCI not only to select the cricket team to represent the country but even other functions of the BCCI. Those functions were taken to be public functions and thereby the writ petition was held maintainable. The expression "State" appearing in Article 12 of the Constitution of India was given meaning. It is the case of the petitioner that the said judgment is squarely applicable to the present case. The second respondent political party AIADMK represents the public in the elections and thereby the writ petition would be maintainable against it. A further reference to an earlier judgment in the case of Zee Telefilms Ltd v. Union of India 4 SCC 649 has been given in paragraph 30 of the judgment in Board of Control for Cricket in Indiawhere the scope of Article 12 of the Constitution of India was elaborately discussed and held that if the function of a body is of public nature or State function the writ petition would be ____________https: www.mhc.tn.gov.in judis W.P.No.261721maintainable and accordingly the prayer is made not only to maintain the writ petition but to issue appropriate direction nullifying the election to the posts of Coordinator and Joint Coordinator of the second respondent political party.8. We have considered the submission made by learned counsel for the petitioner and perused the records.9. The writ petition has been filed by impleading the Election Commission of India as a party respondent apart from the political partyand other private parties as respondents to the litigation. The petitioner sought directions against the Election Commission of India not to accord its approval to the newly elected posts of Coordinator and Joint Coordinator of the second respondent political party. The prayer aforesaid is made without showing or referring to a provision under the Act of 1951 which obligates the Election Commission to approve the internal elections of the political party. Learned counsel for the petitioner could not specify the role of the Election Commission in the internal elections of the political party. It is apart from the fact that no provision could be referred to ____________https: www.mhc.tn.gov.in judis W.P.No.261721approve or given cognizance to the result of internal party elections. Thus learned counsel for the petitioner could not clarify as to why Election Commission of India has been impleaded as a party respondent. The issue aforesaid is quite relevant for the reason that all other respondents are private parties in reference to which question of maintainability of the writ petition needs to be examined. 10. Learned counsel would harp on the issue of democratic values to be maintained by the political party but could not refer to any provisions whereby the Election Commission can have a role so as to pass appropriate direction on the relief prayed for by the petitioner. 11. As per Article 324 of the Constitution of India the superintendence direction and control of elections is vested in the Election Commission. It is not for internal election of a political party. Section 29A of the Act of 1951 pertains to registration with the Election Commission of associations and bodies as political parties. However there is nothing in Section 29A that requires an enquiry to be conducted into the fairness and validity of the internal ____________https: www.mhc.tn.gov.in judis W.P.No.261721elections held for the posts in a political party. The objection raised by the petitioner that the elections to the posts of Coordinator and Joint Coordinator of the second respondent political party were held without adopting democratic procedure cannot be countenanced as the Election Commission is not empowered to go into the internal elections of a political party. All that Section 29A(9) of the Act of 1951 contemplates is that after an association or body has been registered as a political party any change in its name head office office bearers address etc. shall be communicated to the Election Commission of India without any delay. Such power does not confer any corresponding duty on the Election Commission of India to enter into the internal elections of a political party. In view of the above we find the impleadment of the Election Commission of India is for the sake of it.12. Now next issue that arises for consideration is as to whether the writ petition would be maintainable against the respondent Nos.2 to 6 private parties. Learned counsel for the petitioner submitted that the second respondent is discharging public function and thus a writ petition against it would be maintainable in ____________https: www.mhc.tn.gov.in judis W.P.No.261721the light of the judgment of the Apex Court in the case of Board of Control for Cricket in Indiathe present writ petition should be entertained and in the absence of it the democratic values required to be maintained by each party would stand sacrificed. It is more so when the internal elections conducted for the second respondent political party cannot be said to be free and fair.13. In the case of All India Anna Dravida Munnetra Kazhagam v. State Election Commissionerthe writ petition was not filed to challenge the internal elections of a political party but the elections to the local bodies. The allegation therein was of mass booth capturing and rigging. Therefore this court took cognizance of the aforesaid to maintain the writ petition seeking free and fair elections to the local bodies in reference to Article 243 of the Constitution. In the instant case the election is not to local bodies Assembly or Parliament but internal elections of the political party. ____________https: www.mhc.tn.gov.in judis W.P.No.261721It is not governed by any of the provisions of the Constitution or even the provisions of the Act of 1951 so as to direct the Election Commission not to approve or recognise the internal elections of the party. Moreover we have already held that the Election Commission of India has no authority to look into the internal elections of a political party. In view of the above the judgment in the case of All India Anna Dravida Munnetra Kazhagam v. State Election Commissionerwould have no application as a direction therein in the concluding paragraph was in reference to the elections to local bodies and not a private body.14. The other judgment referred by learned counsel for the petitioner is in the case of Board of Control for Cricket in Indiawherein also an objection was raised about the maintainability of writ petition. The Apex Court threadbare considered the facts of the case and especially the functions of the BCCI to record its finding with reference to Article 12 of the Constitution of India holding that the BCCI is selecting the cricket team to represent India and is discharging many other functions of public nature and thereby discharging public duties thus it would fall ____________https: www.mhc.tn.gov.in judis W.P.No.261721within the ambit of Article 12 of the Constitution of India. 15. In the case on hand the second respondent is not discharging duties of the nature discussed by the Apex Court in the case of Board of Control for Cricket in Indiaor even in the case of Zee Telefilms Ltd v. Union of Indiawould not have any application to the facts of this case.16. In the light of the discussion made above we do not find the writ petition to be maintainable against respondent Nos.2 to 6 and no direction can be issued to the Election Commission of India in reference to the internal election of the parties. Hence the writ petition would not be maintainable in the present case. It is more so when despite an opportunity to learned counsel for the petitioner he could not refer to any provision of the Act of 1951 empowering the Election Commission of India to look into the internal elections of the political party.____________https: www.mhc.tn.gov.in judis W.P.No.261721For the foregoing reasons the writ petition fails and is dismissed finding it to be not maintainable. No costs. Consequently W.M.P.No. 276221 is closed.(M.N.B. ACJ.) 14.12.2021 Index : YessasiTo:The Election Commissioner of India Election Commission of India Nirvachan Sadan Ashoka Road New Delhi 110 001.____________https: www.mhc.tn.gov.in judis W.P.No.261721M.N.BHANDARI ACJAND P.D.AUDIKESAVALU J.(sasi) W.P.No.261721 14.12.2021____________

“Appellate Authority is of the opinion that no interference of this forum is warranted…”: SEBI, Part 3.

On perusal of the first part of the query, it was noted that the respondent has categorically informed that the copy of the order dated 31st of October, 2018 passed in the matter of SICCL, has been forwarded to Director General & Inspector General of Police, West Bengal, for information. It was noted that the respondent has adequately addressed the query by providing the information available with him. Accordingly, no deficiency was found in the response by Appellate Authority. Further, on perusal of the second part of the query and the response provided thereto, Mr Baiwar agreed with the observation of the respondent that the same is in the nature of enquiry/ inquisition. It was found that the said queries cannot be construed as seeking ‘information’ as defined under section 2 (f) of the Right to Information Act, 2005. In view of the said observations, no deficiency was found in the response by Mr Baiwar. The respondent, in response to query numbers 4 and 5, observed that the queries are in the nature of enquiry/inquisition and thus cannot be construed as “information” as defined under section 2(f) of the Right to Information Act, 2005. On consideration, it was agreed that the response provided by the respondent and Mr Baiwar also found that the same is that nature of seeking clarification/opinion of the respondent. In this context, reference is made to the matter of Parvinder Singh vs. Public Information Officer under Right to Information (Order dated July 19, 2021), wherein the Hon’ble CIC held that, “12. Nevertheless, Commission has gone through the case records and on the basis of proceedings observes the information sought by the appellant is clarificatory in nature and thus, doesn’t qualify as information as per Section 2(f) of the RTI Act, 2005. Further, PIO is required to provide information as available with them in form of records, documents, memos, emails, opinions, advises, press releases, circulars, orders, log books, contracts, reports, papers, samples, models, data material held in any form and not supposed to create information or interpret information in respect of clarifications, hypothetical & futuristic queries.” In view of the said observations, the appellate authority found no deficiency in the response.

Appeal No. 43521 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43521 Dahyalal Ganeshbhai Panchal CPIO SEBI Mumbai The appellant had filed an application dated May 03 2021under the Right to Information Act 2005against the said response dated June 01 2021. I have carefully considered the application the response and the appeal and find that the matter can be decided based on the material available on record. 2. Grounds of appeal On perusal of the appeal it appears that the appellant is not satisfied with the reply to query numbers 1 3 4 and 5. In view of the submissions of the appellant I am only dealing with the said queries in this appeal. 3. Query number 1 The appellant vide query number 1 inter alia sought the following information pertaining to Sahara India Commercial Corporation Ltd.held: “... we would also like to observe that under the Right to InformationAct the citizen has the responsibility to specify the exact information he wants he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. In view of the same I find that the respondent did not have an obligation to provide such clarification or opinion under the RTI Act. Accordingly I am of the opinion that no interference of this forum is warranted at this stage. 7. Query number 3 The appellant vide query number 3 inter alia sought the following information 3. With respect to his complaint number 1…7 2020 filed before CID crime office Gandhinagar the appellant sought information whether investigation in this office has been entrusted by SEBI. If the same is entrusted by SEBI whether an inquiry is made in writing by SEBI about the progress of this investigation. The respondent in response to query number 3 informed that SEBI in compliance with the order dated October 31 2018 had forwarded the aforesaid order to the Director General & Inspector General of Police West Bengal for information. The respondent also informed that the query with regard to whether there is a provision for sending a reminder is in the nature of enquiry inquisition and thus cannot be construed as seeking “information” as defined under Section 2(f) of the RTI Act. 9. On perusal of the first part of the query I note that the respondent has categorically informed that the copy of the order dated October 31 2018 passed in the matter of SICCL has been forwarded to Director General & Inspector General of Police West Bengal for information. I note that the respondent has adequately addressed the query by providing the information available with him. Accordingly I do not find any deficiency in the response. 10. Further on perusal of the second part of the query and the response provided thereto I agree with the observation of the respondent that the same is in the nature of enquiry inquisition. I find that the said Appeal No. 43521 queries cannot be construed as seeking ‘information’ as defined under section 2of the RTI Act. In view of the said observations I do not find any deficiency in the response. 11. Query numbers 4 and 5 The appellant vide query numbers 4 and 5 inter alia sought the following 4. Whether SEBI can hand over the investigation against this company to the CBI to help in getting the refund of the deposits of the investors stuck in the company. 5. Whether SEBI can file a case against SICCL in the Economic Offence Bench of the Supreme Court or in the Economic Offence Bench of any High Court of the State to help the investors in getting refund of the deposits stuck in the company. 12. The respondent in response to query numbers 4 and 5 observed that the queries are in the nature of enquiry inquisition and thus cannot be construed as “information” as defined under section 2(f) of the RTI Act. 13. On consideration I agree with the response provided by the respondent and I also find that the same is that nature of seeking clarification opinion of the respondent. In this context reference is made to the matter of Parvinder Singh vs. Public Information Officer under RTI wherein the Hon’ble CIC held that “12. Nevertheless Commission has gone through the case records and on the basis of proceedings observes the information sought by the appellant is clarificatory in nature and thus doesn t qualify as information as per Section 2(f) of the RTI Act 2005. Further PIO is required to provide information as available with them in form of records documents memos emails opinions advises press releases circulars orders log books contracts reports papers samples models data material held in any form and not supposed to create information or interpret information in respect of clarifications hypothetical & futuristic queries.” In view of the said observations I do not find any deficiency in the response. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: July 27 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Commission of offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 : High Court of Himachal Pradesh

The question as to commission of offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 was examined by THE HIGH COURT OF HIMACHAL PRADESH , consisting of Chander Bhusan Barowalia in the matter of State of H.P vs. Kundan Lal  [ Criminal Appeal No. 511 of 2010 ]  on 21.6.2018. The facts of the case were that a police party was at place Jari in connection with investigation of FIR . Police personnel received secret information that accused is involved in selling of narcotics. On the way, the police associated independent witnesses, i.e., Smt. Saraswaati Devi and Shri Dot Ram. An intimation in compliance of Section 42 of the Act was reduced into writing and the same was sent, through Constable Sanjay Kumar, to Additional Superintendent of Police, Kullu. After receipt of the information, the Additional Superintendent of Police made an endorsement thereon and HC Nirat Singh made an entry. SI Onkar Singh alongwith the independent witnesses went to the shop of the accused, where the accused was present. Firstly, SI Onkar Singh gave his personal search to the accused, but nothing incriminating was found. Subsequently, search of the shop and residential room of the accused was conducted and a polythene bag was recovered, which was kept in a trunk. The said bag was checked and it was found to have contained charas in ball shape. On weighment, the recovered contraband was found to be 500 grams. The contraband was taken in possession and sealed with six seals having impression H. Facsimile seal was taken on a separate piece of cloth and seal, after its use, was handed over to Constable Munish Kumar. Photographs of the spot were also taken. Rukka was prepared and it was sent to police station, through HC Mukesh Kumar, whereupon FIR registered by ASI Rattan Chand and the case file was handed over HC Mukesh Kumar. Site plan was prepared and the statements of the witnesses were recorded. NCB form, in triplicate, was filled in on the spot. The accused was arrested and the case property was produced before ASI Rattan Chand, who resealed the same with four seals having impression E and the seal impression was taken on a separate piece of cloth. ASI Rattan Chand filled in the relevant columns of NCB form and the case property alongwith other documents was entrusted in the custody of MHC Ram Krishan qua which he made an entry at1 of the malkhana register.  Constable Kishan Chand took the case property alongwith the documents to FSL, Junga, and after deposit of the same in FSL, Junga, receipt was handed over to MHC Ram Krishan. A special report was prepared and it was submitted before Additional Superintendent of Police, who after endorsing the same, handed over the same to HC Nirat Singh. HC Nirat Singh made an entry qua the special report in the register. Forensic analysis report demonstrated that the sample of contraband contained 46.88% W/W resin and thus it was charas. After completion of investigation, challan was presented in the Court. The learned counsel for the petitioner  contended that the judgment is based on hypothetical reasoning, surmises and conjectures and the learned Trial Court has failed to appreciate the evidence, which has come on record, to its right perspective. He has argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. Conversely, the learned counsel for the respondent has argued that the judgment of acquittal has been passed by the learned Trial Court after appreciating the evidence, which has come on record, to its true perspective, thus the judgment of acquittal, as passed by the learned Trial Court, needs no interference and the appeal be dismissed. The learned Counsel for the respondent  contended that after re-appreciating the evidence the accused be convicted, as the learned Trial Court has failed to appreciate the evidence correctly and the appeal be allowed. The High Court of Himachal Pradesh  held that it is more than safe to hold that the prosecution has failed to prove the guilt of the accused beyond reasonable doubts and the findings of acquittal, as recorded by the learned Trial Court, needs no interference, as the same are the result of appreciating the facts and law correctly and to their true perspective. Accordingly, the appeal, which sans merits, deserves dismissal and is dismissed.

The State Of H.p. V. Kundan Lal High Court Of Himachal Pradesh Criminal Appeal No. 515 Of 1999 06 09 2010 The State Of H.p HON BLE JUSTICE R.B. MISRA HON BLE JUSTICE V.K. SHARMA JJ. LQ HimHC 2010 1733 R.B. Misra 1. The presence of accused respondent could not be ensured despite issuance of non bailable warrants. However Shri M.A. Khan Advocate has been requested to assist this Court as Amicus Curiae and he has agreed to the same. Accordingly Shri M.A. Khan Advocate has assisted this Court in response to the submissions made on behalf by Shri Rajinder Dogra Additional Advocate General for the appellant State 2. The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 04.08.1999 passed by the learned Special Judge Solan District Solan in Sessions Case No. 6 S 7 of 1999 acquitting the alleged accused under Section 20 of the Narcotic Drugs and Psychotropic Substances Act 3. Prosecution case is that police officials while on patrol duty apprehended the accused respondent in association with two independent witnesses and on his personal search 200 grams of charas was recovered from his jacket Rukka was sent by S.I. S.H.O. and two samples each 25 grams of charas were separated and sealed. Thereafter the samples were sent for chemical examination and the accused respondent was charged for the offences under Section 20 of the Narcotic Drugs and Psychotropic Substances Act 4. In order to prove its case prosecution examined as many as six witnesses whereas accused through his statement under Section 313 Cr.P.C. denied the prosecution case 5. Sant Ram and Satish Kumar were associated by the police officials in the raiding party as independent witnesses and from the search of the jacket of the accused respondent charas rapped in a white coloured polythene bag was recovered. The search was made in reference to a secret information received by the police party. However the search was made only by apprising the accused respondent that whether he wants to be (Printed For: Reetasa Samal 02 01 2022 On: 02:14:PM The State Of H.p. V. Kundan Lal searched by the police officer or by others on agreeing the accused respondent was searched 6. From the scrutiny of the prosecution witnesses and the material on record it appears that before making the search accused respondent was not apprised that he has a right to be searched by a Gazetted Officer or Magistrate or by the same police officer and only apprising him that he is to be searched is not the compliance of mandatory requirement of Section 50 of the NDPS Act 7. Two independent witnesses are also silent on the aspect that the searching police party had apprised the accused respondent of his right of being searched as such non compliance of mandatory requirement of Section 50 of the NDPS Act makes the prosecution case doubtful 8. In view of the inconsistencies contradictions and improbabilities in the prosecution case learned Special Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view lack of mandatory requirement under Section 50 of the NDPS Act and non support of the independent witnesses makes the prosecution case doubtful. The prosecution has failed to bring home the guilt against the accused respondents. In these circumstances criminal appeal being devoid of merit is dismissed 9. The Court appreciate the efforts made by Mr. M.A. Khan Advocate in assisting the Court on behalf of accused respondent as Amicus Curiae Disclaimer: Legitquest has made all efforts to avoid any omission and or mistake in publishing this document and adding editorial and other enhancements. Legitquest would not be liable in any manner whatsoever by reason of any omission or mistake in the published document or any action or advice rendered or accepted on the basis of the document or any editorial or other enhancements like idraf infographics Note Notebook Acts Rules Regulations Bills Notifications Circulars News Interviews Columns Treaties LawCommission Reports Constituent Debates and or any material or feature added by us. All disputes will be exclusively dealt with the Courts Tribunals at Delhi only. It is advised to check the authenticity of all published document from the original source (Printed For: Reetasa Samal 02 01 2022 On: 02:14:PM

A dispute between parties must be referred to an arbitrator if the development agreement between them calls for it: High Court of Delhi

A development agreement is a legally binding contract drafted between parties for the purpose of developing a property. In cases where an arbitration clause has been included in the agreement between the parties, any dispute between them must be referred to an arbitrator. This was held in the case of Raj Sujan & Another v Ms Gear Up Builders Pvt. Ltd. & Others [ARB.P. 588/2021] by a bench of the High Court of Delhi consisting of Justice Suresh Kumar Sait on the 26th of July 2021. The petitioner, Raj Sujan is the owner of Plot No. 21 situated at Huda Enclave in Hyderabad. The respondent, Ms Gear Up Builders Pvt ltd. is a company with whom the petitioner entered into a registered Development Agreement-cum-GPA on the 14th of May 2012 for the development of the mentioned property. As per the terms of the agreement, the respondents were required to complete the construction within a period of 21 months or in any case within a grace period of 3 months, i.e. by 23rd October 2014. However the respondents were unable to finish the construction within the grace period and requested a further extension of another 5 months, meaning the project would take till 31st March 2015 to be completed. However work remained pending even after the extension period got over. Eventually after s substantial delay, the respondents abandoned the work on site and refused to engage with the petitioners. The petitioners sent a legal notice to the respondents seeking the appointment of a Sole Arbitrator, in consonance with Clause 38 of the Development Agreement-cum-GPA which states that “In the event of any dispute arising between the parties herein touching these presents, such dispute shall be referred to a Sole Arbitrator duly appointed by both the parties and his/her award shall be final and binding on both the parties. The venue of arbitration shall be New Delhi and the provisions of the Arbitration and Conciliation Act, 1996 shall apply.” As the respondents refused to allow the appointment of the Arbitrator, the petitioners filed the present petition under Section 11(5) and 11(6) of the Arbitration & Conciliation Act 1996.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 26.07.2021 ARB.P. 558 2021 RAJ SUJAN & ANR. Mr. D. Abhinav Rao Adv. Petitioners MS GEAR UP BUILDERS PVT LTD & ORS. Respondents Through Mr. Navneet Dugar Adv. HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENTThe hearing has been conducted through video conferencing. The present petition is preferred by the petitioners under Section 11 5) and 11 of the Arbitration & Conciliation Act 1996 seeking appointment of an Arbitrator for adjudicating the disputes between the terms of the Development Agreement cum GPA dated 14.05.2012. The petitioners herein are the absolute owners of Plot No. 21 admeasuring 1076.40 sq. yards equivalent to 900 sq. mtrs. situated at Huda Enclave Jubilee Hills Hyderabad. ARB.P. 558 2021 3. The respondent No. 1 M s. Gear Up Builders Limited is a company registered under the Companies Act and respondent No. 2 Mr. B.V. Rajesh is the Managing Director of the respondent No. 1 company. Petitioners entered into a registered Development Agreement cum GPA dated 14.05.2012 with the respondent No. 1 for development on the aforesaid property of petitioners and respondent No.2 had signed the same on behalf of respondent No. 1. According to terms of aforesaid Agreement respondents were required to complete the construction within 21 months or in any case within a grace period of 3 months i.e. by 23.10.2014. However respondents were unable to complete the project on time and sought for further extension of time and the same was extended by 5 months and in this way the construction was to be completed by 31.03.2015. But even after extension of time the construction was not completed. According to petitioners various communications were made to respondents through email and respondents kept on assuring petitioners that the construction will be completed at the earliest. But after causing substantial delay the respondents abandoned the work on site and refused to engage with the petitioners and in such circumstances petitioners were constrained to send legal notice dated 15.03.2021 through their counsel to ARB.P. 558 2021 respondent No. 1 seeking appointment of Sole Arbitrator. However respondent No. 1 through its counsel sent a reply dated 27.03.2021 declining appointment of the proposed Arbitrator mentioned in the aforesaid notice dated 15.03.2021. At the hearing learned counsel for petitioners submitted that respondents have abandoned the work of petitioners and various disputes have arisen between them and these disputes can be resolved in terms of Clause 38 of Development Agreement cum GPA dated 14.05.2012. Further submitted that petitioners have claim of Rs.2 32 09 336 against the respondents. The aforesaid submission of petitioners’ counsel is disputed by counsel for respondents however existence of Development Agreement cum GPA dated 14.05.2012 is not disputed. I have heard learned counsel for the parties and have gone through the The relevant Clause 38 of Development Agreement cum GPA dated material placed on record. 14.05.2012 reads as under: “In the event of any dispute arising between the parties herein touching these presents such dispute shall be ARB.P. 558 2021 referred to a Sole Arbitrator duly appointed by both the parties and his her award shall be final and binding on both the parties. The venue of arbitration shall be New Delhi and the Arbitration and Conciliation Act 1996 shall apply.” the provisions of In the aforesaid view of the matter the present petition is allowed. Accordingly Justice H.R.Malhotra (Mobile: 9311510400) is appointed Sole Arbitrator to adjudicate the dispute between the parties. 11. The fee of the learned Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act 1996. 12. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the arbitration. 13. Needless to say all issues are left open for agitation by the parties and consideration by the learned Arbitrator. 14. A copy of this order be sent to learned Arbitrator for information. 15. With aforesaid directions the present petition is accordingly disposed SURESH KUMAR KAIT) of. JULY 26 2021 ARB.P. 558 2021

Cases can be tried together as ‘case and counter’ only when based on the same incident: High Court of Kerala

For multiple cases to be termed as ‘case and counter’, the rival versions should be based on the same incident and such cases alone can be tried together in a Sessions Court under powers given in Section 218 of CrPC. This was decided in the case of Jeevan and Others V State of Kerala [Crl.MC.No.231 OF 2021(H)] in the High Court of Kerala by Hon’ble Justice V.G.Arun. The case originated from a crime registered for offences punishable under Sections 143, 147, 148, 323, 324, 326 and 308 r/w 149 of IPC. The allegation was that the accused, due to their previous enmity towards the de facto complainant (Ambros) attacked him, resulting in him sustaining injuries. Ambros along with certain others, had attacked the 4th petitioner and his friends (petitioners 1 to 3) and had thereby committed offences under Sections 447, 425, 323, 324, 506 r/w 34 of IPC. Later, the petitioners filed Crl.M.P. seeking simultaneous trial of the Sessions Case along with C.C.No.567 of 2018 pending before the Judicial First Class Magistrate Court. The prayer was made on the ground that the two petitions were case and counter based on the same incident and trial of both should be conducted by the Sessions Court. This was dismissed by the court as it was held that the cases cannot be termed as, ‘case and counter’. Hence, the accused filed this petition in the high court. The Counsel for the petitioner, relying on the decision in Augustine v. State [1982 KLT 351], contended that minor differences in the time and place of occurrence cannot be a reason to refuse joint trial. From the aforementioned case, the court referred to the following extract “the connotation of the term ‘case and counter’ is very often used during criminal trials. The term in its general import stands for cases registered on the basis of rival versions or the same incident. Such cases need not always be registered on the basis of police reports. The underlying principle is that since the cases relate to the same occurrence and the witnesses in one may figure as accused in the other case and they may give conflicting versions, for grasping the real facts and for a proper appreciation of the evidence, it is always desirable that the two cases are tried by the same Court”. The court observed that for cases to be termed as ‘case and counter’ the rival versions should be based on the same incident. But in this case, they are based on two separate incidents that occurred at different times. Therefore, even if the second incident is an offshoot of the first, the final report in the Sessions Case and the complaint in the instant Case cannot be treated as rival versions of the same incident.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY THE 03RD DAY OF FEBRUARY 2021 14TH MAGHA 1942 Crl.MC.No.231 OF 2021(H SC 216 2017 OF PRINCIPAL ASSISTANT SESSIONS COURT NORTH CRIME NO.582 2017 OF Munambom Police Station Ernakulam AGED 18 YEARS S O.SURAN PAZHAMPILLY HOUSE PALLIPPURAM MUNANMBAM ERNAKULAM 683 515 AGED 26 YEARS S O.HARI THEVALLIL HOUSE PALLIPPURAM MUNANMBAM ERNAKULAM 683 515 AGED 20 YEARS S O.JAYAN KANKIRATHINKAL HOUSE PALLIPPURAM MUNANMBAM ERNAKULAM 683 515 AGED 19 YEARS S O.JOSHI PUTHENPADATH HOUSE PALLIPPURAM MUNANMBAM ERNAKULAM 683 515 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 682 031 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.01.2021 THE COURT ON 03.02.2021 PASSED THE FOLLOWING Crl.M.C.No.2321 Dated this the 03rd day of February 2021 Petitioners are accused Nos.1 to 4 in S.C.No.216 of 2017 pending before the Principal Assistant Sessions Court North Paravur. The case originated from Crime No.1187 of 2016 registered at the Munambam Police Station for offences punishable under Sections 143 147 148 323 324 326 and 308 r w 149 of IPC. The crime was registered on the allegation that at 8.00 p.m on 04.09.2016 the accused due to their previous enmity towards the de facto complainantattacked him resulting in Ambros sustaining Annexure B is the FIR in Crime No.5617 registered at the Munambam Police Station based on the complaint of the 4th petitioner that Crl.M.C.No.2321 Ambros along with certain others had attacked the 4th petitioner and his friendsvehemently contended that minor differences in the time and place of occurrence cannot be a reason to refuse joint trial. It is contended that the second incident is the offshoot Crl.M.C.No.2321 of the first and therefore ought to be treated as part of the same incident In Augustine the Full Bench after elaborately dealing with connotation of the term case and counter held as follows “4. Before going into the propriety of the procedure canvassed by the appellants it is desirable to deal with the connotation of the term “case and counter” which is very often used during criminal trials. The term in its general import stands for cases registered on the basis of rival versions or the same incident. Such cases need not always be registered on the basis of police reports. In respect of a particular occurrence the police on getting information may register a case against a certain individual say a person by name A. It may so happen that A himself sustained some injuries. A might approach the police and launch a complaint regarding his version of the occurrence and how he sustained the injuries. The two versions may be conflicting. Still the police may register a case and investigate it along with the main case already registered. After questioning witnesses the investigating officer may find that the version given by A is false. What the officer generally does is to file a charge sheet in the main case and a refer report in the case registered Crl.M.C.No.2321 on the basis of the statement of A. A would naturally feel aggrieved by the conduct of the police. It may also happen that even though A gave a statement the police did not register a case based on his statement. In both the above contingencies A is not left without his remedy. He may present a complaint before Court setting out how according to him the occurrence took place and he sustained the injuries and the Magistrate may take the complaint to file and proceed with it. The main case based on the police report and that based on the complaint give conflicting versions of the same incident and are therefore described as “case and counter”. In one the prosecuting agency will be the State while in the other it is the private complainant. The decision Achuthan v Bappu 1961 KLT. 412 represents the above type. There can also be case and counter case where both the prosecuting agencies are private individuals. Thus A may sustain injuries at the hands of B and in the course of the same transaction B may sustain injuries at the hands of A Both A and B would be having their own versions of the occurrence which would be conflicting with each other. In such cases if A and B prefer complaints against each other those cases also come under the purview of ‘case and counter.’It is now well recognised that cases and counter cases of the above type should be tried and disposed of by the same Court trial in one being followed by the other and the judgment in both being pronounced in quick succession. The Crl.M.C.No.2321 underlying principle is that since the cases relate to the same occurrence and the witnesses in one may figure as accused in the other case and they may give conflicting versions for grasping the real facts and for a proper appreciation of the evidence it is always desirable that the two cases are tried by the same Court.” From a reading of the judgment it is clear that for cases to be termed as case and counter the rival versions should be based on the same incident. In the instant case as rightly found by the learned Assistant Sessions Judge the cases are based on two separate incidents which occurred at two different places at different times Therefore even if the second incident is an offshoot of the first the final report in the Sessions Case and the complaint in the Calender Case cannot be treated as rival versions of the same incident. Being so the cases cannot be termed as case and counter. Crl.M.C.No.2321 It may also be pertinent to note that even under Section 218 Cr.P.C the distinct offences for which the accused are charged can be tried together only if the cases are pending before the same court. This position has been clearly laid down by the Honourable Supreme court in State of Punjab v. Rajesh Syal [AIR 2002 SC 3687]. In any event the Assistant Sessions Judge cannot withdraw a case pending before the Magistrate court and try it along with the Sessions Case Such power is available only to the Sessions Judge under Section 408 Cr.P.C For the foregoing reasons the challenge against Annexure D order fails. Consequently the Crl.M.C is dismissed V.G.ARUN JUDGE Crl.M.C.No.2321 PETITIONER S S EXHIBITS TRUE COPY OF THE FINAL REPORT IN SC TRUE COPY OF THE FIR NO.562 2017 REGISTERED BY MUNAMBAM POLICE STATION TRUE COPY OF THE PROTEST COMPLAINT FILED BEFORE HON BLE JFCM COURT NJARAKKAL WHICH IS NUMBERED AS CC 567 2018 DATED 28.02.2018 CERTIFIED COPY OF THE ORDER IN CRL.MP NO.224 2020 IN SC 216 2017 DATED

Existence of a right is the foundation of the jurisdiction of a Court to issue a ‘Writ of Mandamus’: High Court of J&K and Ladakh

The ‘Writ of Mandamus’ is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice, despite demanded, has not been granted as upheld by the Hon’ble High Court of J&K and Ladakh through a learned bench of Justice Ali Mohammad Magrey and Justice Sanjay Dhar in the case of Ghulam Hassan Lone Vs JK High Court & Ors [SWP No. 790/2019 [WP(C) No. 1227/2019]. Brief facts of the case are that the rejection of the claim of the Petitioner was challenged, amongst other grounds, primarily on the ground that the same is violative of the principle of “Equal Pay for Equal Work”. It is contended that since the Petitioner is performing his duties on the post of Plumber in the Respondent High Court, as such, he is entitled to get the same pay for such services as is being paid to the Plumbers working in various Departments of the Government of Jammu and Kashmir, including those working in the Estates Department and Public Health Engineering (Jal Shakti) Department. In essence, the Petitioner was seeking revision of pay scale already sanctioned against the post of Plumber in the Respondent-High Court which, on examination by the competent authority, is not found favour with in terms of the impugned Order dated 27th of April, 2017. Merely because the Government of Jammu and Kashmir has sanctioned the pay scale in the case of Plumbers working in various Government Departments other than the one available to the Petitioner, working in the Respondent-High Court, cannot be a ground for seeking pay revision at par with such Plumbers. The payment of salary to an employee of the Respondent-High Court on a post borne on the establishment of the High Court is sanctioned and attached with the said post by the competent authority. An employee of the Respondent-High Court is accordingly governed by the terms and conditions of their employment, including the grant of salary, other allowances, etc. The Petitioner has not placed on record any material which could substantiate his claim for the release of enhanced pay scale at par with the Plumbers working in the various Departments of the Government of Jammu and Kashmir. Merely because there are different pay scales sanctioned and attached to the post of Plumber in various Departments of the Government of Jammu and Kashmir is not sufficient to grant the Writ in favour of the Petitioner qua the relief claimed. In terms of settled legal position, for seeking a Writ from this Court, the Petitioner has to show as to which of his right stands violated as would warrant the Petitioner to approach this Court for seeking a ‘Writ of Mandamus’ in their favour. In conclusion, while referring to the judgment of Supreme court in State of UP & Ors. V. Harish Chandra & Ors.; (1996) 9 Supreme Court Cases 309, the High Court stated that “From the perusal of the law laid down above, it is crystal clear that existence of a right is the foundation of the jurisdiction of a Court to issue a ‘Writ of Mandamus’. In the case on hand, the Petitioner has not been able to show as to which of his right has been violated by the Respondents which can be directed to be enforced by way of issuing a ‘Mandamus’ from this Court. In this context, the irrefutable conclusion which can be drawn is that none of the right of the Petitioner stands violated by the Respondents for which a ‘Writ of Mandamus’ can be issued in his favour.”

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR SWP No. 790 2019No. 1227 2019] Serial No. 21 Regular Cause List Dated: 24th of November 2021. … Petitioner(s) Ghulam Hassan Lone Mr Mutahar Ahmad Makhdoomi Advocate. JK High Court & Ors. … Respondent(s) Through: Mr Sofi Manzoor Advocate vice Mr N. A. Beigh Senior Advocate for R 1 and Mr B. A. Dar Sr. AAG for R 2 & 3. Hon’ble Mr Justice Ali Mohammad Magrey Judge Hon’ble Mr Justice Sanjay Dhar Judge Per Magrey Jhas been rejected. The rejection of the claim of the Petitioner is challenged amongst other grounds primarily on the ground that the same is violative of SWP No. 790 2019No. 1227 2019] the principle of “Equal Pay for Equal Work”. It is contended that since the Petitioner is performing his duties on the post of Plumber in the Respondent High Court as such he is entitled to get the same pay for such services as is being paid to the Plumbers working in various Departments of the Government of Jammu and Kashmir including those working in the Estates Department and Public Health Engineering Department. In essence the Petitioner is seeking revision of pay scale already sanctioned against the post of Plumber in the Respondent High Court which on examination by the competent authority is not found favour with in terms of the impugned Order dated 27th of April 2017. Merely because the Government of Jammu and Kashmir has sanctioned the pay scale in the case of Plumbers working in various Government Departments other than the one available to the Petitioner working in the Respondent High Court cannot be a ground for seeking pay revision at par with such Plumbers. The payment of salary to an employee of the Respondent High Court on a post borne on the establishment of the High Court is sanctioned and attached with the said post by the competent authority. An employee of the Respondent High Court is accordingly governed by the terms and conditions of their employment including the grant of salary other allowances etc. The Petitioner has not placed on record any material which could substantiate his claim for the release of enhanced pay scale at par with the Plumbers working in the various Departments of the Government of Jammu and Kashmir. Merely because there are different pay scales sanctioned SWP No. 790 2019No. 1227 2019] and attached to the post of Plumber in various Departments of the Government of Jammu and Kashmir is not sufficient to grant the Writ in favour of the Petitioner qua the relief claimed. In terms of settled legal position for seeking a Writ from this Court the Petitioner has to show as to which of his right stands violated as would warrant the Petitioner to approach this Court for seeking a ‘Writ of Mandamus’ in their favour. ‘Mandamus’ literally means a command. The essence of ‘Mandamus’ is that it is a command issued for directing performance of a public legal duty. A ‘Writ of Mandamus’ is issued in favour of a person who establishes a legal right in himself. A ‘Writ of Mandamus’ is issued against a person who has a legal duty to perform but has failed and or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The ‘Writ of Mandamus’ is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted. The Apex Court of the country while dealing with the scope of ‘Mandamus’ in case titled ‘State of Kerela V. Smt. A. Lakshmikutty & Ors. 1986) 4 Supreme Court Cases 632’ at Paragraph No.34 has observed as SWP No. 790 2019No. 1227 2019] “34. We must refer to the case of Mani Subrat Jain v. State of Haryana & Ors. which was relied upon by learned counsel for the State Government. It is well settled that a writ of mandamus is not a writ of course or a writ of right but is as a rule discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general there fore the Court will only enforce the performance of statu tory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. Applying the principles stated in Halsbury s Laws of England 4th edn. vol. 1 paragarph 122 this Court observed that a person whose name had been recommended for appointment as a District Judge by the High Court under Art. 233(1) had no legal right to the post nor was the Governor bound to act on the advice of the High Court and therefore he could not ask for a mandamus. It was observed: of District “It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court. The Governor is not bound to act on the advice of the High Court. The High Court recommends the names of persons for appointment. If the names are recommended by the High Court it is not obligatory on the Governor to accept the recommendation. The consultation of the Governor with the High Court does not mean that the Governor must accept whatever advice of recommendation the High Court. Article 233 re quires that the Governor should obtain from the High Court its views on the merits and demerits of persons selected for promotion and direct is given by The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus. The present trend of judicial opinion appears to be that in the case of non selection to a post no writ of mandamus lies.” Again in the case of ‘State of UP & Ors. V. Harish Chandra & Ors. 9 Supreme Court Cases 309’ at Paragraph No.10 the Supreme Court held thus: SWP No. 790 2019No. 1227 2019] “10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the Court came to hold that the list does not expire after a period of one year which on the face of it is erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But so mandamus can be issued to direct the Government to refrain from enforcing the provision of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court could issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights it any of persons included in the list did not subsist. In the course of hearing the learned counsel for the respondents no doubt have pointed out some materials which indicate that the Administrative Authorities have made the appointments from a list beyond the period of one year from its preparation. The learned counsel appearing for the appellants submitted that in some cases pursuance to the direction of the Court some appointments have been made but in some other cases it might have been done by the Appointing Authority. Even though we are persuaded to accept the submission of the learned counsel for the respondents that on some occasion appointments have been made by the Appointing Authority from a select list even after the expiry of one year from the data of selection but such illegal action of the Appointing Authority does not confer a right on an applicant to be enforced by a Court under Article 226 of the Constitution. We have no hesitation in coming to the conclusion that such appointments by the Appointing Authority have been made contrary to the provisions of the Statutory Rules for some unknown reason and we deprecate the practice adopted by the Appointing Authority in making such appointments contrary to the Statutory Rules. But at the same time it is difficult for us to sustain the direction given by the High Court since admittedly the life of the select list prepared on 4.4.87 had expired long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the date they approached the High Court. We may not be understood to imply that the High Court must issue such direction if the writ Petition was filed before the expiry of the period of one year and the same was disposed of after the expiry of the statutory period. In view of the aforesaid conclusion of ours it is not necessary to deal with the question whether the stand of the State Government that there existed one vacancy in the year 1987 is correct or SWP No. 790 2019No. 1227 2019] From the perusal of the law laid down above it is crystal clear that existence of a right is the foundation of the jurisdiction of a Court to issue a ‘Writ of Mandamus’. In the case on hand the Petitioner has not been able to show as to which of his right has been violated by the Respondents which can be directed to be enforced by way of issuing a ‘Mandamus’ from this Court. In this context the irrefutable conclusion which can be drawn is that none of the right of the Petitioner stands violated by the Respondents for which a ‘Writ of Mandamus’ can be issued in his favour. For the foregoing reasons we do not find any merit in the instant Petition which is accordingly dismissed along with any pending CM(s) connected therewith. Interim directions if any subsisting as on date shall stand vacated. November 24th 2021 (Ali Mohammad Magrey) Judge Judge Whether the Judgment is reportable Yes No. Yes No. Whether the Judgment is speaking

During the pendency of the confiscation case, the petitioner shall not create any third party right or interest in respect of the vehicle, and shall not alienate the vehicle: Patna High Court

During the pendency of the confiscation procedure, the petitioner shall also submit the affidavits/undertakings, the petitioner shall not create any third party right or interest in respect of the vehicle and shall not alienate the vehicle during this period is upheld by the High Court of Patna through the learned bench led by HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR in the case of Upendra Prasad Vs. The State of Bihar (Civil Writ Jurisdiction Case No.19073 of 2021) Brief facts of the case are that Petitioner claims to be the owner of the confiscated car, which he alleges was stolen on September 29, 2019, for which he filed a police report. While petitioner cannot be held guilty for the transportation of unlawful liquor, the vehicle is subject to confiscation because it was used for that purpose. Furthermore, qualified counsel for the petitioner contends that no confiscation proceedings have yet been commenced. the petitioner is the owner of a seized vehicle that was stolen by unknown thieves on September 29, 2019, for which he has filed a FIR under Maharajganj Police station for the offence punishable under Section 379 of the Indian Penal Code. The stolen vehicle was being used by miscreants for the transportation of unlawful liquor, with 600 litres of unauthorised spirit recovered by the police. The culprits fled leaving the vehicle, which was seized by the police, Amnour P.S. for the offence punishable under Section 30(a) of the Bihar Prohibition and Excise Act, 2016. In light of the facts and circumstances of the case, the District Magistrate/Confiscating Officer Saran at Chapra is directed to initiate confiscation proceedings, if not already begun, and provisionally release the vehicle of petitioner after due identification of ownership of the vehicle which was stolen and subsequently recovered and seized by the police in an excise case on production of ownership and registration papers with respect to the vehicle in question in his name with two sureties (one local) to the extent of the value of the vehicle as indicated in the insurance document. During the pendency of the confiscation procedure, the petitioner shall also submit the following affidavits/undertakings, With these observations and directions, the writ petition, as well as any interlocutory applications, is dismissed, and the release shall be granted within 14 days of the date of submission of the sureties and undertakings as mentioned above, subject to the completion of the confiscation proceeding.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.190721 Upendra Prasad Son of Late Bunilal Prasad Resident of Village Baliya P.S. Maharajganj District Siwan ... Petitioner s The State of Bihar through the Principal Secretary Department of Excise Government of Bihar Patna The District Magistrate Saran at Chapra The Superintendent of Police Saran at Chapra The Station House Officer Amnour Police Station District Saran at Chapra ... Respondent s Mr.Sanjay Kumar Singh Advocate Mr. Vikash Kumar SC 11 For the Petitioner s For the Respondent s CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR Per: HONOURABLE MR. JUSTICE S. KUMAR Date : 23 12 2021 Heard learned counsel for the parties. Petitioner has prayed for following reliefs “To issue a writ in the nature of mandamus directing commanding the Respondents to release pickup van bearing Registration No. BR 29F 3356 having Engine MAIZN2GGA91GA4344 in favour of petitioner which has been seized in connection with Amnour P.S.Case No 209 2020 dated 5.6.2020 registered under Section 30(a of Bihar Prohibition and Excise Act 2016 B) Any other relief or reliefs writ or writs direction or directions which this Hon’ble Court may deem fit and proper in the facts and circumstances may also be Patna High Court CWJC No.190721 dt.23 12 2021 It is submitted on behalf of petitioner that he is the owner of the seized vehicle which was stolen by unknown thieves on 29.09.2019 for which he has lodged FIR giving rise to Maharajganj P.S Case No. 259 of 2019 for the offence punishable under Section 379 of IPC and same was being used by the miscreants for transportation of illicit liquor and 600 litre illicit spirit was recovered by the police from said stolen Pick up van giving rise to Amnour P.S. Case No. 2020 dated 05.06.2020 for the offence punishable under Section 30(a) of the Bihar Prohibition and Excise Act 2016 and the culprits fled away leaving the vehicle which was seized by the police. Petitioner claims to be owner of the seized vehicle and same was stolen on 29.09.2019 for which he had earlier instituted a case as such petitioner cannot be held to be responsible for transportation of illicit liquor however since the vehicle was used for transportation of illicit liquor same is liable for confiscation. It is further submitted by learned counsel for the petitioner that confiscation proceeding has not been initiated as yet. In the facts and circumstances of the case the District Magistrate Confiscating officer Saran at Chapra is Patna High Court CWJC No.190721 dt.23 12 2021 directed to initiate confiscation proceeding if not already initiated and provisionally release the vehicle of petitioner after due identification of ownership of the vehicle which was stolen and subsequently recovered and seized by the police in excise case on production of ownership and registration papers with respect to vehicle in question in his name with two suretiesto the extent of the value of the vehicle as indicated in the The petitioner while submitting the sureties shall also furnish the following affidavits undertakings i) That the petitioner shall not indulge in creating any third party right or interest in respect of the vehicle during the pendency of the confiscation proceeding and shall not alienate the vehicle during this period ii) The petitioner shall furnish an undertaking to produce the vehicle before the confiscating authority as and iii) Prior to release of the vehicle a Panchanama would be prepared wherein the photograph of the vehicle shall be taken and will be certified by the petitioner and same shall be kept on record so that in future if so required it may be used as a secondary evidence. The petitioner shall furnish an undertaking Patna High Court CWJC No.190721 dt.23 12 2021 not to challenge the said Panchanama The release shall be allowed within a period of 14 days from the date of submission of the sureties and the undertakings as stated above which would however be subject to finalization of the confiscation proceeding With said observations and direction this writ petition is disposed of disposed of. Interlocutory application if any shall also stand Sanjay Karol CJ) ( S. Kumar J

In Absence of Initial Challenge, Parties cannot take the Shelter of the Question of Limitation: National Company Law Appellate Tribunal, Principal Bench, New Delhi

Whether where, the appellant has not challenged the original order admitting the application whereby CIRP was initiated, the appellant can subsequently take the shelter of the question of limitation, was considered by the NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI, before a bench consisting of Justice Anant Bijay Singh, Member (Judicial); and Ms. Shreesha Merla,  Member (Technical), in the matter of Amish Kumar Gupt vs. K Subhra Narayan Mohapatra & Ors. [Company Appeal (AT) (Insolvency) No. 696 of 2020], on 25.01.22. The present appeal was preferred by the appellant – Amish Kumar Gupta being aggrieved and dissatisfied by the order dated 22.07.2020 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi, Principal Bench whereby and where under the application filed by the Resolution Professional under Section 33(2) of the Insolvency and Bankruptcy Code, 2016 (IBC) was allowed and appointed Mr. K. Subhra Narayan Mohapatra as Liquidator. On 31.08.2012, the account of the Corporate Debtor was classified as Non-Performing Asset by the Financial Creditor with the outstanding amount of Rs. 812.60 lacs. On 25.09.2012, the Notice issued under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The Financial Creditor filed Original Application for an amount of Rs. 1912.60 Lakhs before DRT II, Delhi. In the month of April and August, 2013 the Financial Creditor sold two properties of the guarantors situated at Khurja (U.P.), before issuing a Section 13(4) notice on 17.05.2017 under the SARFAESI Act against the Company, Promoters, Directors, Guarantors. On 30.12.2014, without considering the reply submitted by the Corporate Debtor in light of the show cause dated 11.09.2013, the Financial Creditor vide it order dated 20.12.2014 classified the Corporate Debtor as to be the wilful defaulter on the ground that the Corporate Debtor failed to submit any representation on the show cause notice which was completely fake. It was averred that on 12.01.2015, the Financial Creditor took physical possession of the plant of the Corporate Debtor at Pant Nagar, District Udham Singh Nagar, forcibly/illegally by putting its own lock on the main gate of the plant. It was also averred that on 18.05.2018, the Petition was filed by the Financial Creditor under Section 7 of the IBC with a prayer to trigger the Corporate Insolvency Resolution Process against the Corporate Debtor. The Adjudicating Authority vide its order dated 02.07.2019, admitted the Petition filed by the Financial Creditor and appointed the Interim Resolution Professional for carrying out the Insolvency Resolution Process of the Corporate Debtor. Thereafter, the Resolution Professional / Respondent No. 1 herein filed an Application under Section 33(2) of the IBC based on the resolution dated 17.12.2019 by the Committee of Creditors for liquidation of the Corporate Debtor. The said application was allowed by the Adjudicating Authority and hence the present appeal. The Learned Counsel for the Appellants argued that although the appellant has not challenged the order dated 02.07.2019 whereby the Application under Section 7 of the IBC filed on 18.05.2018 by the Financial Creditor (Respondent No. 3) was allowed; the appellant has challenged the order dated 22.07.2020 passed by Adjudicating Authority whereby the Application under Section 33(2) of the IBC filed by Resolution Professional (Respondent No. 2) was allowed and appointed Mr. K. Subhra Narayan Mohapatra as Liquidator. It was further submitted that the Adjudicating Authority admitted the application filed under Section 7 of the IBC without considering an important aspect of Limitation under Article 137 of the Limitation Act, 1963. It was further submitted that the application under Section 7 of the IBC was filed on 18.05.2018, on the basis of purported NPA dated 31.08.2012. It was asserted that this ignores the fact that the application under Section 7 of the IBC would be time barred if it is not filed within three years from the date of the cause of action. The Learned Counsels for the Respondents argued that the Liquidator is doing his statutory duty as assigned by NCLT from the date of appointment as Liquidator vide liquidation order dated 22.07.2020, therefore, based on these submissions there is no merit in the Appeal, the Appeal is fit to be dismissed. It was further asserted that as the appellant chose not to avail the remedy provided under the IBC, the order passed by the Adjudicating Authority attained finality. It was further contended that no objection was raised or received, and that CIRP was conducted strictly in accordance with the provisions of the IBC. It was also submitted that the said Applications were filed with the most ulterior motive and mala file intentions, that too only after the liquidation application was filed by the Resolution Professional solely with the object of frustrating the proceedings under the IBC. The National Company Law Appellate Tribunal, Principal Bench, New Delhi, after considering the facts, arguments presented, and placing reliance on several precedents, held that admittedly, the appellant has not challenged the original order dated 02.07.2019 passed by Adjudicating Authority admitted the Application filed by the Respondent No. 3 whereby the CIRP was initiated, so the Appellant cannot now take the shelter of the question of limitation. From the conduct of the appellant which has been mentioned therein above in the submissions of the Respondent No. 1 and 3, the tribunal was of the view that the appellant was taking all steps to delay the process. The tribunal did not find any illegality in the impugned order. Accordingly, the impugned order dated 22.07.2020 passed by the Ld. Adjudicating Authority (National Company Law Tribunal), New Delhi, Principal Bench was affirmed. The appeal was held to be devoid of merit and was accordingly dismissed.

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI Company Appeal(Insolvency) No. 6920 Arising out of order dated 22.07.2020 in CA 69(PB) 2020 passed by the Adjudicating Authority New Delhi Principal Bench.] IN THE MATTER OF: Amish kumar Gupta C 103 Priyadarshini Apartment I.P. Extension Delhi 110092. Appellant. K Subhra Narayan Mohapatra Liquidator and Erstwhile Resolution Professional of General Power Limited 5 Ground Floor F 21 Lado Sarai Behind Kalimata Mandir New Delhi 110030 Email: liquidator.gpcpl@gamil.com Phone No.380 9699 ....... Respondent No. 1. General Power Company Private Limited Represented through erstwhile resolution professional K Subhra Nrayan Mohapatra 406 E International Trade Tower Nehru Place New Delhi 110019 Email: info@generalpowerindia.com ...... Respondent No. 2. Punjab National Bank Through its Chief Manager Mr. Ramjeet Meena Pili Kothi Hospital Road KhurjaUP 203131 Email: bo0267@pnb.co.in Mobile No. 8171113351. ...... Respondent No. 3 For Appellant: Mr. Abhijeet Sinha Mr. Avishkar Singhvi Mr. Nipun Katyal and Mr. Aditya Shukla Advocates. Mr. Amish Kumar Gupta party in person. For Respondent: Mr. K Subhra Narayan Mohaptra in person Liquidator. Mr. Apoorv Sarvaria and Mr. Prakhar Shrivastava Advocates for R 3. JUDGMENT Justice Anant Bijay Singh This Appeal has been preferred by the Appellant Amish Kumar Gupta being aggrieved and dissatisfied by the order dated 22.07.2020 passed by the Ld. Adjudicating Authority New Delhi Principal Bench in CP 69(PB) 2020 whereby and where under the Application filed by the Resolution Professional under Section 33(2) of the Insolvency and Bankruptcy Code 2016 was allowed and appointed Mr. K. Subhra Narayan Mohapatra as Liquidator. 2. The facts giving rise to this Appeal are as follows: On 31.08.2012 the account of the Corporate Debtor was classified as NPA by the Financial Creditor with the outstanding amount of Rs. 812.60 On 25.09.2012 the Notice issued under Section 13(2) of SARFAESI Act. The Financial Creditor filed Original Application for an amount of Rs. 1912.60 Lakhs before DRT II Delhi being T.A. No. 1315. That in the month of April and August 2013 the Financial Creditor sold two properties of the guarantors situated at Khurja before issuing Company Appeal(Insolvency) No. 6920 Section 13(4) notice on 17.05.2017 under the SARFAESI Act against the Company Promoters Directors Guarantors. That on 11.09.2013 the Financial Creditor had issued a show Cause Notice to the Corporate Debtor for adopting recourse identification of wilful defaulter of the loan transaction. The compliance of the show cause to be made within 15 days from the receipt of the show cause. After receipt of the show cause notice the Corporate Debtor submitted a representation dated 16.09.2013 by registered post by serving on the Financial Creditor personally on 16.09.2013 it was specifically pleaded for declaration of wilful defaulter and a process has to be followed as per the guidelines of Reserve Bank of India dated 01.07.2014. That on 30.12.2014 without considering the reply submitted by the Corporate Debtor in light of the show cause dated 11.09.2013 the Financial Creditor vide it order dated 20.12.2014 classified the Corporate Debtor as to be the wilful defaulter on the ground that the Corporate Debtor failed to submit any representation on the show cause notice which was completely That on 12.01.2015 the Financial Creditor took physical possession of the plant of the Corporate Debtor at Pant Nagar District Udham Singh Nagar forcibly illegally by putting its own lock on the main gate of the plant. viii) That on 18.05.2018 the Petition was filed by the Financial Creditor under Section 7 of the IBC with a prayer to trigger the Corporate Insolvency Resolution Process against the Corporate Debtor. The Ld. Adjudicating Authority vide its order dated 02.07.2019 admitted the Petition filed by the Financial Creditor and appointed the Interim Company Appeal(Insolvency) No. 6920 Resolution Professional for carrying out the Insolvency Resolution Process of the Corporate Debtor. Thereafter the Resolution Professional Respondent No. 1 herein filed an Application under Section 33(2) of the IBC based on the resolution dated 17.12.2019 by the Committee of Creditors for liquidation of the Corporate Debtor. The said Application was allowed by the Ld. Adjudicating Authority and hence this Appeal. Submissions on behalf of the Appellant The Learned Counsel for the Appellant during the course of argument and in his memo of Appeal along with Written Submissions submitted that although the Appellant has not challenged the order dated 02.07.2019 whereby the Application under Section 7 of the IBC filed on 18.05.2018 by the Financial Creditorwas allowed rather the Appellant has challenged the order dated 22.07.2020 passed by Ld. Adjudicating Authority whereby the Application under Section 33(2) of the IBC filed by Resolution Professionalwas allowed and appointed Mr. K. Subhra Narayan Mohapatra as Liquidator. It is further submitted that the Ld. Adjudicating Authority admitted the Application filed under Section 7 of the IBC without considering an important aspect of Limitation under Article 137 of the Limitation Act. It is further submitted that the Application under Section 7 of the IBC was filed on 18.05.2018 on the basis of purported NPA dated 31.08.2012. This Application ignores the fact that the Application under Section 7 of the IBC would be time barred if it is not filed within three years from the date of the cause of action. Company Appeal(Insolvency) No. 6920 It is further submitted that the Hon ble Supreme Court had passed the judgments in the case of "Gaurav Hargovindbhai Dave Vs. Asset Reconstruction CompanyLtd. & Anr. 2019SCC 572 Jignesh Shah & Anr. Vs. Union of India & Anr. 2019 SCC 750 B.K. Educational Services Pvt. Ltd. Vs. Parag Gupta & Associates 2019 SCC 633 on the point of limitation. It is further submitted that the Ld. Adjudicating Authority has mechanically allowed the liquidation process therefore the impugned order is fit to be set aside and the Appeal be allowed. Submissions of the Respondent No. 1 The Liquidator during the course of argument and his Reply Affidavit along with Written Submissions submitted that an Application under Section 7 of the IBC was filed by Punjab National Bank the Financial Creditor Respondent No. 3) for initiation of CIRP of General Power Company Private Limited the Corporate Debtor. The said Application was heard on 02.07.2019 with order of initiation of CIRP of the Corporate Debtor. It is further submitted that a bailable warrant issued under Section 19(2) of the IBC by the Ld. Adjudicating Authority against Ex Directors Appellant) on 20.08.2019 for co operation with the Resolution Professional Respondent No.2). It is further submitted that on 20.09.2019 there was an MOU signed between the Resolution Professional and Mr. Amish Kumarthat the Appellant will be the custodian of assets at Rudrapur and allow valuer to visit the site for valuation. Company Appeal(Insolvency) No. 6920 It is further submitted that the Resolution Professional filed Application under Section 43 & 66 of the IBC before the Ld. Adjudicating Authority for avoidable and fraudulent transactions. It is further submitted that no resolution plan received with consent of COC vide COC meeting dated 17.12.2019 the Resolution Professional filed an Application under Section 33(2) of the IBC for initiation of Liquidation of Corporate Debtor. The liquidation order passed by Ld. Adjudicating Authority on 22.07.2020 with the resignation of said Resolution Professionalappointing Mr. K. Subhra Narayan Mohapatra as Liquidator. It is further submitted that the Liquidatorreceived the copy of the order from erstwhile Resolution Professionalthrough mail but there was no handover of assets which are with Ex Directors financial records and business operation by the Respondent No. 2 to Respondent No. 1. Immediately necessary steps under IBC were taken by the Liquidator made public announcementon 01.08.2020 inviting claims intimated all the statutory authorities filed e Form 28 with ROC and authorized with Income Tax e Filing. It is further submitted that the Liquidator visited the Registered office at Nehru Place New Delhi and found the door closed outside. Thereafter contacted Mr. Amish Kumarto handover the possession of assets and financial records but he did not get any response. The Liquidator mailed atinfo@generalpowerindia.com info@insulatorindia.com vipul424@yahoo.com and also sent the liquidation order through speed post which returned Company Appeal(Insolvency) No. 6920 It is further submitted that after receiving claims verified and constituted stake holder consultation committee. The Liquidator visited Punjab National Bank and opened escrow a c for liquidation and also visited the plant at Rudrapur but no one from Corporate Debtor was present at the site despite giving prior notice through e mail and sms. Due to non co operation from Ex Directors the Liquidator filed an Application under Section 19(2) of IBC. It is further submitted that during possession of Regd. Office caretaker of Ex Directors filed a complaint with the National Human Rights Commission against Liquidator and Police the Liquidator unable to take possession. Due to non cooperation from Ex Director Liquidator is unable to do his statutory duty which is time bound under IBC. The Liquidator is not able to file claim with the Company with security deposit and accounts receivable outstanding. Some are under CIRP Liquidator unable to file claim due to unavailability of financial records to Liquidator which are with Ex Directors. It is further submitted that the Liquidator is doing his statutory duty as assigned by Ld. NCLT from the date of appointment as Liquidator vide liquidation order dated 22.07.2020 therefore based on these submissions there is no merit in the Appeal the Appeal is fit to be dismissed. Submissions on behalf of the Respondent No. 3. 18. The Learned Counsel for the Respondent No. 3during the course of argument and his Reply Affidavit along with Written Submissions submitted that the Appellant never filed an Appeal against the original order dated 02.07.2019 passed by the Ld. Adjudicating Authority Company Appeal(Insolvency) No. 6920 admitted the Application under Section 7 of the IBC. As the Appellant chose not to avail the remedy provided under the IBC the order passed by the Ld. Adjudicating Authority attained finality. It is further submitted that CIRP was conducted strictly in accordance with the provisions of the Code. The interim resolution professional received the claims only from Punjab National Bank and the Committee of Creditors was constituted with Punjab National Bank as the sole member. The CoC in its 6th CoC meeting dated 17.12.2019 decided to liquidate the Corporate Debtor as no resolution plan was received and it was resolved that the Resolution Professional will move liquidation application before the Ld. Adjudicating Authority. The minutes of 6th CoC meeting were also circulated to the Corporate Debtor but again no objection was raised or received. It is further submitted that consequently an Application bearing No. 69 2020 under Section 33 of the Code was filed by the Resolution Professional before the Ld. Adjudicating Authority on 21.12.2019 with a prayer to liquidate the Corporate Debtor. The said Application was also forwarded to the Counsel for the Corporate Debtor vide email dated 21.12.2019(Insolvency) No. 6920 Code filed an Application bearing no. 567 2020 for recall of orders dated 02.07.2019 and another Application bearing no. 566 2020 for stay of proceedings. The said Applications were filed with the most ulterior motive and mala file intentions that too only after the liquidation Application was filed by the Resolution Professional solely with the object of frustrating the proceedings under the Code. It is further submitted that an Application bearing no. 2307 2020 was filed for replacement of the liquidator. The said Application was listed before the Ld. Adjudicating Authority on 28.06.2020. On the said date Ld. Adjudicating Authority directed that the said Application will be heard with the liquidation Application. On 22.07.2020 the Ld. Adjudicating Authority passed the order on the liquidation Application and also replaced the proposed Liquidator. The details link of hearing dated 22.07.2020 was also shared with the Counsel for the Corporate Debtor and on the date of hearing no objection whatsoever was raised by the Counsel for the Corporate Debtor. In the impugned order dated 22.07.2020 the attendance of Sh. Amit Goyal Advocate for the Corporate Debtor is marked which shows that the liquidation order was passed in the presence of the Counsel for the Corporate Debtor. It is further submitted that the present Appeal is filed with the object to defeat and frustrate the CIRP. Based on these submissions the Appeal is fit to be dismissed with costs. FINDINGS 24. After hearing the parties and having gone through the pleadings and also submissions we are of the considered opinion that admittedly the Appellant has not challenged the original order dated 02.07.2019 passed by Company Appeal(Insolvency) No. 6920 Ld. Adjudicating Authority admitted the Application filed by the Respondent No. 3 whereby the CIRP was initiated so the Appellant cannot now take the shelter of the question of limitation. 25. From the conduct of the Appellant which has been mentioned hereinabove in the submissions of the Respondent No. 1 and 3 we are of the view that the Appellant is taking all steps to delay the process. 26. We do not find any illegality in the impugned order. Accordingly the impugned order dated 22.07.2020 passed by the Ld. Adjudicating Authority National Company Law Tribunal) New Delhi Principal Bench in CP 69(PB) 2020 is hereby affirmed. The Appeal being devoid of merit is 27. Registry to upload the Judgment on the website of this Appellate Tribunal and send the copy of this Judgment to the Ld. Adjudicating Authority National Company Law Tribunal) New Delhi Principal Bench forthwith. Member[Ms. Shreesha Merla] MemberNew Delhi R. Nath 25th January 2022 Company Appeal(Insolvency) No. 6920

Once there is no compromise and/or a settlement between the parties before the Lok Adalat, the matter has to be returned to the concerned Court: Supreme Court.

The Lok Adalat has no jurisdiction at all to decide the matter on meris once it is found that compromise or settlement could not be arrived at between the parties as upheld by the Hon’ble Supreme Court through the bench lead by Justice M.R Shah in the case of Estate Officer v. Colonel H.V. Mankotia (Retired) (CIVIL APPEAL NO. 6223 OF 2021). The brief facts of the case are that the appellant herein filed a writ petition before the High Court being Writ Petition No.8074 of 2011. The matter was listed on 30.11.2013 before the Lok Adalat. By the impugned order, the members of the Lok Adalat held by the High Court entered into the merits of the writ petition and dismissed the same on merits, which is the subject matter of the present appeal. Shri Vikramjit Banerjee, learned ASG appearing on behalf of the appellant has vehemently submitted by relying on the case of State of Punjab and Ors. Vs. Ganpat Raj (2006) 8 SCC 364 that the impugned order has been passed in the Lok Adalat, Madhya Pradesh High Court and it has considered the case on merits and dismissed the same on merits, which is wholly impermissible in view of the relevant provisions of the Legal Services Authorities Act, 1987. Shri Banerjee, has heavily relied upon Section 19(5), Section 20(3) and Section 20(5) of the Act, 1987 in support of his submission that a Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or a settlement between the parties to a dispute and has no jurisdiction to enter into the merits of the case. Learned counsel appearing on behalf of the respondent while opposing the present appeal has submitted that the matter was placed before the Lok Adalat with the consent of the learned counsel for the appellant. Therefore, entire matter would be at large before the Lok Adalat and having found no substance in the petition, the members of the Lok Adalat have rightly dismissed the writ petition. The question which was posed for consideration of this Court is it open for the members of the Lok Adalat to enter into the merits of the writ petition and to dismiss the same on merits, in absence of any settlement arrived at between the parties? After a fair reading of Article 19 and 20 of Legal Services Authorities Act, 1987 and considering the case of State of Punjab and Ors. Vs. Ganpat Raj, the Hon’ble Court held that “The submission made by the learned counsel appearing on behalf of the respondent that once the matter was placed before the Lok Adalat with consent, thereafter the entire matter is at large before the Lok Adalat and, therefore, the Lok Adalat is justified in disposing the matter on merits has no substance and the same is required to be rejected outright. The impugned order passed by the Lok Adalat, Madhya Pradesh High Court dated 30.11.2013 in Writ Petition No.8074 of 2011 is hereby quashed and set aside. The matter is remanded to the High Court to decide the Writ Petition No.8074 of 2011 on merits and in accordance with law.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6223 OF 2021 …Appellant(s Colonel H.V. Mankotia…Respondent(s JUDGMENT M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned order dated 30.11.2013 passed by the High Court of Madhya Pradesh Bench at Indore in Writ Petition No. 80711 by which in a Lok Adalat held on 30.11.2013 the members of the Lok Adalat has entered into the merits of the writ petition and has dismissed the said writ petition preferred by the appellant on merits the original writ petitioner has preferred the present appeal. That the appellant herein filed a writ petition before the High Court being Writ Petition No.8074 of 2011. The matter was listed on 30.11.2013 before the Lok Adalat. By the impugned order the members of the Lok Adalat held by the High Court entered into the merits of the writ petition and dismissed the same on merits which is the subject matter of the present appeal. 2.1 That thereafter the appellant filed the restoration application before the High Court to restore the main writ petition submitting that the order passed in the Lok Adalat is beyond the jurisdiction of the Lok Adalat and therefore the same is not legal in the eyes of law. However the said application came to be dismissed by the High Court and hence the Shri Vikramjit Banerjee learned ASG appearing on behalf of the appellant has vehemently submitted that the impugned order has been passed in the Lok Adalat and the Lok Adalat Madhya Pradesh High Court has considered the case on merits and dismissed the same on merits which is wholly impermissible in view of the relevant provisions of the Legal Services Authorities Act 1987Section 20(3) and Section 20(5) of the Act 1987 in support of his submission that a Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or a settlement between the parties to a dispute and has no jurisdiction to enter into the merits of the case and decide the matter on merits in case the settlement is not arrived at. It is submitted therefore that the impugned order passed by the Lok Adalat Madhya Pradesh High Court is wholly without jurisdiction. Reliance is placed upon the decision of this Court in the case of State of Punjab and Ors. Vs. Ganpat Raj8 SCC 364 Learned counsel appearing on behalf of the respondent while opposing the present appeal has submitted that the matter was placed before the Lok Adalat with the consent of the learned counsel for the appellant. It is submitted that therefore once the matter was placed before the Lok Adalat with the consent entire matter would be at large before the Lok Adalat and therefore having found no substance in the petition the members of the Lok Adalat have rightly dismissed the writ petition which in the facts and circumstances of the case is not required to be interfered with by this Court in exercise of power under Article 136 of the Constitution. Heard the learned counsel for the respective parties at length. The short question which is posed for consideration of this Court is whether in the Lok Adalat held by the High Court was it open for the members of the Lok Adalat to enter into the merits of the writ petition and to dismiss the same on merits in absence of any settlement arrived at between the parties 6. While answering the aforesaid question the relevant provisions of the Legal Services Authorities Act 1987 which would have been a bearing on the jurisdiction of the Lok Adalat are required to be referred to which read as under: “19. Organization of Lok Adalats Every State Authority or District Authority or the Supreme Court Legal Services Committee or every High Court Legal Services Committee or as the case may be Taluk Legal Services Committee may organise Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit 2) Every Lok Adalat organised for an area shall consist of such number of : a) serving or retired judicial officers and b) other persons of the area as may be specified by the State Authority or the District Authority or the Supreme Court Legal Services Committee or the High Court Legal Services Committee or as the case may be the Taluk Legal Services Committee organising such Lok Adalats 3) The experience and qualifications of other persons referred to in clauseof sub sectionfor Lok Adalats organised by the Supreme Court Legal Services Committee shall be such as may be prescribed by the Central Government in consultation with the Chief Justice 4) The experience and qualifications of other persons referred to in clauseof sub sectionfor Lok Adalats other than referred to in sub sectionshall be such as may be prescribed by the State Government in consultation with the Chief Justice of the High Court A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of : i) any case pending before or ii) any matter which is falling within the jurisdiction of and is not brought before any court for which the Lok Adalat is organised Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law 20. Cognizance of Cases by Lok Adalats Where in any case referred to in clause of sub section of Section 19(a) the parties thereof agree or i) one of the parties thereof makes an application to the court for referring the case to the Lok Adalat for settlement and if such court is prima facie satisfied that there are chances of such settlement or ii) the court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat the court shall refer the case to the Lok Adalat: Provided that no case shall be referred to the Lok Adalat under sub clauseof clauseor clauseby such court except after giving a reasonable opportunity of being heard to the parties 2) Notwithstanding anything contained in any other law for the time being in force the Authority or Committee organising the Lok Adalat under sub section 1) of Section 19 may on receipt of an application from any one of the parties to any matter referred to in clause of sub sectionof Section 19 that such matter needs to be determined by a Lok Adalat refer such matter to the Lok Adalat for determination: Provided that no matter shall be referred to the Lok Adalat except after giving a reasonable opportunity of being heard to the other party. 3) Where any case is referred to a Lok Adalat under sub section or where a reference has been made to it under sub section the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties 4) Every Lok Adalat shall while determining any reference before it under this Act act with utmost expedition a compromise or settlement between the parties and shall be guided by the principles of justice equity fair play and other legal to arrive at 5) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties the record of the case shall be returned by it to the court from which the reference has been received under sub section for disposal in accordance with law 6) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties in a matter referred to in sub section that Lok Adalat shall advice the parties to seek remedy in a court 7) Where the record of the case is returned under sub sectionto the court such court shall proceed to deal with such case from the stage which was reached before such reference under sub sectionof Section 19 a Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or a settlement between the parties to a dispute in respect of any case pending before orany matter which is falling within the jurisdiction of and is not brought before any court for which the Lok Adalat is organised. As per sub sectionof Section 20 where in any case referred to in clause i) of sub sectionof Section 19 (a) the parties thereof agree orone of the parties thereof makes an application to the court for referring the case to the Lok Adalat for settlement and if such court is prima facie satisfied that there are chances of such settlement orthe court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat the court shall refer the case to the Lok Adalat. It further provides that no case shall be referred to the Lok Adalat under sub clause of clause or clause by such court except after giving a reasonable opportunity of being heard to the 6.2 As per sub sectionof Section 20 where any case is referred to a Lok Adalat under sub sectionor where a reference is made to it under sub section the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. Sub sectionof Section 20 further provides that where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties the record of the case shall be returned by it to the court from which the reference has been received under sub sectionfor disposal in accordance with law Thus a fair reading of the aforesaid provisions of the Legal Services Authorities Act 1987 makes it clear that the jurisdiction of the Lok Adalat would be to determine and to arrive at a compromise or a settlement between the parties to a dispute and once the aforesaid settlement compromise fails and no compromise or settlement could be arrived at between the parties the Lok Adalat has to return the case to the Court from which the reference has been received for disposal in accordance with law and in any case the Lok Adalat has no jurisdiction at all to decide the matter on meris once it is found that compromise or settlement could not be arrived at between the parties. Identical question came to be considered by this Court in the case of State of Punjab and Ors. Vs. Ganpat Raj and after considering Section 20 of the Act 1987 it is observed and held in paragraph 7 as under: “7. The specific language used in sub section of Section 20 makes it clear that the Lok Adalat can dispose of a matter by way of a compromise or settlement between the parties. Two crucial terms in sub sectionsof Section 20 are “compromise” and “settlement” The former expression means settlement of differences by mutual concessions. It is an agreement reached by adjustment of conflicting or opposing claims by reciprocal modification of demands. As per Termes de la Ley “compromise is a mutual promise of two or more parties that are at controversy”. As per Bouvier it is “an agreement between two or more persons who to avoid a law suit amicably settle their differences on such terms as they can agree upon”. The word “compromise” implies some element of accommodation on each side. It is not apt to describe total surrender. 1 All ER 135 :1 WLR 1548 Ch D)] ). A compromise is always bilateral and means mutual adjustment. “Settlement” is termination of legal proceedings by mutual consent. The case at hand did not involve compromise or settlement and could not have been disposed of by the Lok Adalat. If no compromise or settlement is or could be arrived at no order can be passed by the Lok Adalat. Therefore the disposal of Civil Writ Petition No. 9400 filed by the respondent is In view of the above the impugned order passed by the Lok Adalat dismissing the writ petition on merits is unsustainable and deserves to be quashed and set aside. The submission made by the learned counsel appearing on behalf of the respondent that once the matter was placed before the Lok Adalat with consent thereafter the entire matter is at large before the Lok Adalat and therefore the Lok Adalat is justified in disposing the matter on merits has no substance and the same is required to be rejected outright. The consent to place the matter before the Lok Adalat was to arrive at a settlement and or a compromise between the parties and not for placing the matter before the Lok Adalat for deciding the matter on merits. Once there is no compromise and or a settlement between the parties before the Lok Adalat as provided in sub sectionof Section 20 the matter has to be returned to the Court from where the matter was referred to Lok Adalat for deciding the matter on merits by the concerned court. In view of the above and for the reasons stated above the impugned order passed by the Lok Adalat Madhya Pradesh High Court dated 30.11.2013 in Writ Petition No.80711 is hereby quashed and set aside. The matter is remanded to the High Court to decide the Writ Petition No.80711 on merits and in accordance with law. The Writ Petition No.80711 is ordered to be restored to the file of the High Court for its decision on merits and in accordance with law. The present appeal is accordingly allowed. In the facts and circumstances of the case there shall be no order as to costs. Pending applications if any also stand disposed of [M.R. SHAH NEW DELHI OCTOBER 07 2021 ….J [A.S. BOPANNA

Preventive Justice requires and action to be taken to prevent apprehend objectionable activities. : Jammu and Kashmir High Court

In a case of preventative detention, no crime has been proven, no charge has been issued, and the grounds for such imprisonment is suspicion or reasonableness, rather than a criminal conviction that can only be justified by legal evidence. Preventive justice entails taking steps to prevent illegal activities from being perpetrated. However, when a person’s most fundamental human right, personal liberty, is violated, the laws of preventative detention must be strictly applied, and strict adherence to procedural protections, no matter how technical, must be made mandatory, this was brought up by Justice Vinod Chaterji Koul of the Jammu and Kashmir High Court in the matter of Mohammad Maqbool Dar versus Union Territory of Jammu and Kashmir [ WP(Crl) no. 148/2020] The order was passed for the fact that the detention order has been challenged on several grounds, learned counsel for the petitioner has adamantly argued that the material relied on by the detaining authority in making the impugned detention order has not been provided to the detainee in order for him to make an effective and meaningful representation. Another argument advanced by qualified counsel for the petitioner is that the grounds of detention are a carbon copy of the police report. Respondents argue in their counter-affidavit that the order of custody is not unconstitutional since it was necessary to hold the detainees under preventive detention. The detainee has been engaging in activities that jeopardise the state’s security. The detainees’ legal arguments are claimed to be legally flawed, unsustainable, and without validity. The grounds for detention are also claimed to be exact, immediate, and relevant. The detainee was also informed that he might appeal his custody order to the government. The warrant was read to him and explained, and the order was issued after careful consideration. The detainee’s main claim in this writ petition is that he was unable to make an effective and meaningful representation against his detention, either to the detaining authority or to the Government, because he was not provided with the necessary materials by the detaining authority. As a result, there is a violation of Article 22 (5) of the Constitution of India, and in the absence of such material. It was held by the court when appropriate remedies are available under the laws of the land for any omission or commission under such laws, preventive detention is not an option. As seen in, V. Shantha v. State of Telangana and others, AIR 2017 SC 2625. Invoking the provisions of the preventive detention Act as an extreme measure to insulate would be time consuming and would not be an effective deterrent to prevent the detainee from engaging in further prejudicial activities, affecting the maintenance of public order or the security of the State, and that there was no other option. Without a doubt, the offences alleged to have been committed by detainees are punishable under current laws, but such punishment must be carried out in accordance with those laws, and recourse to preventative detention legislation would not be justified. Preventive detention entails holding someone without charge in order to keep them from committing specific sorts of crimes. However, such detention cannot be used to replace the regular law or to relieve the investigating authorities of their responsibility to investigate crimes that the detainee may have committed. After all, preventive detention cannot be used to detain someone in custody indefinitely without a trial. In this regard, the decisions in the cases of Rekha and V. Shantha, as well as Sama Aruna v. State of Telangana AIR 2017 SC 2662, are relevant.

Wp(Crl) No. 148 202 vs Ut Of Jk And Others on 4 June 2021 Jammu & Kashmir High Court Srinagar Bench Wp(Crl) No. 148 202 vs Ut Of Jk And Others on 4 June 2021 HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR no. 148 2020 Reserved on: 20.05.2021 Pronounced on: 04.06.2021 Mohammad Maqbool Dar ....... Petitioner(s Through: Mr. G. N. Shaheen Advocate Versus UT of JK and others .........Respondent(s Through: Mr. Mir Suhail AAG HON BLE MR. JUSTICE VINOD CHATTERJI KOUL JUDGE JUDGMENT 1. The Order No.27 DMP PSA 20 dated 12.09.2020 issued by District Magistrate Pulwama placing detenu namely Mohammad Maqbool Dar S o Ghulam Ahmad Dar R o Hariparigam Tehsil Awantipora District Pulwama under preventive detention in terms of J&K Public Safety Act so as to prevent him from acting in any manner prejudicial to the security of the State and directing his lodgement in Central Jail Kot Bhalwal Jammu has been challenged in this writ petition through 2. The order of detention though challenged on various grounds yet learned counsel for the petitioner has vehemently urged that the material relied upon by the detaining authority while passing impugned detention order has not been provided to detenu to enable him to make an effective and meaningful representation. Another submission of learned counsel for petitioner is that grounds of detention are replica of police dossier 3. Respondents in their counter affidavit have submitted that there is no illegality in the order of detention as it was necessary to place the detenu under preventive detention. The detenu has been indulging in activities which are prejudicial to the security of the State. The grounds taken by the detenu are said to be legally misconceived untenable and without any merit. It is further contended that the grounds of detention are precise proximate and relevant. The detenu was also informed to make his representation to the Government against his detention order. The warrant was read over and explained to him and the order has been passed after proper application of mind. Detention record has also been produced by the learned counsel for respondents 4. I have heard learned counsel for the parties and considered the matter 5. The main ground taken by the detenu in this writ petition is that he was not in a position to make an effective and meaningful representation either to the detaining authority or to the Government against his detention because he was not provided the material by the detaining authority thus there is violation of provisions of Article 22of the Constitution of India and in absence of such material he was prevented from making an effective representation Indian Kanoon Wp(Crl) No. 148 202 vs Ut Of Jk And Others on 4 June 2021 6. To evaluate the submissions made by learned counsel for parties vis à vis furnishing of material to detenu that has been relied upon by detaining authority while issuing impugned detention order it would be appropriate to go through the detention record produced by learned counsel for respondents. Detention record contains amongst others Execution Report which reveals that only four leaves have been furnished to detenu. It does not show or suggest that detenu has been furnished copy of dossier copies of FIR and other relevant material relied upon by detaining authority while issuing impugned detention order 7. Bare reading of impugned detention order divulges that Sr. Superintendent of Police Awantipora vide his letter no. Pros PSA 2020 68 71 dated 09.09.2020 produced dossier material record and other connected documents in respect of detenu and it was only after perusal thereof that impugned detention order has been issued by detaining authority. Grounds of detention attribute various incidents and instances to detenu and mention that detenu has been instigating provoking the masses against the government and his persistent involvement in antinational activities is posing severe threat to the security of the State. Detention record also mentions lodgment of one FIR against the detenu. The material relied upon by detaining authority thus assumes significance in the facts and circumstances of the case. It needs no emphasis that the detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act 1978 unless and until the material on which the detention order is based is supplied to the detenu. It is only after the detenu has all the said material available that he can make an effort to convince the detaining authority and thereafter the Government that their apprehensions concerning the activities of detenu are baseless and misplaced. If detenu is not supplied the material on which detention order is based he will not be in a position to make an effective representation against his detention order Failure on the part of detaining authority to supply the material relied at the time of making the detention order to detenu renders detention order illegal and unsustainable. While saying so I draw the support from the law laid down in Thahira Haris Etc. Etc. v. Government of Karnataka AIR 2009 SC 2184 Union of India v. Ranu Bhandari 2008 Cr. L. J. 4567 Dhannajoy Dass v District Magistrate AIR 1982 SC 1315 Sofia Gulam Mohd Bham v. State of Maharashtra and others AIR 1999 SC 3051 and Syed Aasiya Indrabi v. State of J&K & others 2009S.L.J 219 8. In the present case it is submission of respondents that there are very serious allegations against detenu as he has always been in the lead role in anti national activities which are detrimental to the sovereignty and integrity of the country and has been creating law and order problem. And in this connection a criminal case is already going on against detenu under various provisions of Penal Laws and if he is found guilty he will be convicted and given appropriate sentence. Maybe offences allegedly committed by detenu attract punishment under prevailing laws but that has to be done under prevalent laws and taking recourse to preventive detention laws would not be warranted Detention cannot be made a substitute for ordinary law and absolve investigating authorities of their normal functions of investigating crimes which detenu may have committed. After all preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. The Supreme Court in Rekha v. State of Tamil Nadu AIR 2011 SCW 2262 while emphasising need to adhere to procedural safeguards observed Indian Kanoon Wp(Crl) No. 148 202 vs Ut Of Jk And Others on 4 June 2021 It must be remembered that in case of preventive detention no offence is proved and the justification of such detention case is suspicion or reasonable probability and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as "jurisdiction of suspicion" The Detaining Authority passes the order of detention on subjective satisfaction. Since Clauseof Article 22 specifically excludes the applicability of Clausesandthe detenue is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards however technical is in our opinion mandatory and vital 9. In a case of preventive detention no offence is proved nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But at the same time when a person s greatest of human freedoms i.e. personal liberty is deprived the laws of preventive detention are required to be strictly construed and a meticulous compliance with the procedural safeguards howsoever technical has to be mandatorily made. Reference in this regard is made to Haradhan Saha v. State of West Bengal & ors 3 SCC 198 Union of India v. Paul Manickam & anr 8 SCC 342 Rajinder Arora v. Union of India4 SCC 796 Powanammal v. State of Tamil Nadu and anr. AIR 1999 SC 618 G. M. Shah v. State of J&K 1 SCC 132 Talib Hussain v. State of J&K others 2009SLJ 849 Nissar Ahmad Bhat v. State & ors 2014SLJ 1047 Shahmali v. State others 2010SLJ 56 Dilawar Magray v. State of J&K & ors 2010SLJ 696 and Sajad Ahmad Khan v. State & others 2010SLJ 743 10. Preventive detention cannot be resorted to when sufficient remedies are available under general laws of the land for any omission or commission under such laws.as also in Sama Aruna v. State of Telengana AIR 2017 SC 1 1 . B a s e d o n t h e a b o v e d i s c u s s i o n t h e p e t i t i o n i s d i s p o s e d o f a n d D e t e n t i o n O r d e r No.27 DMP PSA 20 dated 12.09.2020 issued against the detenu Mohammad Maqbool Dar S o Indian Kanoon Wp(Crl) No. 148 202 vs Ut Of Jk And Others on 4 June 2021 Ghulam Ahmad Dar R o Hariparigam Tehsil Awantipora District Pulwama is quashed. As a corollary respondents are directed to set the detenu at liberty forthwith provided he is not required in any other case. Disposed of 12. Detention record be returned to the learned AAG Vinod Chatterji Koul) Judge Srinagar 04.06.2021 Qazi Amjad Secy Whether approved for reporting Yes No Indian Kanoon

The corporation may recover damages from the employer by way of penalty: High Court Of New Delhi

The present two petitions have been filed by the Petitioner seeking to quash the order dated 30th March 2020 by which damages have been imposed by the Employees State Insurance Corporation, and the same issue was held in the judgement passed by a single bench judge comprising JUSTICE PRATHIBA M. SINGH, in the matter M/S. vishakha FACILITY MANAGEMENT(P) LTD V. EMPLOYEES STATE INSURANCE CORPORATION W.P.(C) 3045/2020 and CM APPL. 10603/2020 M/S VISHAKHA FACILITY MANAGEMENT (P) LTD V. EMPLOYEES STATE INSURANCE CORPORATION dealt with an issue mentioned above The first petition was W.P. (C) 3045/2020 wherein an interim order was granted on 5 th May 2020 directing that no precipitative action shall be taken till the next date of hearing, and the said order was continuing in the W.P.(C) 3030/2020 & W.P.(C) 3045/2020 said petition. Further, in W.P. (C) 3045/2020, on the strength of the interim order passed in W.P. (C) 3045/2020, an interim order was granted on 6th May 2020. Later the petitioner was directed to deposit a sum of Rs. 50,00,000/-, as a condition for grant of an interim order, which was also not complied with. On 12th July 2021, a detailed order was passed by this Court vacating the interim orders granted in these matters. The said order is dated 12th July 2021. Also, they mentioned the strength of the interim order passed in WP(C) 3045/2020, an interim order was also granted on 6th May 2020, in WP(C) 3030/2020. Thereafter, these two petitions was also been taken up together and similar orders have been passed. Meanwhile, the vide order dated 9th September 2021 passed by this Court in W.P. (C) 5630/2020, time was granted to deposit the sum of Rs.50,00,000/-. The relevant extract from the order dated 9th September 2021. The said writ petition W.P. (C) 5630/2020 was disposed of The court perused the facts and argument’s presented, it thought that- “Since there is no representation in these petitions for at least the last two hearings, the petitions are dismissed for non-prosecution. For the period during which the interim orders were in operation and indulgence was W.P.(C) 3030/2020 & W.P.(C) 3045/2020 enjoyed by the Petitioner, the Respondent would be entitled to recover interest as may be determined by the authorities. With these observations, the present petitions, and all pending applications, are disposed of”.

6 & 7 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 8th November 2021 Through: None. W.P.(C) 3030 2020 and CM APPL. 10548 2020 M S. VISHAKHA FACILITY MANAGEMENT(P) LTD... Petitioner EMPLOYEES STATE INSURANCE CORPORATION.. Respondent M S VISHAKHA FACILITY MANAGEMENTLTD... Petitioner W.P.(C) 3045 2020 and CM APPL. 10603 2020 Through: Mr. K.P. Mavi Advocate. Through: None. EMPLOYEES STATE INSURANCE CORPORATION.. Respondent Through: Mr. K.P. Mavi Advocate. JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.(Oral) This hearing has been done through video conferencing. The present two petitions have been filed by the Petitioner seeking to quash order dated 30th March 2020 by which damages have been imposed by the Respondent Employees State Insurance Corporation against the Petitioner under Section 85 B of the Employees’ State Insurance Act 1948 for the wage periods from June 2016 to September 2016 and February 2017 to May 2017 in W. P.3030 2020 as also May 2014 to May 2016 in W.P.3045 2020. The first petition was W.P. 3045 2020 wherein an interim order was granted on 5th May 2020 directing that no precipitative action shall be taken till the next date of hearing and the said order was continuing in the W.P.(C) 3030 2020 & W.P.(C) 3045 2020 said petition. Further in W.P.3045 2020 on the strength of the interim order passed in W.P. 3045 2020 an interim order was granted on 6th May 2020. In a connected matter being W.P.(C) 5630 2020 vide order dated 26th August 2020 the Petitioner was directed to deposit a sum of Rs. 50 00 000 as a condition for grant of an interim order which was also On 12th July 2021 a detailed order was passed by this Court vacating the interim orders granted in these matters. The said order dated 12th July not complied with. 2021 reads as under: These are three writ petitions filed by the “2. Petitioner M s Vishakha Facility Management Limited. In WP3045 2020 an interim order dated 5th May 2020 was granted by this Court directing that no precipitative action shall be taken till the next date of hearing. This interim order is continuing in the said writ petition and pleadings were directed to be completed. Vide order dated 27th August 2020 rejoinder was directed to be filed and some costs by way of donation of 200 trees was also imposed due to delay. Thereafter vide order dated 1st October 2020 since there was non compliance by the Petitioner vacation of the interim order granted was pressed for. However on the said date the said interim order was not vacated. On 6th October 2020 none appeared for the Petitioner and further time was granted for filing rejoinder. Again on 23rd February 2021 none appeared for the Petitioner. On the strength of the interim order passed in 3. WP(C) 3045 2020 an interim order was also granted on 6th May 2020 in WP(C) 3030 2020. Thereafter these two petitions have been taken up together and similar orders have been passed. There was no representation in either of these petitions on 23rd February 2021 i.e. the last date of hearing. W.P.(C) 3030 2020 & W.P.(C) 3045 2020 In WP(C) 5630 2020 vide order dated 26th 4. August 2020 the Petitioner was directed to deposit a sum of Rs. 50 00 000 as a condition for grant of an interim order and the appeal before the EPF tribunal was permitted to proceed. It is submitted by Mr. Kumar ld. counsel that the said amount of Rs. 50 00 000 has not been deposited. Further vide order dated 23rd October proceedings before the CGIT were stayed. Thereafter an application for modification was filed by the Petitioner seeking modification of the interim order passed by this Court. None appears for the Petitioner despite the matters having been passed over. Further the submission of the Respondents is that interim orders have been obtained by concealment of material facts before the court. 5. Under these circumstances interim orders granted in all these three matters stand vacated. In the interest of justice adverse orders are deferred in respect of the main matters. 6. List on 15th September 2021.” Even today none has appeared for the Petitioner. Vide order dated 9th September 2021 passed by this Court in W.P. 5630 2020 time was granted to deposit the sum of Rs.50 00 000 . The relevant extract from the order dated 9th September 2021 reads as under: “11. Accordingly the Petitioner is now directed to make the payment of Rs.50 00 000 as directed within two weeks. If the said payment is not made the CGIT is permitted to proceed in accordance with law…...” The said writ petition W.P.5630 2020 was disposed of. Since there is no representation in these petitions for at least the last two hearings the petitions are dismissed for non prosecution. For the period during which the interim orders were in operation and indulgence was W.P.(C) 3030 2020 & W.P.(C) 3045 2020 enjoyed by the Petitioner the Respondent would be entitled to recover interest as may be determined by the authorities. 7. With these observations the present petitions and all pending applications are disposed of. PRATHIBA M. SINGH NOVEMBER 8 2021 W.P.(C) 3030 2020 & W.P.(C) 3045 2020

The disciplinary authority has the powers to impose a penalty of dismissal upon the delinquent even after his attaining the age of superannuation: Jharkhand High Court

Since the disciplinary proceedings were conducted when the employee was working, the disciplinary authority has the authority to place the punishment of dismissal/major penalty on the respondent even though he has reached the age of superannuation. Because of the legal fiction provided under the rules, it can be completed in the same manner as if the employee had remained in service after superannuation. The judgement was passed by the High Court of Jharkhand in the case of Bhaswati Sharma vs The State of Jharkhand [W.P.(S) No.3284 of 2012] by Single Bench consisting of Hon’ble Justice Deepak Roshan. The instantaneous writ application has been preferred by the petitioner praying therein for quashing the charge sheet issued under letter No.548, and also for quashing the letter No.1159; whereby the petitioner has been issued second show-cause notice as regards the report of the enquiry officer finding that the appointment of the petitioner was made irregular. Petitioner has also challenged the enquiry report. Learned counsel for the petitioner argued that after retirement the respondent cannot continue with the departmental proceeding. He lastly submits that the departmental proceeding which was initiated and the second show-cause which was issued was stayed by this and the respondents were restrained from taking any final decision on the departmental proceeding and now since the petitioner has retired no action can be taken against this petitioner. Learned counsel for the respondent submits that the petitioner was illegally appointed without the proper procedure of appointment. There was no advertisement published by the department. Neither any competent appointment committee has recommended the petitioner for appointment nor was an interview held for the same. He lastly submits that other similarly situated teachers who were also illegally appointed have been terminated and the petitioner could not take benefit of stay order by this Court and the instant writ application deserves to be dismissed as the initial appointment itself is illegal without following proper procedure of appointment. While Relying upon The Apex Court judgment Mahanadi Coalfields Limited Vs. Rabindranath Choubey, wherein it was held that “the disciplinary authority has the powers to impose a penalty of dismissal upon the delinquent even after his attaining the age of superannuation, because of the legal fiction provided under the rules, it can be completed in the same manner as if the employee had remained in service after superannuation.”

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.32812 Bhaswati Sharma … … 1. The State of Jharkhand through its Secretary Human Resources Development Department Government of 2. Director Secondary Education) Government of Jharkhand Ranchi. Jharkhand Ranchi. 3. District Education Officer Sahibganj. … … Respondents CORAM HON BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner :Mr. Rajeeva Sharma Sr. Adv. For the Res. State :Mr. Shray Mishra A.C. to G.A. III Through: Video Conferencing Heard learned counsel for the parties through 15 16.03.2021 V.C. The instant writ application has been preferred by the petitioner praying therein for quashing the charge issued under letter No.548 dated 18.02.2010 Annexure 9) and also for quashing the letter No.1159 dated 03.05.2012 whereby the petitioner has been issued second show cause notice as regards the report of the enquiry officer finding that the appointment of the petitioner was made irregular. Petitioner has also 11). challenged the enquiry report dated 21.06.211 clearly stipulates that if there is misconduct or pecuniary loss to the government then only the said provision can be invoked. retirement the respondent State cannot continue with the departmental proceeding. He lastly submits that the departmental proceeding which was initiated and the second show cause which was issued was stayed by this Court vide order dated 28.08.2012 and the respondents were restrained from taking any final decision on the departmental proceeding and now since the petitioner has retired no action can be taken against this petitioner. In nutshell Mr. Sharma argued that after Mr. Shrey Mishra learned counsel for the respondent State submits that the petitioner was illegally appointed without proper procedure of appointment in the year 1985 on the post of Assistant Teacher in Rajkiya Kannya Madhya Vidyalaya Sahibganj by Inspector of School cum Deputy Director of Education. further submits there was no advertisement published by the department. Neither any competent appointment committee has recommended the petitioner for appointment nor was any interview held for the same. As a matter of fact the issue with regard to Mr. Mishra further submits that in her B.Ed illegal appointments was further investigated by the C.B.I and the then District Education Officer enquired the matter of appointed teacher of Rajkiya Kannya Madhya Vidyalaya and found irregularity and illegality in the appointment. Further on perusal of the show cause reply of the writ petitioner the District Education Officer Sahibganj found that the petitioner has been illegally appointed without following the departmental procedure of appointment and has also been sanctioned first time bound promotion. certificate no name of college was mentioned meaning thereby to say it was not known from which college the petitioner has completed B.Ed degree and due to all these facts charge sheet was issued and the departmental proceeding was conducted and when the second show cause notice was issued to the petitioner before imposing the order of punishment this petitioner challenged the second show cause notice along with the enquiry report etc. which was since stayed by this Court no final order can be passed. He lastly submits that other similarly situated teachers who were also illegally appointed have been terminated and the petitioner could not take benefit of stay order by this Court and the instant writ application deserves to be dismissed as the initial appointment itself is illegal without following proper procedure of appointment. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits it appears that the appointment of this petitioner illegal inasmuch as no proper procedure appointment was followed. No advertisement was published and the petitioner was appointed by the then School Inspector cum Deputy Director of Education. From counter affidavit it further appears that the B.Ed certificate which was submitted by this petitioner the name of the college has not been mentioned. It further transpires that there was also a C.B.I enquiry in the light of mass illegal appointments. All these facts which have been mentioned in the counter affidavit have not been rebutted by the petitioner by way of any rejoinder. the only argument advanced by the learned senior counsel for the petitioner is that since a development took place and the petitioner has already retired on 31.01.2018 the department is prevented from taking any further action. With regards to illegal appointment the Hon’ble Apex Court in the case of State of Orissa and Ors. Vs. At this stage it is pertinent to mention here that Mamata Mohanty reported in 3 SCC 436 at paragraph No.37 and 38 has laid down the law as under: 37. It is a settled legal proposition that if an order is bad in its inception it does not get sanctified at a later stage. A subsequent action development cannot validate an action which was not lawful at its inception for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law in violation of which he has obtained the benefits. If an order at the initial stage is bad in law then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. 38. The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore continuation of a person wrongly appointed on post does not create any right in his favour. The issue is now no more res integra that if the initial appointment was not made by following due process of selection as envisaged by the relevant rules the appointment itself will be illegal and the averments made in the counter affidavit has not been controverted by the learned counsel for the petitioner either in the argument or filing any rejoinder there was no open advertisement and no due process of selection was followed as envisaged in the relevant Rules. Since stay was granted in favour of the petitioner as such no final order could be passed by the department in the departmental proceedings. By going through the order dated 28.08.2012 it transpires that no specific reasons has been mentioned and this Court has simply directed that counter affidavit shall be filed within four weeks and in the meantime no final decision shall be taken against the petitioner. From the entire order sheet it transpires that no endeavor was taken by either of the parties to get the case heard on merits and it further transpires that after the order dated 28.08.2012 the case was listed for hearing eight times and every time the case was adjourned at the request of the parties. Now coming to the argument advanced by the learned senior counsel that no order can be passed since the petitioner has already retired in the year 2018 it is clarified that the departmental proceeding against this petitioner was pending due to the order of stay passed by this Court and it is not a case that any fresh departmental proceeding is to be initiated against this petitioner after her retirement as such the department shall proceed in the pending departmental proceeding in accordance with law. decision of the Hon’ble Apex Court in the case of Takhatray Shivadattaray Mandad Vs. State of Gujrat reported in 1989 SuppSCC 110. In the said case the question of departmental enquiry instituted before retirement and its continuation after the age of superannuation was considered. It was held 10. In this regard reference may be made to the proceedings could be continued under the relevant rules and as provided the order could have been passed with respect to pension and gratuity. The proceedings did not become infructuous. Recently the Hon’ble Apex Court in the case of Chairman cum Managing Director Coalfields Limited Vs. Rebindranath Choubey reported in 2020 SCC online SC 470 has held that the disciplinary authority has powers to impose penalty of dismissal upon the delinquent even after his attaining the age of superannuation. Relevant portion of Para 70 & 72 are quoted herein below: 70. Several service benefits would depend upon the outcome of the inquiry such as concerning the period during which inquiry remained pending. It would be against the public policy to permit an employee to go scot free after collecting various service benefits to which he would not be entitled and the event of superannuation cannot come to his rescue and would amount to condonation of guilt. Because of the legal fiction provided under the rules it can be completed in the same manner as if the employee had remained in service after superannuation and appropriate punishment can be imposed. Various provisions of the Gratuity Act discussed above do not come in the way of departmental inquiry and as provided in Section 4(6) and Rule 34.3 in case of dismissal gratuity can be forfeited wholly or partially and the loss can also be recovered. An inquiry can be continued as provided under the relevant service rules as it is not provided in the Payment of Gratuity Act 1972 that inquiry shall come to an end as soon as the employee attains the age of superannuation. We reiterate that the Act does not deal with the matter of disciplinary inquiry it contemplates recovery from or forfeiture of gratuity wholly or partially as per misconduct committed and does not deal with punishments to be imposed and does not supersede the Rules 34.2 and 34.3 of the CDA Rules. The mandate of Section 4(6) of recovery of loss provided under Section 4(6)(a) and forfeiture of gratuity wholly or partially under Section 4(6)(b) is furthered by the Rules 34.2 and 34.3. If there cannot be any dismissal after superannuation intendment of the provisions of Section 4(6) would be defeated. The provisions of section 4(1) and 4(6) of Payment of Gratuity Act 1972 have to be given purposive interpretation and no way interdict holding of departmental inquiry and punishment to be imposed is not the subject matter dealt with under the Act. and in view of the decision of three Judge Bench of this Court in Ram Lal Bhaskarand our conclusions as above it is observed and held that the appellant employer has a right to withhold the gratuity during the pendency of the disciplinary proceedings and the disciplinary authority has powers to impose the penalty of dismissal major penalty upon the respondent even after his attaining the age of superannuation as the disciplinary proceedings were initiated while the employee was in 72. In view of the above and for the reasons stated above 11. In view of the aforesaid discussions and judicial pronouncements this Court is of the opinion that the stay order dated 28.08.2012 deserves to be vacated. 12. Consequently the instant writ application is hereby dismissed and the matter is remitted back to the disciplinary authority with a direction to proceed in the matter in accordance with law by giving notice to the petitioner annexing the copy of second show cause notice and after getting the reply if any pass appropriate order within a period of four months from the date of receipt production of a copy of this order. It goes without saying that the petitioner shall fully co operate in the pending departmental proceeding. Deepak Roshan J.) Fahim

Wife has the Right to Claim Maintenance from the Estate Inherited by the Father – In – Law: Bombay High Court

 A widow has every right to claim maintenance from the estate inherited by her father-in-law held by Hon’ble Justice Nitin W Sambre in the case of Sardool Singh Sucha Singh Matharoo V. Harneet Kaur [Writ Petition (S.T.) No. 4054 of 2020] observed that u/s 19 of the Hindu Adoption and Maintenance Act, 1956, the widow has every right to claim maintenance from the estate inherited by the father-in-law. The respondent was married to the late son of the petitioner and had a son. Both of the respondent widow’s parents passed away and she had no independent source of earning and the widow and her son are completely dependent on the earnings of the petitioner father-in-law. She subsequently filed proceedings under Section 19 and 22 of Hindu Adoption and Maintenance Act, 1956 seeking grant of maintenance of Rs. 1.5 lakh per month for herself and Rs. 50,000 for son, before the family court, the court awarded a maintenance of Rs. 40,000 and Rs. 30,000 per month, which was challenged by the petitioner. It was observed that “At the outset, it is required to be submitted that the plain reading of Section 19 of the Act contemplates that the respondents have every right to claim the maintenance after the death of husband from the estate inherited by her father-in-law i.e. the present petitioner. That proviso to Sub-Section (1) of Section 19 contemplates that the respondent has to demonstrate that she is unable to maintain herself. It is in this eventuality she can claim maintenance from the estate of her husband, still fact remains that the said burden can be discharged by respondent no.1 at an appropriate stage. The object with which the provision is made in the statute book for grant of interim maintenance cannot be ignored.” It was further observed by the Hon’ble Court “That being so, it cannot be at this stage presumed that the maintenance is disproportionate to the legal source of income of the petitioner. Rather the maintenance awarded to respondent no.1 to the tune of Rs.40, 000/- and to respondent no.2, grandson of Rs.30, 000/- appears to be justified, considering the income drawn by the Petitioner as reflected in the hereinabove.” Click here to read the judgement

1 wpst 4054.2020.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITIONNO.4054 OF 2020 Sardool Singh Sucha Singh Vs …. Petitioner Harneet Kaur widow of Bhupinder Singh Matharoo & Anr. Mr. Bipin Joshi a w Mr. Prayag Joshi for Petitioner Mr. G.L. Bajaj for Respondent Coram : NITIN W. SAMBRE J Date : 7th September 2020 Heard the respective counsel The petitioner takes an exception to the order dated 28th January 2020 passed by the Family Court No. 3 Bandra Mumbai below Exhibit 15 an application for grant of interim maintenance in Petition No. C 618 The facts necessary for deciding the present petition are as 1 wpst 4054.2020.doc The petitioner was blessed with two sons. Late Bhupinder who was married to respondent no. 1 on 12th December 2004 and died on 21st May 2015. Respondent no.2 son was born out of the above marriage. The mother of respondent no.1 died in the year 2016 whereas her father died in February 2017. It is her case that she has no independent source of earning and she and her son are completely dependent on the earnings of the petitioner. It is in this background respondent no.1 preferred the proceedings under Sections 19 and 22 of Hindu Adoption and Maintenance Act 1956with a prayer for grant of maintenance of Rs.1 50 000 per month to petitioner no.1 and Rs.50 000 to petitioner no.2 to the petition before the Family Court The claim was resisted by the present petitioner original respondent thereby alleging that apart from the fact that the present 1 wpst 4054.2020.doc petitioner is paying maintenance to the respondents and has provided accommodation an expenses of Rs.90 000 are incurred by the petitioner so as to meet day to day requirement educational expenses etc.. The break up to that effect has been given in the reply filed to the main petition before the Family Court Since the respondent no.1 claimed to have neglected to maintain by the petitioner the application Exhibit 15 seeking interim maintenance under Section 19 of the Act came to be moved claiming Rs.1 00 000 per month for respondent no.1 and Rs.50 000 per month to respondent no.2 son Vide impugned order dated 28th January 2020 the Family Court has allowed the prayer partly and granted maintenance of Rs.40 000 per month to respondent no.1 whereas Rs.30 000 per month to respondent no.2. As such this petition Learned counsel for the petitioner original respondent would invite attention of this Court to the provisions of Section 19 1 wpst 4054.2020.doc Proviso to Sub Section(2) of the Act so as to claim that the maintenance ought to have been claimed by the respondent no.1 only after demonstrating that she was unable to maintain herself from her own earnings or from the estate of her parents Shri. Joshi learned counsel appearing for the Petitioner would urge that the aforesaid legal provision is ignored by the Court below while allowing the application and that being so the order goes contrary to the provisions of Section 19 of the Act Further submission is even if presuming that the respondents are entitled for maintenance still fact remains that exorbitant maintenance is awarded as the Court below have failed to consider the liability of the petitioner to maintain himself who was a cancer patient his aged wife his other son and his family. Shri. Joshi would also invite attention of this Court to the fact that the respondents are provided with accommodation in the house owned by the petitioner. According to Shri. Joshi the petitioner 1 wpst 4054.2020.doc is incurring expenses about Rs.95 000 per month on the respondents Shri. Joshi then would urge that the award of maintenance is as such completely disproportionate to the known source of income of the petitioner. According to the learned counsel for the petitioner repayment of bank loan is already overdue and that being so the order impugned is liable to be quashed and set aside By inviting attention of this Court on the judgement as reported in BCRVolume 5 page 441 in the case of Vimlaben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patil & Ors. Shri. Joshi has tried to substantiate his submissions that the respondent no.1 has not discharged his initial burden contemplated under the proviso to Section 19 of the Act and further claimed that the maintenance ought not to have been awarded Per contra Shri. Bajaj learned counsel for the respondent supported the impugned order and and would urge that the order is based on the admissions as are traced in the written statement as to income of the petitioner. Shri. Bajaj would also rely on the Income tax return submitted by the petitioner for the assessment year 2018 2019 1 wpst 4054.2020.doc Considered rival submissions At the outset it is required to be submitted that the plain reading of Section 19 of the Act contemplates that the respondents have every right to claim the maintenance after the death of husband from the estate inherited by her father in law i.e. the present petitioner That proviso to Sub Sectionof Section 19 contemplates that the respondent has to demonstrate that she on her is unable to maintain herself. It is in this eventuality she can claim maintenance from the estate of her husband still fact remains that the said burden can be discharged by respondent no.1 at an appropriate stage. The object with which the provision is made in the statute book for grant of interim maintenance cannot be ignored. At this stage what was required to be appreciated by the Court below and rightly so appreciated by the Family Court in the impugned order is whether there was neglect to maintain and whether the respondents are entitled for maintenance from the petitioner in view of Section 19 of the Act. 1 wpst 4054.2020.doc The Family Court has relied on the statement made in the written statement by the present petitioner that the income per month of the petitioner from the HUF property is Rs.1 28 000 Apart from above the Court cannot be oblivious to the fact that the income of the petitioner for the assessment year 2018 2019 as was reflected in the income tax return was Rs 74 87 007 That being so it cannot be at this stage presumed that the maintenance is disproportionate to the legal source of income of the petitioner. Rather the maintenance awarded to the respondent no.1 to the tune of Rs.40 000 and to respondent no.2 grandson of Rs.30 000 appears to be justified considering the income drawn by the Petitioner as reflected in the hereinabove Apart from above this Court cannot see any material illegalities so as to infer that the order impugned runs contrary to the scheme of Section 19 of the Act. That being so no case for interference is made out. Petition fails dismissed 1 wpst 4054.2020.doc Needless to clarify that the observations made hereinabove are confined to the extent of adjudicating the rights of respondent no.1 for grant of interim maintenance. While deciding final proceedings the Court shall not be influenced by the findings recorded hereinabove as same be decided on its own merits. ( NITIN W. SAMBRE J.

No compensation on insurance policy in case of intoxication: Supreme Court of India

The Provisos of insurance policy specifically disclose that compensation will not be paid in respect of injury of the injured if he is under the influence of intoxicating liquor and the injured was not entitled to compensation since on facts it was proved that he was intoxicated and that was due to intoxication. This judgment was passed by the Hon’ble Justice MOHAN M. SHANTANAGOUDAR of the Supreme Court in the matter of NARBADA DEVI AND ORS.  Vs. H.P. STATE FOREST CORPORATION & ANR. [CIVIL APPEAL NO. 6379 OF 2010]. This appeal arose out of order and judgement of the National Consumer Disputes Redressal Commission, New Delhi allowing Revision Petition filed by the Respondent, against the order dated 9.10.2006   passed by the   Himachal   Pradesh   State   Consumer Disputes   Redressal   Commission,   Shimla   (hereinafter   ‘State Commission’) in Appeal No. 281/2004.  The factual data revealed that the deceased was returning from Banal   Depot to   Thundal along with one Chandermohan, the forest guard, on a stormy night where he was trapped and later recovered in a hapless condition around 9:00   AM, smelling of alcohol.  After being recovered, he was given a hot water bath but he could not survive. Later the forest guard filed an FIR and the respondent issued a certificate that stated that the deceased died on duty during his working tenure.  The post mortem reported asphyxia because of a choked food pipe due to intoxication. The deceased was enrolled in the Janta personal accident insurance scheme hence the decedents of the deceased were liable for the compensation from the scheme but the insurance company rejected to settle the compensation. The court relied on the definition of asphyxia in the Medicolegal Manual by Dr K.S. Narayan Reddy states that “Asphyxia is a condition caused by   interference   with   respiration,   or   due   to   lack   of   oxygen   in respired due to which  the  organs  and tissues are deprived  of oxygen   (together   with the failure   to   eliminate   CO2),   causing unconsciousness   or   death.”   The court held that “The Insurance Policy only covers ‘bodily injury resulting solely and directly from an accident caused by outward, violent and visible means (including sterilization risks)’. Since there is no evidence to show that the deceased met with an accident and the Post­Mortem Report also shows that no bodily injury was caused to the deceased, the claim is not payable under the said Policy.” The court pointed   out   that   Proviso   4   to   the Insurance   Policy   contains   an   exclusion   clause and stated that “whereby   it   is clearly   provided   that   if   the   insured   dies   whilst   under   the influence of intoxicating liquor or drug, claim under the Policy will not be payable.” The appellants’ claim was not maintainable on the grounds stating that “The facts of the present case show that on the night before his death, the deceased was heavily drunk, and had gone and slept outside on a cold, rainy October night in Chopal. In case of excessive drinking and cold weather, asphyxia is the final medical complication”.

This appeal arises out of order and judgement of the ‘Impugned Order’) allowing Revision Petition No. 331 of 2007 filed by the Respondent No.1 herein Himachal Pradesh State 9.10.2006 passed by the Himachal Pradesh State Consumer Disputes Redressal Commission Shimla was an employee of Respondent No.1­ Office Chopal. On the night of 7.10.1997 the deceased was coming from Banal Depot to Thundal along with one Chandermohan the forest guard. On the said night there was heavy rain and storm therefore the deceased might have been 9:00 AM smelling of alcohol. When the Chowkidar Mohan Singh saw the deceased he called the Forest Sub­Inspector and there he was given hot water bath and massaged. However he subsequently died at about 1:00 PM on 8.10.1997. Thereafter on 9.10.1997 at about 2:30 P.M. The Assistant Manager of The Post­Mortem Report dated 10.10.1997 stated that no that the cause of death was probably asphyxia resulting from regurgitation of food articles into larynx and trachea after of urine which was calculated as per the chemical examiner’s report. Expert opinion dated 6.07.1998 was obtained from one Dr. D.J. Das Gupta M.D. & Former Professor & Head of Department of Medicine and Principal Indira Gandhi Medical College Shimla which stated that the cause of death is due to alcohol ingestion and regurgitation of food into larynx. Medical Professor & Head of Department of Medicine Indira Gandhi Medical College Shimla. As per his opinion dated 17.08.2002 Under the Janta Personal Accident Insurance Scheme hereinafter ‘Insurance Scheme’) Respondent No.1­HPSFC had taken the Janta Personal Accident Insurance Policy dated from Respondent No.2­The New India Assurance Company Scheme there was an insurance coverage of Rs. 1 lakh for all employees who were willing to opt for the said Scheme Respondent No.1­HPSFC had been depositing premium for its employees including the deceased under the Insurance Policy which was effective during the period from 22.01.1997 to 21.01.1998. Consequently the legal heirs of the deceased i.e. Insurance Company under the Insurance Policy however the Insurance Company repudiated the claim vide letter dated claim the Appellants herein filed a consumer complaint under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service on of Rs. 2 lakhs along with interest and cost. By order dated had wrongly repudiated the claim and was liable to make payment and indemnification of the insured amount of Rs. 2 The Forum observed that the only issue to be considered is Respondent No.1­HPSFC would be liable for compensating the Appellants and in case of the latter the Insurance Company would be liable. The District Forum then considered the definition of asphyxia in the Medicolegal Manual by Dr. K.S by interference with respiration or due to lack of oxygen in respired due to which the organs and tissues are deprived of oxygen causing unconsciousness or death.” The District Forum therefore but accidental. The District Forum further observed that the quantity of alcohol found in the deceased’s body was not sufficient to cause death in the normal course and that the opinion dated 6.07.1998 given by Dr. D.J. Das Gupta seeking compensation under the 1923 Act and the Commissioner had passed award dated 28.08.2003 directing Respondent No.1­ HPSFC to pay a sum of Rs. 1 52 887.50 ­ along with interest the said award before the Hon’ble High Court of Himachal terms and conditions of the Insurance Policy were never communicated to the insured persons nor were they supplied that the Insurance Policy was applicable only in the case of accidental death and therefore the Respondent No.1­HPSFC is 8.1 The learned counsel for the Appellants further contended that the Insurance Scheme is in addition to the Appellants’ entitlement to compensation under the 1923 Act and while all employees of Respondent No.1­HPSFC are entitled to compensation under the 1923 Act compensation under the 8.2 Lastly the Appellants have contended that as per the law not applicable Respondent No.1­HPSFC may be held liable for paying compensation to the Appellants herein. Further that would be liable. However the Respondent No.1­HPSFC had no not arise out of accident neither the Insurance Company nor was not accidental however the State Commission and the liable and otherwise Respondent No.1­HPSFC would be liable the Consumer Protection Act excludes from its ambit services rendered under the contract of employment between employer and employee and hence the complaint was not maintainable under the Consumer Protection Act qua the Respondent No.1­ as it was only a mediator for depositing the premium of 10. Learned counsel for the Respondent No. 2­Insurance Company contended that the deceased died a natural death shows that no bodily injury was caused to the deceased the 10.1 It was additionally pointed out that Proviso 4 to the Insurance Policy contains an exclusion clause whereby it is clearly provided that if the insured dies whilst under the influence of intoxicating liquor or drug claim under the Policy his death the deceased was heavily drunk and had gone and excessive drinking and cold weather asphyxia is the final medical complication. Therefore the learned counsel for the Proviso 4. It was further pointed out that there is neither any direct evidence nor any bodily injury to prove the Appellants’ the expert opinions of Dr. D.J. Das Gupta dated 6.07.1998 the deceased was in an intoxicated state at the time of death Hence the learned counsel for the Insurance Company findings of the three consumer forums. In the facts and with the impugned order dated 24.04.2009 passed by the From a bare perusal of the Insurance Policy as quoted supra it is clear that only if the insured sustains any bodily injury resulting solely and directly from accident caused by outward violent and visible means the Insurance Company Insurance Policy only accidental death of the insured shall be indemnified. As noted above the Post­Mortem Report clearly indicates that there were no injuries found on the body of the in the Post­Mortem Report is asphyxiation caused by alcohol consumption and regurgitation of food into larynx. As such we find it difficult to conclude that the deceased’s death was State Commission have rightly held that the deceased’s death 13. As for the liability of the Respondent No.1­HPSFC we are of a mediator for depositing the premium of employees with the Insurance Company and had no liability as such under the Insurance Policy. The liability of Respondent No.1­HPSFC if any would be under the 1923 Act proceedings under which have already been settled by the Commissioner as recorded in the 14. At this stage we consider it pertinent to deal with the ought to be directed to pay compensation in place of the Insurance Company on the basis of the judgment in Jamuna Devi is peculiar to the to show that the deceased in the present case was given to Therefore the directions issued in Jamuna Devi would not be 16. At this juncture we may also observe that in the communication dated 23.01.1996 addressed by the Financial Commissioner­cum­Secretary (mentioned supra) it was type of accident including road natural calamities like landslides floods drowning tree­falling avalanches etc be covered in the broader terms of the Insurance Scheme as 17. Be that as it may the Provisos of insurance policy Provided always that the company shall not be injury or disablement of the insured from whilst under the influence of intoxicating liquor or drug or by insanity (d The aforesaid Proviso 4 makes it amply clear that the In light of the aforementioned observations we decline to interfere with the Impugned Order passed by the National

Detention at Deportation Centre under Foreigners Act after acquittal is grossly unlawful: Delhi High Court

In the purview of habeas corpus, the Delhi High Court in the case of Ruma Bibi v State & Ors [W.P.(CRL) 902/2020] held that any detention at deportation centers construed under the Foreigners Act after the acquittal of the accused shall be regarded as unlawful. The writ petition was filed before the bench comprising Siddharth Mridul J. and Anup Jairam Bhambhani J. The immediate facts are that Asif Hossain was apprehended from New Delhi Railway Station on 13.12.2012 under sections 419/420/468/471/120B of IPC, sections 3/9 of the Official Secrets Act, 1923 and sections 14A and 14B of the Foreigners Act 1946. Upon trial, Asif Hossain was convicted under section 3 of the Official Secrets Act, 1923 and section 474 IPC vidé judgment dated 28.10.2016. Further vidé order dated 09.11.2016, he was sentenced to undergo incarceration for a period of 09 years for the offence under section 3 of Official Secrets Act, 1923 and for 4 years along with a fine of Rs.10,000/-, with default imprisonment of 09 months for the offence under section 474 IPC. However, Asif Hossain was given the benefit of doubt for the commission of offences u/s 419, 466 IPC and section 14A and 14B of the Foreigners Act 1946 and was accordingly acquitted qua those offences. Despite the acquittal, the petitioner’s husband was detained at the ‘Sewa Sadan Deportation Centre’ Narela, Lampur Village, Delhi, is without any justification and contrary to the relevant provisions of the Foreigners Act. It was contended that although proceedings under section 9 of the Foreigners Act, to determine whether Asif Hossain is or is not a foreigner are under contemplation; but the same have yet to be initiated against Asif Hossain, therefore the detention was not contrary. However, the Court observed that “Asif Hossain has already undergone the entire sentence awarded to him by the learned trial court, as modified by this court pursuant to his initial detention on 13.12.2012. It is further observed that the order acquitting Asif Hossain for the commission of offenses under sections 14A and 14B of the Foreigners Act has since attained finality as the same has not been impugned by the official respondents. In other words, the official respondents have been unable to establish that Asif Hossain is a foreign national. There is also no quarrel with the factual position that Asif Hossain is not wanted in any other case or that he has other criminal antecedents.”

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(CRL) 902 2020 RUMA BIBI Date of decision: 08th April 2021 Through: Mr. Ajay Verma with Ms. Mehak Nakraand Ms. Aakanksha Bansal Advocates. Petitioner STATE & ORS Through: Mr. Dhruv Respondents Pande Advocate Jagdish Special alongwith S.I. Branch. Mr. Dayan Krishnan Advocate as Amicus Curiae with Ms. Manvi Priya Ms. Aakashi Lodha Mr. and Ms. Sanjeevi Sukrit Seth Seshadri Advocates. HON BLE MR. JUSTICE SIDDHARTH MRIDUL HON BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI J U D G M E N T SIDDHARTH MRIDUL J.The present habeas corpus petition has been instituted by Ruma Bibi the wife of Asif Hossain essentially praying for a direction to the official respondents to produce the latter before this court and with a further prayer to order his release from illegal detention. Briefly stated the facts that are necessary for deciding the present proceedings are that Asif Hossain was apprehended from New Delhi Railway Station on 13.12.2012 in connection with FIR No.36 2012 W.P.No. 902 2020 419 420 468 471 120B IPC sections 3 9 of the Official Secrets Act 1923 and sections 14A and 14B of the Foreigners Act 1946. Upon trial Asif Hossain was convicted under section 3 of the Official Secrets Act 1923 and section 474 IPC vidé judgment dated 28.10.2016. Further vidé order dated 09.11.2016 Asif Hossain was sentenced to undergo incarceration for a period of 09 years for the offence under section 3 of Official Secrets Act 1923 and for 04 years alongwith fine of Rs.10 000 with default imprisonment of 09 months for the offence under section 474 IPC. However Asif Hossain was given benefit of doubt for the commission of offences u s 419 466 IPC and section 14A and 14B of the Foreigners Act 1946 and was accordingly acquitted qua those offences. Aggrieved by the aforesaid judgment Asif Hossain preferred an appeal bearing Crl. A. No.428 2017 before a learned Single Judge of this court. Vidé order dated 07.11.2019 whilst upholding the order of conviction as rendered by the trial court the learned single Judge modified the impugned order to the extent that the sentences imposed on Asif Hossain under section 3 of the Official Secrets Act 1973 and section 474 IPC were directed to run concurrently instead of consecutively as directed by the trial court. Upon duly serving the entire sentence in terms of aforesaid judgment dated 07.11.2019 Asif Hossain was released from Central Jail No.14 Mandoli Prison Complex Delhi but was sent by the State to undergo detention at the ‘Sewa Sadan Deportation Centre’ Narela Lampur Village Delhi for the purpose of awaiting deportation. W.P.No. 902 2020 5. Mr. Dayan Krishnan learned senior counsel who was appointed as Amicus Curiae to assist this court in the present matter invites our attention to judgment dated 28.10.2016 rendered by the learned trial court to urge that prosecution was unable to establish beyond reasonable doubt that Asif Hossain was guilty of commission of offences under sections 14A and 14B of the Foreigners Act 1946 ‘Foreigners Act’ for short) and consequentially acquitted him inter alia for the said offences. It is the learned Amicus’s submission that having been acquitted for the commission of offences under sections 14A and 14B of the Foreigners Act which acquittal has been upheld by the learned Single Judge of this court vidé order dated 07.11.2019 in Crl. A. No.428 2017 the further detention of Asif Hossain at the ‘Sewa Sadan Deportation Centre’ Narela Lampur Village Delhi is without any justification and contrary to the relevant provisions of the Foreigners Act. 6. Mr. Dhruv Pande learned counsel appearing on behalf of official respondents however submits that although proceedings under section 9 of the Foreigners Act to determine whether Asif Hossain is or is not a foreigner are under contemplation but the same have yet to be initiated against Asif Hossain. In the present case this court observes that Asif Hossain has already undergone the entire sentence awarded to him by the learned trial court as modified by this court pursuant to his initial detention on 13.12.2012. It is further observed that the order acquitting Asif Hossain for commission of offences under sections 14A and 14B of the Foreigners Act has since attained finality as the same has not been W.P.No. 902 2020 impugned by the official respondents. In other words the official respondents have been unable to establish that Asif Hossain is a foreign national. There is also no quarrel with the factual position that Asif Hossain is not wanted in any other case or that he has other criminal antecedents. At this juncture it is also pertinent to observe that Asif Hossain holds a valid Indian Passport bearing No.J9614711 issued by the competent authority in Kolkata and also holds a valid voter ID card bearing No.XXR1212604 issued by the Election Commission of India. Lastly it is evident from the record that prior to remanding him to ‘Sewa Sadan Deportation Centre’ Narela Lampur Village Delhi the official respondents did not issue any show cause notice to Asif Hossain nor did they afford him an opportunity of being heard in that regard. In view of the facts and circumstances elaborated hereinabove it can clearly and unequivocally be held that Asif Hossain is being detained by the official respondents without any legal cause occasion or justification and in gross violation of the procedure established by In the circumstances the present habeas corpus petition is allowed and Asif Hossain is directed to be released from ‘Sewa Sadan Deportation Centre’ Narela Lampur Village Delhi forthwith. However in view of the submissions made on behalf of official respondents Asif Hossain son of Badar Hossain resident of Akra Krishna Nagar Purba Para Akra Station Road P.S.: Maheshtala District South 24 Parganas Batanagar West Bengalis directed to W.P.No. 902 2020 participate in any proceedings that may be instituted by the official respondents under the Foreigners Act or otherwise in accordance with law if and when required. 11. The process and or notice to be issued by the official respondents in the event they proceed to take any further action against Asif Hossain shall be deemed to have been served if received at his residential address recorded hereinabove. The proof of residential address stated before this court shall be furnished by Asif Hossain to the SHO of the concerned police station forthwith. He also undertakes to appear before the competent authority as and when a show cause notice is received by him from the official respondents in accordance with law. 12. No further directions are called for in the present matter. 13. With the above directions the habeas corpus petition is disposed of. 14. However the matter be listed for consideration of the report filed by the Judicial Officer qua the conditions prevalent at Lampur Detention Centre and for further directions to be issued qua the lack of hygiene and proper living conditions at the said centre on 21.05.2021. SIDDHARTH MRIDUL J ANUP JAIRAM BHAMBHANI J APRIL 08 2021 Click here to check corrigendum if any W.P.No. 902 2020

Pre-Arrest Bail denied and Interim Order passed to protect stood cleared on establishing up the reason for Assault and Dowry Demand: High Court Of Patna

The applicant asserted torment, attack, and endowment request were denied the pre-capture bail. Additionally, the interim protection of him was cleared by the Court orders. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Abhay Kumar v. The State of Bihar[Criminal Miscellaneous No. 78092 of 2019]. Facts of the case were that the petitioner was apprehended arrest regarding Case, established under Sections 498A, 323, 324, 325, and 307/34 of the Indian Penal Code. The applicant is the spouse of the witness. He alongside the other relatives were blamed for the attack, torment, and settlement interest of money of Rs. 5 Lakhs and drove her out of her wedding home. The Petitioner’s learned guidance presented that it was the witness who wasn’t intrigued to reside in the applicant’s home as she generally continued to go to her parent’s home. It was presented that in the FIR, it has been expressed that Rs. 18 lakhs was spent on the marriage, which is bogus for the explanation that the candidate is in the occupation in a private firm and, consequently, there was no event for the group of the witness spending such a lot of cash on him in the marriage. The learned guidance presented that the solicitor has additionally documented a case charging that the relatives of the source had gone to his place and had attacked the detainees and had likewise persuasively taken his mom to the town of the witness where her hair was trimmed. Learned guidance presented that the applicant from the beginning has been prepared to keep the witness however she isn’t collaborating because of the negative impact of her family members. The Additional Public Prosecutor battled that the solicitor was making hindrances in the marital relationship to make it hard for the witness to remain at the wedding home. Learned insight for the witness presented that the solicitor is an exceptionally smart individual and right from the start, he has been making issues and circumstances so the source might leave the marital home. It was presented that after the attack, the witness must be conceded to PMCH where she was treated for different wounds brought about by torment and attack by the candidate and his relatives. Learned guidance presented that the lead of the candidate is obvious evidence that he is some way or another attempting to try not to assume liability for the source and keep her as his significant other in the marital home. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds that repeatedly it has given indulgence and chance to the petitioner to live up to his commitment that he is ready to keep the informant with him for which exercise was directed many times and every time, the Court finds that due to some shortcoming on the side of the petitioner, such exercise failed and even with regard to the last exercise, the informant has brought photographs on record showing that she is waiting outside the locked gate of the house where the petitioner was to take her but he did not turn up.” After taking the entire outline of the matter the applicant was not conceded the pre-capture bail. Interval security was allowed to the solicitor before was cleared.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 780919 Arising Out of PS. Case No. 331 Year 2019 Thana RAHUI District Nalanda Abhay Kumar aged about 34 years Male Son of Suresh Prasad Resident of Shahpur PS Rahui District Nalanda The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State For the Informant Mr. Satya Ranjan Sinha Advocate Ms. Gulnar Begum APP Mr. Hansraj Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 10 08 2021 The matter has been heard via video conferencing. 2. Heard Mr. Satya Ranjan Sinha learned counsel for the petitioner Ms. Gulnar Begum learned Additional Public Prosecutor for the State and Mr. Hansraj learned counsel for the informant 3. The petitioner apprehends arrest in connection with Rahui PS Case No. 331 of 2019 dated 27.08.2019 instituted under Sections 498A 323 324 325 and 307 34 of the Indian 4. The petitioner who is the husband of the informant along with his other family members is accused of assault torture Patna High Court CR. MISC. No.780919 dt.10 08 2021 and demand of dowry of Rs. 5 lakhs and further of driving her out of the matrimonial home 5. Learned counsel for the petitioner submitted that it is the informant who is not wanting to live with the petitioner as she keeps going to her parents’ house. It was submitted that in the FIR it has been stated that Rs. 18 lakhs was spent on the marriage which is false for the reason that the petitioner is in job in a private firm and thus there was no occasion for the family of the informant spending so much money on him in the marriage Learned counsel submitted that prior to the filing of the present case the petitioner had filed Informatory Petition No. 1592 of 2019 before the Chief Judicial Magistrate Nalanda at Biharsharif on 18.07.2019 apprehending false implication. Learned counsel submitted that the petitioner has also filed Rahui PS Case No. 330 of 2019 on 27.08.2019 alleging that a day prior at night the family members of the informant had come to his place and had assaulted the inmates and had also forcibly taken his mother to the village of the informant where her hair was cut. Learned counsel submitted that the petitioner all along has been ready to keep the informant but she is not cooperating due to negative influence of Patna High Court CR. MISC. No.780919 dt.10 08 2021 6. Learned APP submitted that as per the allegation the petitioner is creating obstacle in the matrimonial relationship and creating a situation where the informant is unable to live in the 7. Learned counsel for the informant submitted that the petitioner is a very shrewd person and right from the beginning he has been creating issues and situations so that the informant may leave the matrimonial home. It was submitted that after assault the informant had to be admitted to PMCH where she was treated for various injuries caused by torture and assault by the petitioner and his family members. Learned counsel submitted that in the past several attempts were made by this Court by directing the petitioner to take the informant with him to the matrimonial home but initially he took her to a boys hostel where there was a common toilet shared with other male inmates and thereafter when the turn came to take her to a separate house the same was without any provisions and even as per the latest exercise the petitioner had come to the house of the informant on 16.07.2021 and had asked her to follow her as he was on a scooty but on the way he disappeared and the informant kept waiting at his place which was locked and he did not turn up and even the role of the police has not been proper for which she has also submitted a Patna High Court CR. MISC. No.780919 dt.10 08 2021 petition before the Superintendent of Police Nalanda. Learned counsel submitted that the conduct of the petitioner is clear proof that he is somehow trying to avoid taking responsibility of the informant and keep her as his wife in the matrimonial home 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds that repeatedly it has given indulgence and chance to the petitioner to live up to his commitment that he is ready to keep the informant with him for which exercise was directed many times and every time the Court finds that due to some shortcoming on the side of the petitioner such exercise failed and even with regard to the last exercise the informant has brought photographs on record showing that she is waiting outside the locked gate of the house where the petitioner was to take her but he did not turn up Further the Court finds that from the allegations and materials on record and what has come during the course of hearing it cannot be said that the allegations made are frivolous and fit to be dismissed at the threshold. Further from the conduct of the petitioner before the Court where despite over indulgence given to him the exercise which was directed by the Court that too at the behest of the petitioner has failed primarily because of the conduct of the petitioner. Thus taking an overall view in the Patna High Court CR. MISC. No.780919 dt.10 08 2021 matter the Court is not inclined to grant pre arrest bail to the 9. Accordingly the petition stands dismissed 10. Interim protection granted to the petitioner under order dated 20.07.2020 stands vacated 11. However in view of submission of learned counsel for the petitioner it is observed that if the petitioner appears before the Court below and prays for bail the same shall be considered on its own merits in accordance with law without being prejudiced by the present order 12. Coming to the other issue where there is serious allegation of the role of the SHO of Silao PS for which the father of the informant has filed an application before the Superintendent of Police Nalanda on 31.07.2021 copy of which is Annexure R 1 of the 6th supplementary counter affidavit filed on behalf of the informant let the Superintendent of Police Nalanda file a detail report on the same. It is made clear that if the Court finds that the Superintendent of Police Nalanda has not taken serious note of the allegations made and has not conducted a thorough and proper inquiry into the matter the Court may take serious judicial note and appropriate action in the matter for which the Superintendent of Police Nalanda shall also have to take responsibility Patna High Court CR. MISC. No.780919 dt.10 08 2021 13. Such report be submitted to the Court through the learned APP who shall file it latest by 31st August 2021 and the matter be listed on 4th September 2021 among the top five cases only for the purpose of considering the report of the Superintendent of Police Nalanda. 14. Learned APP shall communicate the order to the Superintendent of Police Nalanda (Ahsanuddin Amanullah J

Forum Shopping clearly amounts to criminal contempt: Karnataka High Court

Forum shopping is a practice where litigants file their legal case in a court which they believe is probable of providing a favourable verdict. In a broader context, it is a practice of frequently seeking a dispute resolution forum for a complaint, concern or action, until one is found. Such kind of forum shopping is a clear violation of law and amounts to criminal contempt. A single judge bench comprising of Justice PS Dinesh Kumar, while adjudicating the matter in India Awake for Transparency v. Union of India & Ors, [WRIT PETITION No.172 OF 2021 (GM-RES)]; dealt with the issue of validity of forum shopping in India. The respondent had raised a preliminary objection with regard to maintainability of writ petitions. In substance, the preliminary objection is, petitioner has filed a public interest litigation with a prayer inter alia for issuance of a writ of mandamus and to direct respondents No.1 to 10 therein to constitute a multi-disciplinary investigation team to investigate and prosecute Mr. A.H. Premji and his associates for the offences alleged to have been committed by them, set out in petitioner’s representations. The Ministry of Corporate Affairs against whom a direction is sought in this writ petition was arrayed as respondent No. 2 in the said PIL. Petitioner has unconditionally withdrawn the PIL. Thereafter, it has filed five separate writ petitions against various statutory authorities. The respondent has submitted that In view of unconditional withdrawal of the PIL, this petition is not maintainable and liable to be dismissed. The respondent has also submitted that petitioner has also filed a private complaint against the Secretary, Ministry of Corporate Affairs with a prayer to register an ‘Information Report’ on the basis of petitioner’s three letters mentioned therein and to direct an investigation. He submitted that in the said private complaint, list of persons allegedly involved in the commission of offences have been mentioned in the schedule and they are not shown as accused in the cause-title. He argued that such a private complaint is alien to the standard practice because, the accused are required to be described in the cause-title. The response by the petitioner was that the relief sought in the PIL and in this writ petition are not one and the same. If a petitioner seeks different relief on the same cause of action, the doctrine of res judicata does not apply.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF FEBRUARY 2021 THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR WRIT PETITION No.172 OF 2021BETWEEN : INDIA AWAKE FOR TRANSPARENCY REP. BY P. SADANAND AUTHORISED SIGNATORY SHRISTHI CRESCENDO 24 DESIKA ROAD MYLAPORE CHENNAI 600 004 ... PETITIONER UNION OF INDIA THROUGH ITS SECRETARY MINISTRY OF CORPORATE AFFAIRS SHASTRI BHAWAN NEW DELHI 110 001 BY SHRI. R. SUBRAMANIAN ADVOCATE) THROUGH VIDEO CONFERENCE] AND : 1. 3. MRS. YASEEM AZIM PREMJI MR. AZIM H. PREMJI SURVEY NO.574 DODDAKANNELLI VILLAGE SARJAPUR ROAD BENGALURU560 035 SURVEY NO.574 DODDAKANNELLI VILLAGE SARJAPUR ROAD BENGALURU560 035 MR. PAGALTHIVARTHI SRINIVASAN NO.524 16TH CROSS INDIRA NAGAR II STAGE BENGALURU 560 038 5. M S. HASHAM INVESTMENT BY SHRI. S. GANESH SENIOR ADVOCATE AND SHRI. C.V. NAGESH SENIOR ADVOCATE FOR SHRI. SANDEEP HUILGOL ADVOCATE FOR R5) AND TRADING COMPANY PVT LTD REP. BY MR. AZIM H PREMJI NO.134 NEXT TO WIPRO CORPORATE OFFICE SARAJAPUR ROAD BENGALURU 560 035 ... RESPONDENTS . . . THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R 1 TO BASED ON THE INFORMATION DTD.14.03.2017 30.01.2020 AND 09.11.2020 FURNISHED BY THE PETITIONER UNDER ANNEXURE Y AND BASED THEREON DIRECT INVESTIGATION OF THE R 5 UNDER SECTION 212 OF THE COMPANIES ACT 2013 AND ETC. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 29.01.2021 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY THE COURT PRONOUNCED THE FOLLOWING: ORDER This is third petition in succession filed by India Awake for Transparency against different authorities to initiate action in the matter of acquisition of shares and amalgamation of Company. In all the cases Shri. Ganesh learned Senior Advocate appearing for private respondent has raised a preliminary objection with regard to maintainability of writ petitions. In substance the preliminary objection is petitioner W.P.No.3635 2020 with a prayer inter alia for issuance of a writ of mandamus and to direct respondents No.1 to 10 therein to constitute a multi disciplinary investigation team to investigate and prosecute Mr.A.H.Premjiand his associates for the offences alleged to have been committed by them set out in petitioner s representations submitted to respondents No.1 to 6 therein. The Ministry of Corporate Affairs against whom a direction is sought in this writ petition was arrayed as respondent No. 2 in the said PIL. Petitioner has unconditionally withdrawn the PIL. Thereafter it has filed five separate writ petitions against various statutory authorities. W.P. No. 13838 2020 is against SEBI W.P. No.12073 2020 is against Enforcement Directorate W.P. No.11482 2020 is against Reserve Bank of India based on the representations dated January 30 2020 and February 3 2020 submitted by the petitioner. In this writ petition petitioner has prayed for a direction against respondent No.1 to act on the basis of information given by him on March 14 2017 January 30 2020 November 9 2020. Shri. C.V. Nagesh learned Senior Advocate for respondent No.5 argued that petitioner has approached Delhi High Court also in WP(C) No. 4905 2017 with a prayer inter alia to direct Department of Financial Services Ministry of Finance Ministry of Corporate Affairs and the RBI to take action on its complaints dated November 1 2016 March 14 2017 and April 28 2017. By its order dated May 29 2017 a Division Bench of Delhi High Court has disposed of the said writ petition with a direction to the Ministry of Finance and the Ministry of Corporate Affairs to examine the complaints. Pursuant thereto Ministry of Corporate Affairs has passed an order dated November 10 2017. Shri. Nagesh further submitted that petitioner has also filed a private complaint against the Secretary Ministry of Corporate Affairs with a prayer to register an Information Report on the basis of petitioner s three letters mentioned therein and to direct an investigation. He submitted that in the said private complaint list of persons allegedly involved in the commission of offences have been mentioned in the schedule and they are not shown as accused in the cause title. He argued that such a private complaint is alien to the standard practice because the accused are required to be described in the cause title. Shri. Nagesh further submitted that petitioner Company is no more in existence pursuant to orders passed by the Regional Director Ministry of Corporate Affairs on August 17 2018 revoking the licence issued to the petitioner Company. Shri. Nagesh further submitted that petitioner has approached Delhi High Court with a prayer for a direction against Ministry of Corporate Affairs to initiate action in respect of three complaints mentioned in the petition. The complaint dated March 14 2017 is common in writ petition filed before the Delhi High Court as also in this writ petition. The complaint dated January 30 2020 is common in the PIL and this writ petition. In reply Shri. Subramanian learned Advocate for petitioner made following submission:  the relief sought in the PIL and in this writ petition are not one and the same if a petitioner seeks different relief on the same cause of action the doctrine of res judicata does not apply  what was under consideration before the Division Bench while hearing the PIL was maintainability of PIL at the instance of the petitioner. Petitioner withdrew the writ petition as a PIL was not maintainable and thereafter filed independent writ petitions against different respondents  the PIL was withdrawn as there was a formal defect which had rendered the writ petition incompetent. Therefore petitioner cannot be barred from agitating his cause in this writ petition. 11. With the above main contentions Shri. Subramanian sought to oppose the preliminary objection. 12. I have carefully considered rival contentions and perused the records. 13. At the outset it is relevant to note that this very Bench has dismissed W.Ps. No.13838 2020 and W.P. No.12073 20201 SCC 5 2M s. Vidya Investment and Trading Company Private Limited 2) M s. Napean Trading and Investment Company Private Limited 3) M s Regal Investment and Trading Company Private Limited with the transferee Company viz M s Hasham Investment and Trading company Private Limited vide CP No.182 to 185 2014as marked by you) and have to state as follows. The equity shareholding of all the three transferor companies are interlinked cross held and that each of the transferor companies owned by the other two transferor companies. M s. Vidya Investment and Trading Company Private Limited is owned by M s. Napean Trading and Investment Company Private Limited and M s Regal Investment and Trading Company Private Limited jointly while M s. Napean Trading and Investment Company Private Limited is owned by M s. Vidya Investment and Trading Company Private Limited and M s Regal Investment and Trading Company Private Limited. Similarly M s Regal Investment and Trading Company Private Limited is owned by M s. Vidya Investment and Trading Company Private Limited and M s. Napean Investment and Trading Company Private Limited each of these companies are registered under Companies Act and therefore are legal persons capable of owning property and enjoy the privileges of a corporate person. Hence it is not correct to say that the transferor companies are ownerless and that the assets of the said companies belong to Union of India. It is further stated that the Companies Act allows a company to be incorporated with the subscription to the Memorandum by Corporate Entities. There is no stipulation that these shall be natural persons for subscribing to the Memorandum. Accordingly a private company can be incorporated and also owned by the stipulated number of companies registered under the subsisting Company Law. At the time of consideration of the scheme the transferee company was having the following shareholders:a) Azim Premzi: 40 05 010 equity shares b) Yasmeen Premzi: 5010 equity shares The scheme provided for merger of the three transferor companies to M s. Hasham Investment and Trading Company Private Limited which was fully owned by Mr.Azim Premzi and Yasmeen Premzi. This fact was reported by the ROC Bangalore in his report to the Regional Director on 27.08.2014. Thus no private trust was holding any shares of M s.Hasham Investment and Trading Company Private Limited at that point of time. The brief for the ROC in respect of such scheme is to report to Regional Director if the companies under the scheme are facing any complaints inspection investigation and like as well as to provide observations if any on the proposed schemes. In the instance case the scheme is a Vanilla scheme with merger of assets and liabilities of transferor companies to the transferee company without any saving whatsoever. None of the companies involved in the scheme are also not falling any complaints nor any Regulatory actions. Accordingly there is no negative ground or observation whatsoever for the Regional Director to report to the Hon ble Court in the said scheme except to the extent that the transferee company is not NBFC while the transferor companies were NBFC s and were registered with the RBI being the Regulator. The Regional Director had also observed that the transferee company cannot undertake the business of transferor company and hence need to undertake to register with RBI as NBFC company. The Regional Director s report to the Hon ble Court specifically requires submission on NOC from RBI. It also dealt with pointed out the qualifications of Auditors on the balance sheets of transferor companies which were relating to certain non compliance of RBI Regulations applicable for NBFCs thus the Regional Director has carried on due diligence before filing his report on the merger before the Hon ble High Court in response to the notice u s 394A of the Companies Act 1956. It is also observed that the OL Bangalore had caused appointment of Chartered Accountant firm to verify the books and records of the transferor companies before filing his report. The said firm opined that the transferor companies have not conducted their affairs against public interest or against interest of its In the light of the above it may be noted that there were no grounds for the Regional Director either to have made any negative observations before the Hon ble High Court of Karnataka at the time of merger nor are there any tenable grounds to seek annulment revocation of the approved merger."(Sic.) 17. Not being satisfied petitioner has filed a PIL in this Court and withdrawn unconditionally. Thereafter he has filed five separate writ petitions against different authorities. 18. Shri. Subramanian s specific contention is relief sought in this writ petition is not the same as in the PIL before this Court. Prayers in clauses (b) (d) andare not sought in the PIL. In prayer clause petitioner has sought for a direction against the Ministry of Corporate Affairs to authorize petitioner under Section 439(2) of the Companies Act 2013 to prosecute respondents No. 2 to 5. 19. But to a pointed question by this Court as to when the alleged offences have taken place Shri. Subramanian replied that they have taken place between 2010 and 2016 17. 20. Prayer Clause in this writ petition is for a mandamus against Ministry of Corporate Affairs to act on the information in its representation complaint dated March 14 2017 January 30 2020 and November 9 2020 furnished by the In paragraph No.1 of its complaint dated March 14 2017 petitioner has stated that three Companies namely Vidya Investment and Trading Company Pvt. Ltd. Regal Investment and Trading Company Pvt. Ltd. and Napean Trading and Investment Company Pvt. Ltd. have net worth in excess of Rs.40 000 Crores even though their Capital was small. In paragraph No.5 of its complaint dated January 30 2020 petitioner has stated that the said three Companies together with 100% owned subsidiaries are worth Rs.50 000 Crores that the three Companies were set out as part of promoter group of Wipro Ltd. and neither Mr. Azim Premji or his family members had any equity in these Companies. In paragraph No.1 of its complaint dated November 9 2020 petitioner has stated that the entities controlled by Mr. Azim Premji including the seven companies named therein have committed various violations under the Companies Act. Out of the said seven Companies three are the very same Companies namely Vidya Investment and Trading Company Pvt. Ltd. Regal Investment and Trading Company Pvt. Ltd. and Napean Trading and Investment Company Pvt. Ltd. In the PIL filed before the Delhi High Court petitioner has prayed for a direction against the Ministry of Finance Ministry of Corporate Affairs and Reserve Bank of India to decide within four weeks that nature of actions required in law to be taken by them in respect of complaints dated November 1 2016 March 14 2017 and April 28 2017. In paragraph No.14 of the said writ petition petitioner has averred that the very same three Companies namely Vidya Investment and Trading Company Pvt. Ltd. Regal Investment and Trading Company Pvt. Ltd. and Napean Trading and Investment Company Pvt. Ltd. registered as non Banking Finance Companies. paragraph No.29 of the said writ petition petitioner has averred that the said three Companies had given large sums of monies to a Private Trust. It is important to note that petitioner s complaint dated March 14 2017 upon which petitioner has relied is common in the PIL filed before the Delhi High Court and this writ In W.P. No.3635 2020 Transparency Vs. Union of India and others) the PIL filed in this Court petitioner has sought directions against the respondents therein based on his representation complaints dated January 30 2020 and February 3 2020. Though the dates of complaint is different the subject matter is again the same i.e. transactions involving three Companies namely Vidya Investment and Trading Company Pvt. Ltd. Regal Investment and Trading Company Pvt. Ltd. and Napean Trading and Investment Company Pvt. Ltd. paragraph No.10 of the writ petition). 27. Thus there remains no doubt that petitioner is indulging in forum shopping on the very same cause of action. As held in Udyami2 this amounts to criminal contempt as the core issue in all these writ petitions is one and the same. In the result this writ petition is not only devoid of merits but an absolute abuse of process of law. Though petitioner was forewarned he chose to argue this writ petition as a stand alone petition wasting the valuable time of this Court to deal with such frivolous cases. Therefore imposition of punitive cost is necessary. In view of the above the preliminary objection raised by Shri. S. Ganesh and Shri. C.V. Nagesh are sustained and this writ petition is dismissed with cost of Rs.10 00 000 payable by petitioner to the Registrar General High Court of Karnataka Bengaluru within four weeks from today. Registry shall report compliance after expiry of four weeks. In view of dismissal of this petition I.A. No.1 2021 does not survive for consideration and the same is disposed of. Sd

Grant of temporary injunction is not to put an end to the litigation, but it is a beginning of the litigation: High Court of Jammu & Kashmir and Ladakh

Supreme Court has made it clear that if the appellate court comes to the conclusion that the discretion exercised by the trial court in refusing to entertain the prayer for temporary injunction is vitiated by an error apparent or perversity and manifest injustice has been done, then interference in such circumstances would warrant. The aforesaid has been relied upon by the High Court of Jammu & Kashmir and Ladakh while deciding the case of Samitra Devi  v. Shree Kumar Kotwal and others [ CM No. 8002/2021] which was decided upon by a single judge bench comprising Justice Tashi Rabstan on 3rd November 2021. The facts of the case are as follows. It was contended in the appeal that the appellant filed a civil original suit for declaration with permanent prohibitory injunction to the effect that the appellant by virtue of document executed by her husband late Krishan Lal and his brothers namely Shree Kumar Kotwal and Om Kumar Kotwal way back in the year 1967 in favour of the appellant, is the absolute owner in continuous peaceful possession and occupation of land bearing Khasra No. 1456. It was contended that along with the main suit the appellant has also filed an application in terms of order 39 Rule 1 & 2 CPC which has been rejected by the Trial court after considering the written statement filed by defendant/respondent on the ground that the same is devoid of merit. It was contended that the case set up by the appellant before the Trial court is that the land is under the cultivating possession of the appellant since 1967 on the basis of the alleged document which is 50 years old and as per section 91 of the Evidence Act the document which is 30 years old need not to be proved and the presumption can be drawn in favour of the genuineness of the document. The court perused the facts and arguments presented. it was of the opinion that “It is necessary to be seen that if the property in dispute is tried to be wasted, damaged, alienated, sold, disposed-off or there are chances of dispossessing the plaintiff from any property, which is in dispute in the suit and/or which may cause injury to the plaintiff concerning any property, which is in dispute in the suit, the Court may grant the temporary injunction. So, grant of temporary injunction is not to put an end to the litigation, but it is a beginning of the litigation and grant of the temporary injunction is aiming at preserving the property, which is in dispute in the suit because if the temporary injunction is refused to be granted, it would pave way for either of the parties before the Court to alienate, sell, dispose of and/or change the nature of the property, which is in dispute in the suit and in such situation the purpose of litigation would be futile and/or endless for both the parties. Thus, as can be professed from the Rule 1 of Order XXXIX, grant of temporary injunction is to prevent damage or wastage to „any property‟ which is in dispute in the suit.”

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on: 28.10.2021 Pronounced on: 03.11.2021 MA No. 17 2021 CM No. 8002 2021 Samitra Devi .Appellant(s) Through: Mr. G.S. Thakur Advocate Shree Kumar Kotwal and others Respondent(s) Through: Mr. R.D. Singh Bandral Advocate Mr. Vikram Rathore Advocate CORAM: HON’BLE MR. JUSTICE TASHI RABSTAN JUDGE Through the medium of this appeal the appellant seeks setting aside of the order dated 17.09.2021 passed by the court of learned Principal District Judge Bhaderwahin a civil suit titled “Samitra Devi vs Shree Kumar Kotwal and others” whereby dismissed the application for grant of stay on the grounds tailored It is contended in the appeal that the appellant filed a civil original suit for declaration with permanent prohibitory injunction to the effect that the appellant by virtue of document executed by her husband late Krishan Lal and his brothers namely Shree Kumar Kotwal and Om Kumar Kotwal way back in the year 1967 in favour of the appellant is the absolute owner in continuous peaceful possession and occupation 2 MA No. 17 2021 of land bearing Khasra No. 1456 measuring 1 kanal 14 marlas situated at revenue village Udrana Tehsil Bhaderwah. It is averred that since the appellant who is in cultivating possession of the suit land the respondent No. 1 filed a petition for partition before the Tehsildar Bhaderwah seeking the relief of partition of the land in different khasra numbers as such the respondents have no right to maintain their claim over the suit land. It is further submitted that the respondent No. 1 husband of the appellant respondent No. 2 husband of respondent No. 3 and father of respondent Nos. 4 to 6 have jointly sold the land falling under Khasra Nos. 351 355 358 362 363 and 367 measuring 37 kanals besides this the respondent No. 1 has also forged the record of joint property falling under Khasra No. 1543 measuring 19 marlas by recording his name in the revenue record and sold land measuring 2 kanals 11 marlas falling under Khasra No. 3229 min without the consent and knowledge of other co sharers. Thus the parties are managing the affairs of their respective shares as such respondent No. 1 has no claim over the suit property. It is contended that along with the main suit the appellant has also filed an application in terms of order 39 Rule 1 & 2 CPC which has been rejected by the Trial court after considering the written statement filed by defendant respondent on the ground that the same is devoid of It is contended that the case set up by the appellant before the Trial court is that the land is under the cultivating possession of the appellant since 1967 on the basis of the alleged document which is 50 3 MA No. 17 2021 years old and as per section 91 of the Evidence Act the document which is 30 years old need not to be proved and the presumption can be drawn in favour of the genuineness of the document. Learned counsel for the respondent has resisted the appeal and urged for its dismissal. Heard the learned counsel for the parties and considered the matter. In the above contextual discourse whereby this Court while deciding the case in hand qua grant or refusal of temporary injunction should delve deeper into the facts and circumstances of the case or not. Answer thereto is in negative. The reason being if this Court discusses the factum of the suit property it would tantamount to deciding the whole case and giving a particular opinion on the subject matter of the case. So better it would be to confine the present discussion to the impugned as appellant is only aggrieved thereof and seek setting aside thereof. The Trial court has after making a discussion of the facts of the case taken into account the requirements and ingredients for grant or refusal of the temporary injunction. The Trial court has rightly discussed the provisions of Order XXXIX Rule 1 of the Code of Civil Procedure as also the three cardinal principles for grant of the temporary injunction viz. prima facie case balance of convenience and irreparable loss. The Supreme Court in case of Skyline Education InstituteLtd vs. S.L. Vaswani AIR 2010 SC 3221 has said that once the court of first instance exercises its discretion to grant or refuse the relief of 4 MA No. 17 2021 temporary injunction the appellate court should be loath to make any interference. However the Supreme Court while saying so has made it clear that if the appellate court comes to the conclusion that the discretion exercised by the trial court in refusing to entertain the prayer for temporary injunction is vitiated by an error apparent or perversity and manifest injustice has been done then interference in such circumstances would warrant. 10. Order XXXIX of the Code of Civil Procedure envisions as to temporary injunctions and interlocutory orders. Rule 1 thereof “1. Cases in which temporary injunction may be granted. —Where in any suit it is proved by affidavit or otherwise— a) that any property in dispute in a suit is in danger of being wasted damaged or alienated by any party to the suit or wrongfully sold in execution of a decree or b) that the defendant threatens or intends to remove or dispose of his property with a view to defrauding his creditors c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit the Court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting damaging alienation sale removal or disposition of the property or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit until the disposal of the suit or until further orders.” 11. Rule 1 of Order XXXIX thus says and envisages that in the event in a suit it is by affidavit or otherwise proved that any property which is in dispute in a suit is in danger of being wasted damaged or alienated 5 MA No. 17 2021 by any party to the suit or wrongfully sold in an execution of a decree or that the defendant threatens or intends to remove or dispose off his property with a view to defrauding his creditors or that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property which is in dispute in the suit the Court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting damaging alienation sale removal or disposition of the property or dispossession of the plaintiff or otherwise causing injury until the disposal of the suit or until further orders. It is necessary to be seen that if the property in dispute is tried to be wasted damaged alienated sold disposed off or there are chances of dispossessing the plaintiff from any property which is in dispute in the suit and or which may cause injury to the plaintiff concerning any property which is in dispute in the suit the Court may grant the temporary injunction. So grant of temporary injunction is not to put an end to the litigation but it is a beginning of the litigation and grant of the temporary injunction is aiming at preserving the property which is in dispute in the suit because if the temporary injunction is refused to be granted it would pave way for either of the parties before the Court to alienate sell dispose of and or change the nature of the property which is in dispute in the suit and in such situation the purpose of litigation would be futile and or endless for both the parties. Thus as can be professed from the Rule 1 of Order XXXIX grant of 6 MA No. 17 2021 temporary injunction is to prevent damage or wastage to „any property‟ which is in dispute in the suit. In the above backdrop it is worthwhile to mention here that the Trial court has rightly exercised the discretion for grant or refusal of the interlocutory order on the basis of material available. Therefore there is no scope to interfere into the impugned order passed by the Trial court. Accordingly this appeal is dismissed. 13. Copy be sent down. Tashi Rabstan) Judge Whether the order is speaking : Yes No Whether the order is reportable: Yes No Pawan Angotra

Punishment for dismissal from duties valid for long unauthorized absence from duty: Delhi High Court

For long unauthorized absence from duty, the punishment of dismissal of a CAPF personnel cannot be held to be per se disproportionate. The above was observed by the Delhi High Court recently, in the matter of Mohd. Rafi v. Deputy Inspector General, CRPF & Ors. & Ors.  [W.P.(C) 9854/2021 & CM APPLs. 30337-338/2021]. The matter was heard on 8th of September 2021, before a division bench, consisting of Justice Manmohan and Justice Navin Chawla. The facts of the case are as follows. The petitioner was a Central Armed Police Force (CAPF) officer. He was an under obligation to return back to the duty after the expiry of the leave, that was sanctioned to him. And in furtherance to the above, he didn’t join his duty again. The counsel on the behalf of the petitioners contended that there was no such issue of his rejoining that came to him. According to the petitioners, the dismissal from his post was highly disproportionate.

IN THE HIGH COURT OF DELHI AT NEW DELHI S 54 W.P.(C) 9854 2021 & CM APPLs. 30337 338 2021 MOHD. RAFI ..... Petitioner Through: Mr. Kaushal Yadav Advocate with Mr. Shafik Ahmed and Mr. Nandlal Kumar Mishra Advocates. DEPUTY INSPECTOR GENERAL CRPF ORS & ORS. ..... Respondents Through: D.S.Mehandru Advocate with Mr. Akshat Singh Advocate. Mr. Vivek Kumar Singh DC Law Date of Decision:08th September 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA JUDGMENT MANMOHAN J:The petition has been heard by way of video conferencing. Present writ petition has been filed challenging t he order dat ed 11 th June 2019 issued by the Respondent No. 1 an d order dat ed 08 th Au gust 2017 issued by the Respondent No. 2 whereby the Petitioner was rem oved from service. Petitioner also seeks reinstatement of service wit h fu ll back wages and other consequential benefits. W.P.(C) 9854 2021 3. Learned counsel for the petitioner states that t he Petitioner was n ot served with any notice asking him to rejoin his duty or regardin g in itiation of departmental proceedings for the alleged misconduct of over st aying on sanctioned leave. He further states that t he pu nishment of rem oval from service for alleged misconduct of continuous absence from duty with effect from 06th June 2016 awarded under Section 11(1) of the CRPF Act 1949 is highly disproportionate. He states that the Petitioner over st ayed h is leave due to his mental condition and subsequent illness caused due to the matrimonial cases instituted by the Petitioner’s wife against him before t he family court Moradabad and the removal of the Petitioner’s minor children from his custody. This Court is of the view that the petitioner who is a member of Central Armed Police Forceswas obliged to report back t o du ty after expiry of the leave. Respondents CRPF was under no obligation in law to keep on issuing notices to invite the petitioner to re join his service. Consequently this Court is of the view that the petitioner h as violated h is solemn duty and responsibility to report back on time. The factum of matrimonial dispute and illness could have been agitated before the Inquiry Officer. In any event the petitioner sh ould h ave either reported back on time or sought extension of his leave which h e did not do in the present case. For long u nauthorised absence from du ty t he punishment of dismissal of a CAPF personnel cannot be h eld t o be per se This matter calls for no interference in writ jurisdiction. Consequently the writ petition along with pending applications is dismissed. disproportionate. W.P.(C) 9854 2021 7. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail. MANMOHAN J SEPTEMBER 8 2021 TS NAVIN CHAWLA J W.P.(C) 9854 2021

Time period prescribed within the Act is a Directory Provision: Supreme Court

The Supreme Court observed that mere literal construction of a statute without examining the context and the scheme will not serve the purpose of the statute. The bench consisting of J. Nageswara Rao, J. Hemant Gupta and J. Ajay Rastogi observed in C. Bright v. the District Collector & Ors [Civil Appeal No. 3441 of 2020] that the 30 days’ time period, extendable to an aggregate of 60 days upon reasons recorded in writing, prescribed in Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI) was a directory provision. Before the matter was appealed to the SC, the Kerala HC held that “the secured creditor is adversely affected if the provision is construed as mandatory and not directory in as much as it would delay the process of taking physical possession of assets instead of expediting such process by entailing the filing of another application for such purpose”, and hence, it was to be considered as a directory and not a mandatory provision. The learned counsel for the appellant, relying on Union of India & Ors. v. A.K. Pandey [(2009) 10 SCC 552], Harshad Govardhan Sondagar v. International Assets Reconstruction Company Limited & Ors. [(2014) 6 SCC 1] and Dipak Babaria & Anr. v. State of Gujarat & Ors [(2014) 3 SCC 502] argued that “the proviso mandating the District Magistrate to record reasons, if the order is not passed within 30 days, in order to avail an extended period of a total 60 days, shows that the provision is mandatory. If the District Magistrate is not able to take decision within 60 days, the secured creditor has to find its remedy elsewhere and not in terms of Section 14 of the Act. It is contended that the proviso mandates the District Magistrate to pass an order within 30 days as the word “shall” is used in first part of the proviso. Thus, the time limit provided is unambiguous and by corollary the provision is mandatory”. The SC held that the question of time limit fixed for a public officer to perform his duty being directory or mandatory had been examined by many Courts earlier, and placing reliance of various cases, stated that until and unless the neglect of a public officer towards the performance of her/his duty causes serious inconvenience or injustice to the general public, the courts should not adjudge the provision as mandatory. The SC placed reliance on Remington Rand of India Ltd. v. Workmen [AIR 1968 SC 224], where the court held that the time limit of 30 days for publication of awards was directory since the non-publication within the prescribed time limit did not entail any penalty. Further, in P. T. Rajan v. T. P. M. Sahir & Ors [(2003) 8 SCC 498], the court, examining the non-publication of final electoral rolls before the time of acceptance of nomination of papers, stated that “It is a well settled principle of law that where a statutory functionary is asked to perform a statutory duty within the time prescribed therefor, the same would be directory and not mandatory”. Hence, the SC upheld the order of the HC and dismissed the appeal, and furthered the interpretation of such statutory provisions.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3441 OF 2020 ARISING OUT OF SLPNO. 12381 OF 2020 DIARY NO. 46087 OF 2019 THE DISTRICT COLLECTOR & ORS JUDGMENT HEMANT GUPTA J The challenge in the present appeal is to an order passed by the Division Bench of the Kerala High Court of 19.7.2019 whereby it was held that Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 1 mandating the District Magistrate to deliver possession of a secured asset within 30 days extendable to an aggregate of 60 days upon reasons recorded in writing is a directory provision The High Court held as under: For short “the Act” “18. The primary question in these Writ Petitions namely whether the time limits in section 14 of the SARFAESI Act are mandatory or directory should be answered in light of the principles enumerated above As stated above the object and purpose of the said time limit is to ensure that such applications are decided expeditiously so as to enable secured creditors to take physical possession quickly and realise their dues. Moreover as stated earlier the consequences of non compliance with the time limit are not specified and the sequitur thereof would be that the district collector district magistrate concerned would not be divested of jurisdiction upon expiry of the time limit. In this connection it is also pertinent to bear in mind that if the “consequences of non compliance” test is applied the borrower guarantor or lessee as the case may be is not adversely affected or prejudiced in any manner whether such applications are decided in 60 70 or 80 days. On the other hand the secured creditor is adversely affected if the provision is construed as mandatory and not directory in as much as it would delay the process of taking physical possession of assets instead of expediting such process by entailing the filing of another application for such purpose. For all these reasons the time limit stipulation in the amended Section 14 of the SARFAESI Act is directory and not mandatory.” The High Court examined Section 14 of the Act as amended which reads thus: “14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset. Provided further that on receipt of the affidavit from the Authorised Officer the District Magistrate or the Chief Metropolitan Magistrate as the case may be shall after satisfying the contents of the affidavit pass suitable orders for the purpose of taking possession of the secured asset within a period of thirty days from the date of application: Provided also that if no order is passed by the Chief Metropolitan Magistrate or District Magistrate within the said period of thirty days for reasons beyond his control he may after recording reasons in writing for the same pass the order within such period not exceeding in the aggregate sixty days.” The Act was enacted in the year 2002 for reasons that the legal framework relating to commercial transactions had not kept pace with the changing commercial practices. Further financial sector reforms resulted in a slow pace of recovery of defaulting loans and mounting level of non performing assets of banking and financial institutions. The objectives behind the Act recognised that unlike international banks banks and financial institutions in India did not have power to take possession of securities and sell them. The provisions of the Act were upheld by this Court except that of sub sectionof Section 17 which provided that the Debt Recovery Tribunal shall not entertain an appeal preferred by a borrower unless seventy five per cent of the amount claimed has been deposited before it2. Thereafter the question as to whether the withdrawal of an application filed under the Recovery of Debts due to Banks and Financial Institutions Act 19933 is a condition precedent to take recourse to the Act was examined by this Court4 This Court observed that when Civil Courts failed to expeditiously Mardia Chemicals Ltd. & Ors. v. Union of India & Ors. 4 SCC 311 For short “DRT Act” Transcore v. Union of India and Another 1 SCC 125 decide suits filed by the banks the DRT Act was enacted however it did not provide for assignment of debts to Securitisation compa nies. The Act which was enacted thereafter in 2002 sought to fur ther empower the banks and facilitate the recovery of debt. It pro ceeded on the basis that once the liability of a borrower to repay crystallises it becomes due and that on account of delay the ac count of such borrower becomes substandard and non performing Recently this Court noticed the objects and reasons for amending the Act in 2014 and held that the Magistrate takes possession of the asset and “forwards” such asset to the secured creditor under Section 14(1) the management of the business of a borrower can actually be taken over under Section 15 of the Act and that Section 13(4) must be read in the light of Sections 14 and 15 These are separate and distinct modes of exercise of powers by a secured creditor under the Act5 Section 14 of the Act as originally enacted empowered the Chief Metropolitan Magistrate or the District Magistrate to take posses sion of such assets and documents relating to secured assets Later by the Central Act No. 13 which came into force on 15.1.2013 a proviso to sub sectionof Section 14 of the Act was inserted contemplating that upon filing of an affidavit in the format mentioned therein by an Authorised Officer of the secured Hindon Forge Private Limited & Anr. v. State of Uttar Pradesh through District Magistrate Ghaziabad & Anr.2 SCC 198 creditor the District Magistrate or the Chief Metropolitan Magis trate shall pass suitable orders for the purpose of taking posses sion of the secured assets. It is thereafter the Act was amended vide Central Act 416 which came into force on 1.9.2016. The argument of Mr. Khan learned counsel for the appellant is that the proviso mandating the District Magistrate to record rea sons if the order is not passed within 30 days in order to avail an extended period of a total 60 days shows that the provision is mandatory. If the District Magistrate is not able to take decision within 60 days the secured creditor has to find its remedy else where and not in terms of Section 14 of the Act. It is contended that the proviso mandates the District Magistrate to pass an order within 30 days as the word “shall” is used in first part of the pro viso. Thus the time limit provided is unambiguous and by corollary the provision is mandatory. Reliance is placed on the judgments of this Court in Union of India & Ors. v. A.K. Pandey6 Harshad Govardhan Sondagar v. International Assets Reconstruc tion Company Limited & Ors.7 Dipak Babaria & Anr. v. State of Gujarat & Ors.8 in support of his arguments that the use of expression “shall” and the language of the second proviso in fixing the time limit of 60 days after recording of reasons makes the pro 10 SCC 552 6 SCC 1 3 SCC 502 vision mandatory. If the District Magistrate has not been able to take possession the proceedings before him abates. A well settled rule of interpretation of the statutes is that the use of the word “shall” in a statute does not necessarily mean that in every case it is mandatory that unless the words of the statute are literally followed the proceeding or the outcome of the proceeding would be invalid. It is not always correct to say that if the word “may” has been used the statute is only permissive or directory in the sense that non compliance with those provisions will not render the proceeding invalid9 and that when a statute uses the word “shall” prima facie it is mandatory but the Court may ascertain the real intention of the legislature by carefully at tending to the whole scope of the statute10. The principle of literal construction of the statute alone in all circumstances without ex amining the context and scheme of the statute may not serve the purpose of the statute11. The question as to whether a time limit fixed for a public officer to perform a public duty is directory or mandatory has been examined earlier by the Courts as well. A question arose before the Privy Council in respect of irregularities in the preliminary proceedings for constituting a jury panel. The Municipality was State of U.P. v. Manbodhan Lal Srivastava AIR 1957 SC 912 10 State of U.P. & Ors. v. Babu Ram Upadhya AIR 1961 SC 751 11 Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & Ors. 1987) 1 SCC 424 expected to revise the list of qualified persons but the jury was drawn from the old list as the Sheriff neglected to revise the same It was in these circumstances the decision of the jury drawn from the old list became the subject matter of consideration by the Privy Council. It was thus held that it would cause greater public inconvenience if it were held that neglecting to observe the provisions of the statute made the verdicts of all juries taken from the list ipso facto null and void so that no jury trials could be held until a duly revised list had been prepared12 The Constitution Bench of this Court held that when the provisions of a statute relate to the performance of a public duty and the case is such that to hold acts done in neglect of this duty as null and void would cause serious general inconvenience or injustice to persons who have no control over those entrusted with the duty the practice of the courts should be to hold such provisions as directory13. In a seven Bench judgment this Court was consid ering as to whether the power of the Returning Officer to reject ballot papers is mandatory or directory. The Court examined well recognised rules of construction to observe that a statute should be construed as directory if it relates to the performance of public duties or if the conditions prescribed therein have to be per 12 Montreal Street Railway Company v. Normandin AIR 1917 PC 142 13 Dattatraya Moreshwar Pangarkar v. State of Bombay & Ors. AIR 1952 SC 181 formed by persons other than those on whom the right is con In a judgment reported as Remington Rand of India Ltd. v Workmen15 Section 17 of the Industrial Disputes Act 1947 came up for consideration. The argument raised was that the time limit of 30 days of publication of award by the labour court is mandatory. This Court held that though Section 17 is mandatory the time limit to publish the award within 30 days is directory inter alia for the reason that the non publication of the award within the period of thirty days does not entail any penalty. In T.V. Usman v. Food Inspector Tellicherry Municipality Tellicherry16 the time period during which report of the analysis of a sample under Rule 7(3) of the Prevention of Food Adulteration Rules 1955 was to be given was held to be directory as there was no time limit prescribed within which the prosecution had to be instituted. When there was no such limit prescribed then there was no valid reason for holding the period of 45 days as mandatory. Of course that does not mean that the Public Analyst can ignore the time limit prescribed under the rules. He must in all cases try to comply with the time limit. But if there is some delay in a given case there is no reason to hold that the very report is void and on that basis to hold that even prosecution cannot be launched 14 Hari Vishnu Kamath v. Ahmad Ishaque & Ors.AIR 1955 SC 233 15 AIR 1968 SC 224 16 1 SCC 754 This Court distinguished between failure of an individual to act in a given time frame and the time frame provided to a public authority for the purposes of determining whether a provision was mandatory or directory when this Court held that it is a well settled principle that if an act is required to be performed by a private person within a specified time the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time frame the same will be held to be directory unless the consequences therefor are specified17. In P.T. Rajan v. T.P.M. Sahir & Ors.18 this Court examined the affect of non publication of final electoral rolls before the time of acceptance of nomination papers. The Court held as under “48. Furthermore even if the statute specifies a time for publication of the electoral roll the same by itself could not have been held to be mandatory. Such a provision would be directory in nature. It is a well settled principle of law that where a statutory functionary is asked to perform a statutory duty within the time prescribed therefor the same would be directory and not mandatory. Nomita Chowdhury v. State of W.B.2 Cal LJ 21] and Garbari Union Coop Agricultural Credit Society Ltd. v. Swapan Kumar Jana1 CHN 189] .)” A recent Constitution Bench held that the provisions of the Consumer Protection Act granting 30 days’ time to file response by 17 Nasiruddin & Ors. v. Sita Ram Agarwal 2 SCC 577 18 8 SCC 498 the opposite party or such extended period not exceeding 15 days is mandatory as the object of the statute is for the benefit and protection of the consumer. It observed that such act had been enacted to provide expeditious disposal of consumer disputes. In this case an individual was called upon to file his written statement in contradiction for a pubic authority to decide the issue The Full Bench of Patna High Court in Shiveshwar Prasad Sinha was examining the provisions of the Bihar BuildingsControl Act 1947 which permitted a Government servant in occupation of a building as a tenant to serve a notice of 15 days on the landlord and the District Magistrate of his intention to vacate the premises. The High Court held that the Government servant to whom the house was allotted had no control over the District Magistrate therefore the time limit required by the provision was not mandatory. A Single Bench of Madhya Pradesh High Court20 examined the provisions of Section 14 of the Act as amended. The Court held that the second proviso to sub section of Section 14 was inserted in order to ensure that Chief Metropolitan Magistrate or District Magistrate pass the order within a stipulated time. The 19 New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Private Limited 5 SCC 757 20 In Manish Makhija v. Central Bank of India & Ors. 2018 SCC OnLine MP 553 Bank secured creditor has no control over the District Magistrate After filing an application under sub sectionof Section 14 the Bank had no authority to compel the Chief Metropolitan Magistrate or District Magistrate to pass orders within reasonable time. The legislature in order to bind the said authorities inserted the said proviso. Thus the basic object and purpose was to fix a time limit for the concerned Magistrate to pass an order and not to give a clean chit to an unscrupulous borrower guarantor who had not repaid the debts Now coming to the Judgments referred to by Mr. Khan. In A.K Pandey the respondent was not provided 96 hours of interval time as contemplated by the relevant rules before commencing a trial by the Court Martial. This Court held that such proceedings were vitiated as the purpose of the time limit was that before the accused is called upon for trial he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried decide about his defence and ask the authorities if necessary to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action he must be given clear ninety 18. Harshad Govardhan Sondagar was a case where the person in possession claimed tenancy rights in the premises as well as a protected tenancy being a tenant prior to creation of a mortgage It was held that the remedy of an aggrieved person against a decision of Chief Metropolitan Magistrate or a District Magistrate lay only before the High Court. However after the aforesaid judgment was rendered on 3.4.2014 the Act had been amended and sub section 4A was inserted in Section 17 with effect from 1.9.2016. This provided a right to move an application to the Debts Recovery Tribunal by a person who claimed tenancy or leasehold rights. 19. Dipak Babaria was a case wherein agricultural land was sold by an agriculturist to another person for industrial purposes Permission was to be granted by the Collector for the same. In these circumstances it was held that when a statute provides for a thing to be done in a particular manner then it should be done in that manner itself. Such proposition does not arise for consideration in the present case. 20. The Act was enacted to provide a machinery for empowering banks and financial institutions so that they may have the power to take possession of secured assets and to sell them. The DRT Act was first enacted to streamline the recovery of public dues but the proceedings under the said Act have not given desirous re sults. Therefore the Act in question was enacted. This Court in Mardia Chemical Transcore and Hindon Forge Private Lim ited has held that the purpose of the Act pertains to the speedy recovery of dues by banks and financial institutions. The true in tention of the Legislature is a determining factor herein. Keeping the objective of the Act in mind the time limit to take action by the District Magistrate has been fixed to impress upon the author ity to take possession of the secured assets. However inability to take possession within time limit does not render the District Mag istrate Functus Officio. The secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues Therefore Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14 it would be contrary to the purpose of the Act. The time limit is to instill a confidence in creditors that the District Magistrate will make an at tempt to deliver possession as well as to impose a duty on the Dis trict Magistrate to make an earnest effort to comply with the man date of the statute to deliver the possession within 30 days and for reasons to be recorded within 60 days. In this light the remedy under Section 14 of the Act is not rendered redundant if the Dis trict Magistrate is unable to handover the possession. The District Magistrate will still be enjoined upon the duty to facilitate delivery of possession at the earliest. Even though this Court in United Bank of India v. Satyawati Tondon & Ors.21 held that in cases relating to recovery of the dues of banks financial institutions and secured creditors stay granted by the High Court would have serious adverse impact on the financial health of such bodies institutions which will ultimately prove detrimental to the economy of the nation Therefore the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Hindon Forge Private Limited has held that the rem edy of an aggrieved person by a secured creditor under the Act is by way of an application before the Debts Recovery Tribunal how ever borrowers and other aggrieved persons are invoking the ju risdiction of the High Court under Articles 226 or 227 of the Consti tution of India without availing the alternative statutory remedy The Hon’ble High Courts are well aware of the limitations in exer cising their jurisdiction when affective alternative remedies are available but a word of caution would be still necessary for the High Courts that interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money 21 8 SCC 110 Thus we do not find any error in the order passed by the High Court. Consequently the appeal is dismissed. L. NAGESWARA RAO NEW DELHI NOVEMBER 5 2020

Anticipatory bail is an extraordinary remedy to be granted only in extraordinary circumstance: Manipur High Court

In the circumstance of the investigation going in the right way and limited allegations levelled against petitioners, if the anticipatory bail is granted to the petitioners, no prejudice would be caused either to the victim or the prosecution. This was said in the case of Thokchom Thai Singh vs The Officer-In-Charge [AB No.2,3 of 2021] by Mr. Justice M.V. Muralidaran in The High Court Of Manipur  The facts of the case are that a petition has been filed by the petitioners under Section 438 Cr.P.C. seeking to grant anticipatory bail in connection with an FIR registered under Section 376, 366-A, 417 IPC and Section 4 of POCSO Act The petitioners contended that the names of the petitioners do not appear in the FIR, however, the police personnel came to house for causing arrest. Secondly, it was contended that there is no material on record to show that the petitioners involved in the commission of the crime alleged in the FIR. Thirdly, it was contended that the petitioners are law abiding citizens and they are always ready and willing to co-operate with the investigating officer of the case and that there is no question of hampering or tampering the prosecution witnesses and/or evidence when they are released on bail. It was further contended that based on the statement of the victim, the respondent police is trying to implicate the petitioners in this case.  Per contra, the respondents contended that the investigation so far done reveals that the petitioners had indeed participated in the commission of the crime and since the investigation is in full swing, the petitioners cannot be granted anticipatory bail. The learned Additional Public Prosecutor further contended that since the allegations levelled against the petitioners are serious in nature, their petitions must be dismissed  The Court referred to the case of Bhadresh Bipinbhai Sheth v. State of Gujarat and another [(2016) 1 SCC 152] wherein it was said that “frivolity in prosecution should always be considered and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of anticipatory bail. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. It should necessarily depend on facts and circumstances of each case in consonance with the legislative intention”. 

IN THE HIGH COURT OF MANIPUR AT IMPHAL AB No.21 Thokchom Thai Singh aged about 23 years S o Th. Sukumar Singh resident of Malom Tulihal Makha Leikai P.O. Tulihal P.S. Nambol District Imphal West Manipur. . Petitioner s Versus The Officer in Charge Women Police Station Kakching Kakching District Manipur. With AB No.21 Namoijam Saheli Devi aged about 19 years W o O. Rabi Singh resident of Kadompokpi Maning Leikai P.O. Tulihal P.S. Nambol District Imphal West Manipur 795134. . Petitioner s Versus The Officer in Charge Women Police Station Kakching Kakching District Manipur. HON’BLE MR. JUSTICE M.V. MURALIDARAN For the Petitioner s For the Respondent s Date of hearing & Reserved : Mr. N. Surendrajit Advocate Mr. H. Samarjit PP Judgment & Order Anticipatory Bail Nos.2 and 21 JUDGMENT & ORDER These petitions have been filed by the petitioners under Section 438 Cr.P.C. seeking to grant anticipatory bail in connection with FIR Case No.76(10)2020 on the file of KCG Police Station registered under Section 376 366 A 417 IPC and Section 4 of POCSO Act. Since both the petitions arise out of the same FIR they were heard together and disposed of by this common order. The case of the prosecution is that on 31.10.2020 at 4.10 p.m. the complainant Khetrimayum Chaoba Singh reported to the officer in charge of Kakching Police Station that on 24.10.2020 at around 3.45 p.m. his minor daughter Jusiepriya Kshetrimayum aged 15 years was called out from his house by one Naorem Prasanta Singh of Malom Tulihal Makha Leikai and she was kidnapped to be his wife thereby Prasanta Singh committed sexual offence without her consent. The further case of the prosecution is that with the help of his friends namely Oinam Rakesh Singh and Thokchom Bonthai Singh the accused Naorem Prasanta Singh kidnapped the victim. According to the prosecution on 24.10.2020 night the accused and the victim stayed at the house of Oinam Rakesh Singh of Kodompokpi Maning Leikai where the victim narrated that she was kidnapped by the accused Anticipatory Bail Nos.2 and 21 Prasanta Singh to Namoijam Saheli Devi. However the said Namoijam Saheli Devi did not hear the same. According to the prosecution on examination the victim stated that she never consented for physical relation. The case of the petitioner in Anticipatory Bail No.21 is that he accompanied one of his friends for a drive to Kakching side on 24.10.2020 where his girl friend resides. After reaching Kakching his friend called out his girl friend for having a cup of coffee. The said girl came out and they had coffee and talked for a while. Thereafter they came out and as proposed by the said girl she was eloped with his friend. On the way back home he was dropped at his residence and requested by his friend to inform his parents about the elopement. The petitioner in Anticipatory Bail No.21 stated that she is the sister in law of Rakesh Singh who is a friend of accused Naorem Prasanta Singh. According to the petitioner on 24.10.2020 at about 6.00 p.m. the accused Prasanta Singh came to her house along with one girl and requested her brother in law and mother in law for staying that night by saying that they were eloped. As requested they were allowed to stay that night at the residence of the petitioner and the petitioner gave some cloths to the said girl for changing her dress as a common practice. Anticipatory Bail Nos.2 and 21 The respondent State filed affidavit in opposition stating that on preliminary interrogation the accused Prasanta Singh admitted that he had been known with the victim through face book since three months back and had love affairs and he eloped with her on 24.10.2020 and had physical relation. It is stated that the victim was produced before the CWC Kakching for necessary action and for recording her statement. On further interrogation of the accused Prasanta Singh it reveals that he along with his two friends were present on 24.10.2020 and his friends helped him during the whole journey after the commission of the crime and also spent the whole night at the residence of his colleague at Mekola and after his act of intimacy to her both left for his residence the next day. It is further stated in the affidavit in opposition that on examination the victim stated that she willingly gone with the accused just to show Kakching area since the accused Prasanta Singh being her face book friend. She further stated that she was kidnapped by Prasanta Singh and brought forcibly in a car towards Khongjom with the help of his friends who were later identified as Oinam Rakesh Singh and Thockchom Bonthai Singh. The victim further stated that they stayed the night at the house of Oinam Rakesh Singh where she narrated to the woman of the house later identified as Namoijam Saheli Devi that it was not elopement but she was kidnapped. It is stated that on interrogation of Oinam Rakesh Singh he stated that he Anticipatory Bail Nos.2 and 21 along with Thockchom Bonthai Singh and the accused Prasanta Singh participated in the commission of the crime. Oinam Rakesh Singh also admitted that he made arrangement for the night stay at his house and his sister in law Namoijam Saheli Devi assisted the victim to change her cloths. According to the respondent State the investigation of the case is in full swing and in good progress and thus prayed for dismissal of the petitions. The learned counsel for the petitioners submitted that the names of the petitioners do not appear in the FIR however the police personnel of Nambol Police Station came to the house of the petitioner Thokchom Thai Singh on 27.11.2020 at about 2.30 p.m. for causing arrest. Since the petitioner was not at his residence his father was asked to ensure the appearance of the petitioner before the investigating officer on 28.11.2020 at 10.30 a.m. The learned counsel for the petitioners further submitted that similarly the police personnel of Nambol Police Station came to the house of the petitioner Namoijam Saheli Devi on 2.12.2020 at about 3.00 p.m. for causing arrest of her and since she was not at her residence her in laws were asked to ensure the appearance of the petitioner before the investigating officer on 3.12.2020 at 10.30 a.m. Anticipatory Bail Nos.2 and 21 10] The learned counsel for the petitioners then submitted that the petitioners are innocent and they were no way related to the crime. In fact the petitioner Thokchom Thai Singh was just accompanied with the said accused Prasanta Singh on the day of elopement and he was dropped at his residence by them and they went to the house of one of the friends of the accused for staying the night on 24.10.2020. He would submit that as far as the petitioner Namoijam Saheli Devi is concerned she just gave some cloths to the eloped girl for changing her dress. 11] The learned counsel next submitted that the petitioners are not at all involved in the alleged FIR Case and that there is no material on record to show that the petitioners involved in the commission of the crime alleged in the FIR. According to the learned counsel the petitioners are law abiding citizens and they are always ready and willing to co operate with the investigating officer of the case and that there is no question of hampering or tampering the prosecution witnesses and or evidence when they are released on bail. The learned counsel further submitted that based on the statement of the victim the respondent police trying to implicate the petitioners in this case. 12] Per contra the learned Additional Public Prosecutor submitted that the investigation so far done reveals that the petitioners had indeed participated in the commission of the crime and since the investigation is in Anticipatory Bail Nos.2 and 21 full swing the petitioners cannot be granted anticipatory bail. He would submit that in fact the petitioner Thokchom Thai Singh approached the Sessions Court and filed anticipatory bail petition and the same was rejected on 04.12.2020. The learned Additional Public Prosecutor further submitted since the allegations levelled against the petitioners are serious in nature they are not entitled to get the anticipatory bail and therefore prayed for dismissal of the petitions. 13] This Court considered the submissions made by the learned counsel for the parties and also perused the materials available on record. 14] According to the petitioner in Anticipatory Bail No.2 of 2021 he just accompanied with the main accused on the date of the alleged elopement by the accused Prasata Singh with the victim. Similarly the petitioner in Anticipatory Bail No.3 of 2021 contends that she just gave some cloths to the eloped girl for changing her dress as a common practice on the night of 15] The prosecution contends that this is not a case of elopement but it is a case of kidnap by the accused Prasanta Singh for which the petitioners herein and one Oinam Rakesh Singh helped him. 16] At this juncture it is worth to extract certain averments set out in the affidavit in opposition which read as under: Anticipatory Bail Nos.2 and 21 “On the other hand the victim stated that she willing gone with the accused just to show Kakching area since he being her face book friend and had never met face to face before and she also stated that she was kidnapped by Naorem Prasanta SinghS o N.Bagirath Singh of Malom Tulihal Makha Leikai and brought in a car Khongjom with the help of the accused friends who were later identified disclosed by the accused as that ofOinam Rakesh Singh S o O.Biramani Singh of Kodompokpi Maning Leikai PO PS Nambol District Imphal West andThocchom Bonthai Singh S o Th.Surkumar Singh of Malom Tulihal Makha Leikai and thereafter the vehicle towards Maitram Kodompokpi. She stated that they stayed the night at the house of Oinam Rakesh Singh S o Biramani Singh of Kodompikpi Maning Leikai therein she narrated to the woman of the housewho is a friend of main accused Naorem Prasanta Singh in the case) that it was not elopement but she was kidnapped and it was carried out without her consent but the woman did not hear to her and instead cover up the crime. That she never gives her consent of physical relation.” 17] Thus it is the case of the respondent State that the petitioner Thokchom Thai Singh and Oinam Rakesh Singh helped the main accused Prasanta Singh for the commission of the offence and despite the narration of the fact that the victim was not eloped with the main accused and she was Anticipatory Bail Nos.2 and 21 kidnapped by the accused Prasanta Singh the petitioner Namoijam Saheli Devi unheard the same and screened the offence. 18] The statement of the victim that she willingly gone with the main accused Prasanta Singh just to show Kakching area as the accused Prasanta Singh being her face book friend and she was kidnapped by the accused Prasanta Singh with the help of his two friends cannot now be gone into since the same would be established during trial. Earlier the petitioner Thokchom Thai Singh approached the learned Sessions Judge and the learned Sessions Judge dismissed the anticipatory bail application taking note of the gravity of the offence and relying on the statement of the victim. But the learned Sessions Judge has failed to see the allegations levelled against the said petitioner. It is contended on behalf of the petitioners that elopement and marriage is the common practice of the Manipuri Hindus in the State of Manipur. As a practice on the date of elopement the eloped girl was not taken to the house of the eloping boy but was kept at the house of a friend or relative and informed the parents of the eloping boy by such friend or relative. Thereafter the parents of the eloping boy used to give formal information of the elopementin the morning of the next day the elopement the parents of eloping girl and make Anticipatory Bail Nos.2 and 21 settlement arrangement of the marriage. This Court finds that the said aspect of the matter now cannot be gone into in these petitions. 20] Admittedly the petitioners were not named in the FIR and based on the statement given by the accused Prasanta Singh the investigating office went to the houses of the petitioners and asked them to appear before the Police Station on the respective dated indicated above. It is the apprehension of the petitioners that at any time the investigating officer will arrest them and they were no way in connection with the alleged commission of the crime. It is also the contention of the petitioners that their personal liberty has been very much affected. It is contended that personal liberty is a very precious fundamental right and it would be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case. 21] The provision of anticipatory bail enshrined in Section 438 of Cr.P.C. is conceptualized under Article 21 of the Constitution of India. It relates to personal liberty of a particular person and such a provision calls for liberal interpretation of Section 438 of Cr.P.C. in the light of Article 21 of the Constitution of India. 22] Section 438 of Cr.P.C. clearly stipulates in the beginning statement itself that when a person has a reasonable apprehension to believe that they Anticipatory Bail Nos.2 and 21 can be arrested on an accusation for commitment of a non bailable offence they can move the High Court or the Court of Sessions for grant of an anticipatory bail. The power to grant anticipatory bail must be exercised by the Court in very exceptional cases. The Court must be satisfied that there is a reasonable cause and a reasonable ground for grant of anticipatory bail. Section 438 Cr.P.C. protects the right to life and personal liberty of such persons by providing them with a remedy against frivolous detention. In a country where rifts and rivalries are common its citizens should have a remedy which prevents disgracing their right to life and personal liberty. In Bhadresh Bipinbhai Sheth v. State of Gujarat and another reported in 1 SCC 152 the Hon ble Supreme Court has laid down certain guidelines in respect of application for anticipatory bail. In paragraph 25.10 the Hon ble Supreme Court held as under: “25.10. We all also reproduce para 112 of the judgment in Siddaram Satingappa case wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail: a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made Anticipatory Bail Nos.2 and 21 b) The antecedents of the applicant including the fact as to imprisonment on conviction by a Court in respect of any cognizable offence c) The possibility of the applicant to flee from justice d) The possibility of the accused s likelihood to repeat similar or other offences e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people g) The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code 1860 the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern h) While considering the prayer for grant of anticipatory bail a balance has to be struck between two factors namely no prejudice should be caused to free fair and full investigation and there should be prevention of Anticipatory Bail Nos.2 and 21 harassment humiliation and unjustified detention of the accused i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution in the normal course of events the accused is entitled to an order of bail.” 24] As held by the Hon’ble Supreme Court in Bhadresh Bipinbhai Sheth supra) frivolity in prosecution should always be considered and in the event of there being some doubt as to the genuineness of the prosecution in the normal course of events the accused is entitled to an order of anticipatory bail. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. It should necessarily depend on facts and circumstances of each case in consonance with the legislative intention. 25] The law is well settled that anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the Court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. Presumption of innocence is a human right. No doubt placing of burden of Anticipatory Bail Nos.2 and 21 proof on accused in certain circumstances may be permissible but there cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or Court. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law. It is the duty of the Court to exercise its jurisdiction in proper way to protect the personal liberty of a citizen. If Courts do not interfere we are troubling the path on destruction. This proposition of law has been laid down by the Hon’ble Supreme Court in its recent decision in the case of Arnab Manoranjan Goswami Vs. The State of Maharashtra and Others decided on 27] Though the offence alleged in the instant case is grave in nature which includes the offence under Section 4 of the POCSO Act the petitioners were not named in the FIR. It is an admitted case that the petitioners herein have helped the accused Prasanta Singh for elopement. Since the allegations levelled against the petitioners are limited in nature of helping the accused Prasanta Singh and prima facie the said act of the petitioners would not attract the commission of offence under the POCSO Act in respect of the petitioners in the interest of justice they are entitled to get the anticipatory bail. Anticipatory Bail Nos.2 and 21 28] As admitted by the respondent State the investigation is going on the right way. In such circumstances if the anticipatory bail is granted to the petitioners no prejudice would be caused either to the victim or the prosecution. It is not the case of the respondent State that the petitioners herein are trying to tamper the evidence. When that being the position taking into account the limited allegations levelled against the petitioners this Court is of the view that the petitioners are entitled to get anticipatory bail provided they should co operate with the investigating officer in completing the investigation. This Court is of the considered opinion that in order to ascertain the truth a fair and unbiased investigation is necessary. In the light of the above by imposing some stringent conditions if the petitioners are ordered to be released on anticipatory bail it would serve the purpose. 29] Accordingly these petitions are allowed and the petitioners are granted anticipatory bail the event of their arrest in FIR Case No.76(10)2020 on the file of KCG Police Station for the offences punishable under Sections 376 366 A 417 IPC and Section 4 of POCSO Act subject to the following conditions: The petitioners in Anticipatory Bail Nos.2 and 3 of 2021 shall executed a personal bond for Rs.50 000 each with two sureties for the like sum each to the satisfaction of the Sessions Judge Thoubal. The petitioners are directed to appear before the Respondent police daily at 10.00 a.m. until further order. They shall surrender before the Investigating Officer within fifteen days today failing which this order shall automatically stand cancelled. They shall co operate with the investigation as and when prior permission. They shall not tamper with the prosecution evidence in any They shall not leave the jurisdiction of the trial Court without They shall not indulge in similar type of criminal activities in If they violates anyone of the conditions the prosecution is at liberty to file petition for cancellation of the anticipatory bail. This Court has not delve into the merits of the matter and the views expressed in this order are prima facie only. Larson JUDGE Anticipatory Bail Nos.2 and 21

The language of Section 152 of CPC is based on the presumption that the mistakes are of a clerical nature : The High Court of Calcutta

Section 152 of The Code of Civil Procedure applies to clerical and arithmetical mistakes in judgments, decrees or orders or errors arising from any accidental slip or omission which may be corrected by the court any time after passing of the order either on its own motion or on the application of any of the parties who seeks such correction. The language of Section 152 is based on the presumption that the mistakes are of a clerical nature without touching upon the merits of the matter or being capable of altering the effect of the order by changing the liabilities or obligations of the parties before the court. In the Hon’ble High Court of Calcutta led through the single-bench by Justice Moushumi Bhattacharya in the matters of Square Four Assets Management & Reconstruction Co. P. Ltd & Ors. v. Orient Beverages Ltd. & Ors.[CS/144/2016] The facts of the case are the plaintiff filed an application in the suit under Chapter XIIIA of the Original Side Rules of this Court for final judgment against defendant no.2 for eviction and recovery of vacant and khas possession of an area of 22,500 sq. ft., equivalent to 31,500 Sq. ft. of super built-up area on the 4th, 5th and 6th floors of the building on the demised premises. The plaintiffs also claimed for final judgment determining the occupational charges and mesne profits payable by defendant no.2 in respect of the said area. The suit was, accordingly, decreed for Rs.4,67,99,250/- together with interest at the rate of 8% per annum simple interest from the date of the order till payment to the plaintiffs. The balance claim of the mesne profits was referred to the Special Referee appointed by the court for determination. The prayer for correction of the order is resisted by Mr S. N. Mookherjee, Senior Counsel and Mr Joy Saha, Senior Counsel appearing for the plaintiffs who submit that the application is not only belated but that defendant no.2 has not challenged the decree dated 11th July 2017. According to counsel, this is not a case that falls under Section 152 of the CPC and that the Minutes of the meeting relied upon by defendant no.2 has been disputed by the said defendant itself on the lack of authority of the person representing the defendant no.2. The court concluded “The alteration of the figure of the area is not in the nature of an accidental slip or omission by the court which can be corrected at any time after the pronouncement of the order. The salutary practice of a court becoming functus officio after a judgment has been delivered is for the benefit of litigants who rely upon the certainty of orders for an effective implementation thereof. There must also be closure of proceedings so that parties can take the next course of action. Litigants cannot remain in limbo as to the finality of orders and judgments. Samarendra Nath Sinha vs. Krishna Kumar Nag; AIR 1967 SC 1440, relied on behalf of the defendant no.2 involved an arithmetic error made by the court by reason whereof Section 151 of the CPC was relied upon and the court was of the view that errors arising from such omissions can be subsequently corrected even after a judgment has been pronounced and signed by the court.” Though, the present case is not one where the so-called mistake in the judgment and order dated 11th July 2017 can be reduced to a mistake through inadvertence or oversight and hence capable of being corrected under Section 152 of The Code of Civil Procedure.

IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE Present : THE HON’BLE JUSTICE MOUSHUMI BHATTACHARYA I.A. No. G.A.18 Old No. G.A. No.5018) C.S.1416 Orient Beverages Ltd. & Ors. For the Plaintiffs Mr. S. N. Mookherjee Sr. Adv. Square Four Assets Management & Reconstruction Co. P. Ltd & Ors. Mr. Joy Saha Sr. Adv. Mr. Zeeshan Haque Adv. Mr. Subranil Dey Adv. Ms. Sudipta Paul Adv. Ms. Sharmistha Saha Adv. For the Respondent No.1 Mr. Kaushik Banerjee Adv. For the Respondent No.2 : Mr. A.K. Chatterjee Sr. Adv. Mr. Anup Kanti Poddar Adv. Mr. Ayan Poddar Adv. 2 Ms. Moumi Yasmin Adv. Ms. Sampurna Pal Adv. Reserved on : Delivered on : MOUSHUMI BHATTACHARYA J. The second defendant in the suit has filed the present application for appointment of a Surveyor for measuring the area of the suit premises which is a subject matter of an order passed by a learned Single Judge on 11th July 2017. The relief claimed in the present application is essentially for modification of the order dated 11th July 2017. The plaintiff filed an application in the suit under Chapter XIIIA of the Original Side Rules of this Court for final judgment against the defendant no.2 for eviction and recovery of vacant and khas possession of an area of 22 500 Sq. ft. equivalent to 31 500 Sq. ft. of super built up area on the 4th 5th and 6th floors of the building on the demised premises. The plaintiffs also claimed for final judgment determining the occupational charges and mesne profits payable by the defendant no.2 in respect of the said area. The suit is for a decree against the defendant no.2 for eviction and recovery of vacant and khas possession of a portion of the demised premises at Chowringhee Road Kolkata. 3 By the order dated 11th July 2017 disposing of the application under Chapter XIIIA the learned Single Judge noted that the defendant no.2 had already delivered up vacant possession of 31 500 Sq. ft. super built up area on the three floors of the building and further noted that the question before the court was of the quantum of mesne profits which were to be awarded to the plaintiffs for the defendants’ occupation of the premises from October 2015 to December 2016. The order contains a tabulated statement showing Rs.4 67 99 250 as the admitted amount which was payable by the defendant no.2 to the plaintiffs. The suit was accordingly decreed for Rs.4 67 99 250 together with interest at the rate of 8% per annum simple interest from the date of the order till payment to the plaintiffs. The balance claim of the mesne profits was referred to the Special Referee appointed by the court for determination. According to Mr. Ajay Chatterjee Senior Counsel appearing for the defendant no.2 applicant the order dated 11th July 2017 contains an erroneous recording that the defendant no.2 delivered up vacant possession of 31 500 Sq. ft. whereas the said defendant occupied only an area measuring 22 500 Sq. ft. in the 3rd 4th and 5th floors of the building which would be evident from two documents including the Schedule to the Deed and the Ejectment Notice issued by the defendant no.1 upon the defendant no.2. Counsel urges that the order contains an obvious mistake with regard to the area in occupation of the defendant no.2 which should be read as 22 500 Sq. ft. instead of 31 500 Sq. ft. and that the defendant no.2 should 4 not be made liable to pay mesne profits for an area in excess of 22 500 Sq. ft. Counsel submits that this court has ample power to correct an arithmetical mistake under Section 152 of The Code of Civil Procedure 1908 and also relies on Order XX Rule 3 of the CPC for that purpose. The prayer for correction of the order is resisted by Mr. S. N. Mookherjee Senior Counsel and Mr. Joy Saha Senior Counsel appearing for the plaintiffs who submit that the application is not only belated but that the defendant no.2 has not challenged the decree dated 11th July 2017. According to counsel this is not a case which falls under Section 152 of the CPC and that the Minutes of the meeting relied upon by the defendant no.2 has been disputed by the said defendant itself on the lack of authority of the person representing the defendant no.2. Upon hearing learned counsel appearing for the parties and the order passed by the learned Single Judge on 11th July 2017 this court is of the view that the apparent “mistake” as contended on behalf of the defendant no.2 is not one which can be categorised as a mere clerical or arithmetical error. There are several reasons for this. First the order mentions 31 500 Sq. ft. super built up areaon the 4th 5th and 6th floors on the premises at Chowringhee Road at Kolkata being the area which was delivered up by way of vacant possession by the defendant no.2 to the plaintiffs. The Schedule to the Deed of Assignment dated 9th April 1979 mentions “a covered area of 22 500 Sq. ft.” on the three floors of the building and the Schedule being Annexure F to the plaint also mentions “a 5 covered area of 22 500 Sq. ft.” equivalent to 31 500 Sq. ft. of super built up area being the 4th 5th and 6th floors of the building. The order which is impugned in this application also mentions the figure of 31 500 Sq. ft. as being the super built up area on the three floors which thus matches with the Schedule at Annexure F of the application. The Ejectment Notice dated 4th August 2015 from the defendant no.1 to the defendant no.3 mentions the figure of 22 500 Sq. ft. but is silent on whether the said figure pertains to the covered area or the super built up area. Therefore credence can only be given to the Deed of Assignment and the Schedule thereof which forms the base document between the parties. Second the Minutes of the meeting held on 4th August 2017 which records certain corrections to be made in the Order dated 11th July 2017 including that 31 500 Sq. ft. is to be read as 29 250 Sq. ft. mentions a different figure to that of the Schedule ‘C’ to the Deed. Weightage cannot also be given to the Minutes by reason of the fact that the defendant no.2 has contended that the person representing the said defendant at the meeting did not have the authority to represent the defendant no.2. The prayer for modification of the decree must also be rejected on a more significant issue. The order recording that 31 500 Sq. ft. of super built up area has already been delivered up by the defendant no.2 in favour of the plaintiffs clearly reflects an understanding between the parties on the area mentioned therein where the defendant no.2 represented by counsel accepted the figure of 31 500 Sq. ft. The suit was decreed 6 Rs.4 67 99 250 together with interest on that basis for determination. The present application was made on 16th February 2018 seven months after the order. The defendant no.2 did not take any steps for challenging the order within the statutory framework of the procedure which was available to the defendant no.2. The defendant no.2 had every opportunity to approach the learned Judge who passed the order dated 11th July 2017 for suitable modification or variation thereof which was also not done. Section 152 of The Code of Civil Procedure applies to clerical and arithmetical mistakes in judgments decrees or orders or errors arising from any accidental slip or omission which may be corrected by the court any time after passing of the order either on its own motion or on the application of any of the parties who seeks such correction. The language of Section 152 is based on the presumption that the mistakes are of a clerical nature without touching upon the merits of the matter or being capable of altering the effect of the order by changing the liabilities or obligations of the parties before the court. Order XX Rule 3 of the CPC carves out an exception for cases governed by Section 152 but mandates that once a judgment has been pronounced in open court and signed the judgment shall not be altered or added to. The dictum hence is clear that a judgment of a court cannot be disturbed or unsettled save and except for correction of mistakes which are obvious in the sense of being clerical in nature where the court is not called upon to engage in the substance of the dispute or embark on a protracted hearing on the issue of correction. The aforesaid idea finds strength from the 7 decision of the Supreme Court in State of Maharashtra vs. Ramdas Shrinivas Nayak AIR 1982 SC 1249 where the Supreme Court in the irreplaceable words of Justice Chinnappa Reddy held that statements of fact as to what transpired at the hearing and recorded in the judgment of the court are conclusive of the facts stated and cannot be contradicted by affidavit or otherwise. The court reinforced the principle that matters of judicial record are unquestionable and cannot be open to doubt. The Supreme Court also advised that it is incumbent upon the party who seeks correction of a recording in a judgment to approach the court while the matter is still fresh in the minds of the judges. In the present case four years have passed since the order of the learned Single Judge who is a sitting judge of this court. There does not appear to have been any attempt made on the part of the applicant defendant no.2 to seek corrections or clarifications of the order as is being urged before this court today. The defendant no.2 also had the recourse provided under Chapter XVI Rule 32 of the Original Side Rules of this court Speaking to the minutes of a decree or order which the defendant no.2 also did not avail of. It should also be mentioned that the alteration of the figure of the area is not in the nature of an accidental slip or omission by the court which can be corrected at any time after pronouncement of the order. The salutary practice of a court becoming functus officio after a judgment has been delivered is for the benefit of litigants who rely upon the certainty of orders 8 for an effective implementation thereof. There must also be closure of proceedings so that parties can take the next course of action. Litigants cannot remain in a limbo as to the finality of orders and judgments. Samarendra Nath Sinha vs. Krishna Kumar Nag AIR 1967 SC 1440 relied on behalf of the defendant no.2 involved an arithmetic error made by the court by reason whereof Section 151 of the CPC was relied upon and the court was of the view that errors arising from such omissions can be subsequently corrected even after a judgment has been pronounced and signed by the court. The present case however is not one where the so called mistake in the judgment and order dated 11th July 2017 can be reduced to a mistake through inadvertence or oversight and hence capable of being corrected under Section 152 of The Code of Civil Procedure. 12. By reason of the above this court is not inclined to allow the relief claimed in G.A. No. 5018 including for appointment of a Surveyor for measuring the portion of the suit premises which was in occupation of the petitioner. The application is accordingly dismissed without any order as to Urgent Photostat certified copy of this Judgment if applied for be supplied to the parties upon compliance of all requisite formalities Moushumi Bhattacharya J.)

A single cartridge without firearm is a minor ammunition, protected under clause (d) of Section 45 of the Arms Act: Delhi High Court

A single cartridge without firearm is a minor ammunition which is protected under clause (d) of Section 45 of the Arms Act. The possession of the ammunition if unconscious and there was no arm with the accused and there was no threat to anyone, the FIR is quashed, was referred by the Delhi High Court, in case of Manab Kumar Singh v. State & Anr. [CRL.M.C. 485/2020]. Hon’ble Mr. Justice Suresh Kumar Kait stated that the possession of the ammunition in the present case was unconscious and there was no threat to anyone at the airport. The petitioner is having valid Armed License No.01-01/2016, PS-Belhar, UID No.051421000057422017 issued in his name and same has been verified from District Arms Magistrate, Banka, Bihar. The said Arms License is valid till 2021. The petitioner purchased one N.P. Bore (0.32 Bore) Revolver No.FG.78796 from Field Gun, Kanpur (U.P.). The photocopy of the Arms License is annexed with the petition as Annexure-P4 (colly) and petitioner had purchased 40 bullets of .32 bore on 19.04.2017 from Capital Gun House, Patna, Bihar and the said purchase was entered into his arms licence. Moreover, Petitioner was travelling from Delhi to Patna by Jet Airways Flight No.9W 121, STD 16:15 hours vide Seat No.38B. During physical checking of his handbag,01 live and 04 empty fire cartridges of 325 mm Caliber, engraved on the bottom of all the cartridges “32 S & W.L.” were recovered. The concerned CISF personnel informed the local police in this regard and petitioner was brought to IGI Airport Police Station, where an FIR No.319/2018 dated 19.06.2018 under Section 25 Arms Act was registered against the petitioner. It was contended that the alleged bullets remained in his bag inadvertently and he did not have the knowledge that the cartridges have been left in the bag and he came to know about the same at the Airport only when the same were detected by the security personnel during screening of his hand bag. The petitioner duly explained the situation and apprised the investigating officer that it is a case of inadvertent mistake and sheer over-sightedness. The petitioner did not have any intention or requisite mens rea to carry the said cartridges for harming anybody else, the petitioner was let off after sometime. However, the petitioner seeks quashing of FIR No. 319/2018 dated 19.06.2018 registered at Police Station – IGI Airport, New Delhi and all proceedings emanating therefrom. The present petition is filed under Section 482 Cr.P.C. The court stated that in the case in hand, it is not the case of the prosecution that there was any fire arm recovered from the petitioner or there was any threat to anyone at the Airport. Therefore, in the present case, the possession of the ammunition was 5 unconscious and there was no threat to anyone.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 29.01.2020 CRL.M.C. 485 2020 MANAB KUMAR SINGH Through: Mr. Satvinder Singh Adv. Petitioner STATE & ANR. Respondents Through: Mr. Izhar Ahmad APP for State with SI Rajdeep Singh PS IGI Airport and Inspector Vinod PS Bharat HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENTCRL. M.A. 2012 2020 Allowed subject to all just exceptions. Application is disposed of. CRL.M.C. 485 2020 Vide the present petition the petitioner seeks quashing of FIR No. 319 2018 dated 19.06.2018 registered at Police Station IGI Airport New Delhi and all proceedings emanating therefrom. The present petition is filed under Section 482 Cr.P.C. by stating that CRL.M.C.485 2020 the petitioner is having valid Armed License No.01 01 2016 PS Belhar UID No.051421000057422017 issued in his name and same has been verified from District Arms Magistrate Banka Bihar. The said Arms License is valid till 2021. The petitioner purchased one N.P. Bore Revolver No.FG.78796 from Field Gun Kanpur and petitioner had purchased 40 bullets of .32 bore on 19.04.2017 from Capital Gun House Patna Bihar and the said purchase was entered into his arms licence at Page No.25. It is submitted that petitioner was travelling from Delhi to Patna by Jet Airways Flight No.9W 121 STD 16:15 hours vide Seat No.38B. During physical checking of his handbag 01 live and 04 empty fire cartridges of 325 mm Caliber engraved on the bottom of all the cartridges “32 S & W.L.” were recovered and the concerned CISF personnel informed the local police in this regard and petitioner was brought to IGI Airport Police Station where an FIR No.319 2018 dated 19.06.2018 under Section 25 Arms Act was registered against the petitioner. It is contended that petitioner holds a valid armed License No.01 01 2016 Police Station Belhar UID No.051421000057422017 and the CRL.M.C.485 2020 recovered cartridges belonged to his licensed weapon and the license is valid in the State of Bihar only. He further states that the alleged bullets remained in his bag inadvertently and he did not have the knowledge that the cartridges have been left in the bag and he came to know about the same at the Airport only when the same were detected by the security personnel during screening of his hand bag. Petitioner was then subjected to interrogation wherein the petitioner duly explained the situation and apprised the investigating officer that it is a case of inadvertent mistake and sheer oversightness. Since the petitioner did not have any intention or requisite mens rea to carry the said cartridges for harming anybody else the petitioner was let off after sometime. Thereafter the investigating agency proceeded to file a charge sheet final report before the Ld. Additional Chief Metropolitan Magistrate Patiala House Courts New Delhi for prosecuting the petitioner only under Section 30 of the Arms Act as Section 25 thereof was deleted. 7. While arguing the case for the petitioner learned counsel for the petitioner has relied upon decision of this Court delivered in Chan Hong Saik vs. State and Anr. 2012 DRJ 504 whereby the Court opined that a single cartridge CRL.M.C.485 2020 without firearm is a minor ammunition which is protected under clauseof Section 45 of the Arms Act. In addition to above learned counsel also relied upon the other cases decided by different High Court giving the same opinion. However the fact remains that the judgment delivered by this Court dated 02.07.2012 was referred to the larger Bench and vide judgment dated 06.01.2016 in case of Dharmendra vs. State in CRL.M.C. 4493 2015 the Court opined that single cartridge is ammunition and comes under the Arms Act 1959. The fact remains that this Court in Chan Hong Saikquashed the FIR by holding that a single cartridge without firearm is a minor ammunition which is protected under clause of Section 45 of the Arms Act. The larger Bench referred above did not agree with the opinion of this Court but however opined that the possession of the ammunition was unconscious and there was no arm with the accused and there was no threat to anyone therefore this Court has rightly quashed the FIR. In the case in hand it is not the case of the prosecution that there was any fire arm recovered from the petitioner or there was any threat to anyone at the Airport. 11. Thus in the present case also the possession of the ammunition was CRL.M.C.485 2020 unconscious and there was no threat to anyone. 12. Accordingly for the reasons afore recorded the FIR No. 319 2018 dated 19.06.2018 registered at Police Station IGI Airport New Delhi and all proceedings emanating therefrom are hereby quashed. 13. The petition is allowed and disposed of accordingly. Dasti. JANUARY 29 2020 SURESH KUMAR KAIT) CRL.M.C.485 2020

The Central Government by enacting The Transgender Persons (Protection of Rights) Act, 2019 Should be liberally interpreted: Allahabad High Court

Central Government by enacting The Transgender Persons (Protection of Rights) Act, 2019 is a socially beneficial legislation, and therefore this Act cannot be given an interpretation that would defeat the very purpose for which the Act was brought into force. Such an observation was made by the Hon’ble Allahabad High Court before Hon’ble Justice Vivek Chaudhary in the matter of Shivanya Pandey vs State Of U.P Thru Prin Secy Secondary Edu Lko & Ors [MISC. SINGLE No. – 26611 of 2017] on 26.11.2021 The facts of the case were that the petitioner with earlier name Vikas Pandey and gender as male appeared and passed High School on 10.06.2011 from the Children Academy Public School, Lucknow affiliated to the U.P. Board and Intermediate in the year 2013 from the Lucknow Public Collegiate, Lucknow affiliated to the CISE Board. Petitioner was suffering from gender dysphoria and, therefore, underwent gender reassignment surgery on 23.10.2017 from male to female at Fortis Hospital, New Delhi. On 27.05.2017, the petitioner got published a gazette notification in respect of the change of her name from ‘Vikas Pandey’ to ‘Shivanya Pandey’ and gender from ‘male’ to ‘female’. Petitioner also got an Aadhar card and pan card issued in her new name and gender i.e. Shivanya Pandey, female. Now the petitioner is required to change the same in her school certificates also. For the said purpose, the petitioner has made a representation to different on different dates but no resolution was passed. Thus, the instant petition is preferred. The Hon’ble High Court observed that “ has to be interpreted in a manner that solemn purpose for which it is legislated is achieved. The purpose is to give recognition to transgender persons as they perceived themselves and, in case, they undergo a gender reassignment procedure, to provide them appropriate changed certificates and identity documents. Therefore, Section 7 of the Act cannot be given a meaning confined in the manner argued by learned Standing Counsel.” Additionally, the Hon’ble High Court made an observation that Section 7 should be interpreted in a manner that the transgender persons who are issued a certificate under Section 6 or persons like petitioner who had undergone the gender re-assignment procedure prior to coming into force of the Act, both are held entitled to apply before the District Magistrate for issuance of a certificate indicating a change in gender.  Finally, the Hon’ble High Court allowed the instant petition. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that the petitioner with earlier name Vikas Pandey and gender as male appeared and passed High School on 10.06.2011 from the Children Academy Public School, Lucknow affiliated to the U.P. Board and Intermediate in the year 2013 from the Lucknow Public Collegiate, Lucknow affiliated to the CISE Board. Petitioner was suffering from gender dysphoria and, therefore, underwent gender reassignment surgery on 23.10.2017 from male to female at Fortis Hospital, New Delhi. On 27.05.2017, the petitioner got published a gazette notification in respect of the change of her name from ‘Vikas Pandey’ to ‘Shivanya Pandey’ and gender from ‘male’ to ‘female’. Petitioner also got an Aadhar card and pan card issued in her new name and gender i.e. Shivanya Pandey, female. Now the petitioner is required to change the same in her school certificates also. For the said purpose, the petitioner has made a representation to different on different dates but no resolution was passed. Thus, the instant petition is preferred. The Hon’ble High Court observed that “ has to be interpreted in a manner that solemn purpose for which it is legislated is achieved. The purpose is to give recognition to transgender persons as they perceived themselves and, in case, they undergo a gender reassignment procedure, to provide them appropriate changed certificates and identity documents. Therefore, Section 7 of the Act cannot be given a meaning confined in the manner argued by learned Standing Counsel.” Additionally, the Hon’ble High Court made an observation that Section 7 should be interpreted in a manner that the transgender persons who are issued a certificate under Section 6 or persons like petitioner who had undergone the gender re-assignment procedure prior to coming into force of the Act, both are held entitled to apply before the District Magistrate for issuance of a certificate indicating a change in gender.  Finally, the Hon’ble High Court allowed the instant petition. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court observed that “ has to be interpreted in a manner that solemn purpose for which it is legislated is achieved. The purpose is to give recognition to transgender persons as they perceived themselves and, in case, they undergo a gender reassignment procedure, to provide them appropriate changed certificates and identity documents. Therefore, Section 7 of the Act cannot be given a meaning confined in the manner argued by learned Standing Counsel.” Additionally, the Hon’ble High Court made an observation that Section 7 should be interpreted in a manner that the transgender persons who are issued a certificate under Section 6 or persons like petitioner who had undergone the gender re-assignment procedure prior to coming into force of the Act, both are held entitled to apply before the District Magistrate for issuance of a certificate indicating a change in gender.  Finally, the Hon’ble High Court allowed the instant petition. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble High Court made an observation that Section 7 should be interpreted in a manner that the transgender persons who are issued a certificate under Section 6 or persons like petitioner who had undergone the gender re-assignment procedure prior to coming into force of the Act, both are held entitled to apply before the District Magistrate for issuance of a certificate indicating a change in gender.  Finally, the Hon’ble High Court allowed the instant petition.

Court No. 5 Case : MISC. SINGLE No. 266117 Petitioner : Shivanya Pandey Respondent : State Of U.P Thru Prin Secy Secondary Edu Lko & Ors Counsel for Petitioner : Shubham Tripathi Ali Jibran Aman Khan Suyash Manjul Counsel for Respondent : C.S.C Kirti Srivastava Hon ble Vivek Chaudhary J 1. Heard Sri Mohd. Aman Khan learned counsel for petitioner and learned Standing Counsel for the State. 2. Present writ petition is filed by the petitioner Shivanya Pandey praying that respondent no.2 Board of High School and Intermediate Education Allahabad U.P.)may be directed by this Court to change name and gender of the petitioner in her matriculation mark sheet and thereafter respondent no.3 Council for the Indian Schools Examination New Delhimay also change the name and gender in the mark sheet of intermediate of the petitioner Further a mandamus is also sought commanding the respondent no. 2 and 3 respectively to amend their regulations and guidelines with regard to change of gender and names 3. Facts of the case are that petitioner with her earlier name as Vikas Pandey and gender as male appeared and passed High School on 10.06.2011 from the Children Academy Public School Lucknow affiliated to the U.P. Board and Intermediate in the year 2013 from the Lucknow Public Collegiate Lucknow affiliated to the CISE Board. Petitioner was suffering from gender dysphoria and therefore underwent gender reassignment surgery on 23.10.2017 from male to female at Fortis Hospital New Delhi. On 27.05.2017 petitioner got published a gazette notification in respect of change of her name from Vikas Pandey to Shivanya Pandey and gender from male to female . Petitioner also got an adhar card and pan card issued in her new name and gender i.e. Shivanya Pandey female. With the change of name and gender petitioner now required change of the same in her school certificates also. For the said purposes on 04.06.2017 petitioner applied for the change in her High School mark sheet and certificates. The form required to be filled up for the said purposes had columns for change of name and other details but was silent about the change in gender Petitioner approached different authorities and Director Ministry of Social Justice and Empowerment New Delhi also sent a letter dated 22.06.2017 to the Secretary U.P. Board requesting them to change petitioner s name and gender Since all the required documents were provided by the petitioner the principal of Children Academy Public School also wrote a letter dated 03.07.2017 to the Secretary U.P. Board requesting for a change in petitioner s name and gender The Secretary U.P. Board by a letter dated 14.07.2017 sought a clarification from the State Government as neither the rules nor the Intermediate Education Act 1921 had any provisions with regard to these new circumstances. On a reminder of the Director Ministry of Social Justice and Empowerment New Delhi Director of Secondary Education U.P. also issued a letter dated 17.08.2017 to the State Government requesting it for taking appropriate measures in the matter. Meanwhile the Secretary U.P. Board by letter dated 07.09.2017 also required the petitioner to submit her medical certificate with regard to the gender change issued by the Chief Medical Officer. The State Government vide letter dated 15.07.2017 also communicated its decision and required the Secretary U.P. Board to consider the case of petitioner. The matter in the aforesaid background was placed before the Examination Committee of the U.P. Board. The Examination Committee in its meeting dated 10.01.2018 decided that changes of name and gender as requested by the petitioner cannot be made as neither the Intermediate Education Act 1921 nor regulations framed there under contain any such provision. The decision of the Examination Committee was communicated to the petitioner by letter dated 27.01.2018. By letter dated 02.02.2018 original mark sheet of the petitioner was also returned to her without affecting any changes. In the said background petitioner has approached this Court with the prayers aforesaid 4. Learned counsel for the petitioner submits that with the development of medical science this challenges of conflict in personality and body stands resolved and in the given circumstances it is incumbent upon different authorities to make provisions for change of older records. He relies upon the judgment passed in case of National Legal Services Authority Vs. Union of India & Others reported in 5 SCC 438] Act 2019and by framing rules under the same. Section 2(k) of the aforesaid Act 2(k) "transgender person" means a person whose gender does not match with the gender assigned to that person at birth and includes trans man or trans womanperson with intersex variations genderqueer and person having such socio cultural identities as kinner hijra aravani and jogta 5. Section 3 of the Act prohibits discrimination against any transgender person on the grounds mentioned in the said section which includes: “(a) denial or discontinuation of or unfair treatment in educational establishments and services thereof e) denial or discontinuation of or unfair treatment with regard to access to or provision or enjoyment or use of any goods accommodation service facility benefit privilege or opportunity dedicated to the use of the general public or customarily available to i) the denial of access to removal from or unfair treatment in Government or private establishment in whose care or custody a transgender person may be.” 6. Section 4 of the Act provides a transgender person to have a right to be recognized as such and a transgender person under Section 4(2) of the Transgender Protection Act 2019 is also given a right to self perceived gender identity. Section 5 provides right to transgender person to apply before the District Magistrate by way of an application for issuance of certificate of identity as transgender person in the manner prescribed. Under Section 6 the District Magistrate is required to issue a certificate upon an under Section 5 as per the procedure prescribed. The gender in all official documents is recorded as per certificate issued under Section 6(1). Section 7 provides that in case after issuance of a certificate under Section 6(1) the transgender person undergoes surgery to change gender such person may make an application along with a certificate issued to that effect by the Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery to the District Magistrate for revised certificate in the prescribed manner. On such an application the District Magistrate on being satisfied is required to issue a certificate indicating change in gender and such change would entitle a person to get the required changes made in the birth certificate and other official documents relating their identity. 7. Learned counsel for petitioner submits that as per the judgment of Supreme Court passed in NALSA case(supra) as well as procedure of the Act petitioner is entitled for issuance of appropriate certificate with regard to change of gender. 8. Opposing the same learned Standing Counsel submits that with regard to change of gender the certificate can only be issued under Section 7 of the Act to a person who is having a certificate under Section 6 of the Act. Since petitioner is not having a certificate under Section 6 and had changed his gender before coming into the force of the Act petitioner is not entitled to apply under Section 7 of the Act 9. The very purpose of bringing in force the Act is to provide equality and respect to the transgender persons. The Act is a socially beneficial legislation and therefore this Act cannot be given an interpretation which would defeat the very purpose for which the same is brought in force. It has to be interpreted in a manner that solemn purpose for which it is legislated is achieved. The purpose is to give recognition to transgender persons as they perceived themselves and in case they undergo a gender reassignment procedure to provide them appropriate changed certificates and identity documents. Therefore Section 7 of the Act cannot be given a meaning confined in the manner argued by learned Standing Counsel. Section 7 is required to be interpreted in a manner that the transgender persons who are issued a certificate under Section 6 or persons like petitioner who had undergone the gender re assignment procedure prior to coming into force of the Act both are held entitled to apply before the District Magistrate for issuance of a certificate indicating change in gender. Only on the basis of such a certificate issued by the District Magistrate under Section 7 of the Act the transgender person can apply for change of their birth certificate and other official documents relating to their identity. Denying such a right to persons who had already undergone the gender re assignment procedure would frustrate the very purpose of the Act as large number of persons would be left out discriminated in the society 10. In view of the aforesaid petitioner is permitted to submit an application under Section 7 of the Act before the District Magistrate. The District Magistrate shall broadly following the procedure under the Transgender PersonsAct 2019 and Transgender Persons Rules 2020 get the fact of the gender re assignment verified and on being satisfied issue the required certificate to the petitioner. Such a procedure shall be completed by the District Magistrate within a period of 60 days from the date petitioner applies before him along with a certified copy of this order. On the basis of the certificate issued by the District Magistrate petitioner shall be at liberty to approach the authorities concerned i.e. Respondent no.2 Secretary Board of High School and Intermediate Education Allahabad and respondent no.3 Chairman Council for the Indian Schools Examination New Delhifor changing her educational records and issue her fresh changed mark sheets and certificates. Respondent no.2 and 3 shall also take immediate steps for change of name and gender in educational mark sheets and certificates of the petitioner and issue fresh changed mark sheets and certificates to her as per the certificate issued by the District Magistrate to the petitioner Such an exercise would be completed within a period of four weeks from the date petitioner approaches the Boards along with a certified copy of this order and the certificate issued to her by the District Magistrate 11. With the aforesaid present writ petition stands allowed Order Date : 26.11.2021 Vivek Chaudhary J.)

Issuance of Writ Mandamus Directing the Respondent to Refund the Security deposit can be Maintainable: Assam High Court

The writ petition was filed under Article 226 of the Constitution of India, like Mandamus directing to release the security deposit. A court order Commanding an Inferior authority to perform an Official duty correctly held by the Hon’ble Assam High Court Before the Hon’ble Mr JUSTICE DEVASHIS BARUAH in the matters of Power Grid Associates v. Assam State Electricity Board [WP(C)/2765/2015]. The background of the case arises from the petitioner entered into the three agreements for the deployment of ‘Input base Distribution Franchise’. The Petitioner was appointed as a Franchise to undertake the management of local distribution and revenue collection in the area, assigned to including minor repair and maintenance activities, provision of new service connections, disconnections, and regularization of illegal consumers as detailed in the said agreement, subject to terms and conditions, as stipulated from time to time by the Assam Electricity Regulatory Commission, in a specific area within the Jurisdiction of the Respondent Electricity Company. The petitioner deposited a sum of Rs. 23,20,835/- as a security deposit, to secure the deposit the performance of the petitioner obligation under the agreement. However, the petitioner could not perform its obligation due to various difficulties faced. The General Meeting agreed on certain deliberation and ended with active participation from the Franchises and discom. The difficulties pointed out by the petitioner was not resolved, for which the petitioner requested to release the security deposit amount being submitted to the Respondent Electricity Company. In the agreement, it is mentioned that the Security Deposit amount released was only agreed upon by the Chief Managing Director, APDCL (Assam Power Distribution Company Limited). The Petitioner filed the Writ Petition for the direction of the Respondent authorities to release the Security Deposits amounting to Rs. 23,20,835/-. The court issued notice to the Respondent and haven’t filed any Affidavit-in-opposition. The dispute raised by way of the affidavit filed by the Respondent is regarded as an entitlement of the Respondent Authorities to the claim of the petitioner. Petitioner entitlement to the relief sought by the way of present writ petition cannot be adjudicated upon the ground of the disputed question of facts. The Hon’ble Court concluded that the Notice issued by the was Arbitrary and unreasonable action on part of the Respondent and directed the Respondent Electricity Company to release the said Security deposit within six weeks.  

Page No.# 1 8 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 2765 2015 M S POWER GRID ASSOCIATES NEAR SAT SANGHA VIHAR DULIAJAN P.O. DULIAJAN DIBRUGARH ASSAM PIN 786602. REP. BY ITS PROPRIETOR SRI SANJIB KR. GOGOI M S POWER GRID ASSOCIATES NEAR SAT SANGHA VIHAR DULIAJAN P.O. DULIAJAN DIST. DIBRUGARH ASSAM PIN 786602 ASSAM STATE ELECTRICITY BOARD and 3 ORS BIJULI BHAWAN PALTAN BAZAR GUWAHATI 781001 REP. BY ITS CHAIRMAN ASEB BIJULEE BHAWAN PALTN BAZAR GUWAHATI 781001 2:CHIEF GENERAL MANAGER ASSAM POWER DISTRIBUTION COMPANY LIMITED APDCL UPPER ASSAM ZONE UAZ BIJULI BHAWAN 6TH FLOOR GUWAHATI 781001 BIJULEE BHAWAN PALTAN BAZAR GUWAHATI 781001 4:THE GENERAL MANAGER TINSUKIA ELECTRICAL CIRCLE TINSUKIA Page No.# 2 8 HON’BLE MR. JUSTICE DEVASHIS BARUAH Advocate for the Petitioner: Mr. T. Das Ms. A. Hazarika and Ms. L. Bhuyan Advocate the Respondents: Mr. B. Choudhury Standing Counsel Date of hearing & judgment: 22.12.2021 JUDGEMENT AND ORDERHeard Mr. T. Das learned counsel appearing for the petitioner and Mr. B. Choudhury learned standing counsel appearing for all the respondents 2. This is a petition filed under Article 226 of the Constitution of India seeking a writ in the nature of mandamus for a direction to the respondent authorities to release the security deposit amounting to Rs.23 20 835 only deposited by the petitioner as security deposits towards the three agreements dated 30.01.2010 entered into between the petitioner and the Assam State Electricity Boardthe revenue administration of the feeder will be handled jointly by the franchisee and APDCL for next three months 3. Since the joint operation was extended vide minutes of the meeting dtd 27.03.2010 the bills raised by the IRCA Tinsukia not to be considered After detail and threadbare discussions the members opined that the total bill deposited against M S P.G. Associates should be withdrawn from the outstanding amount of IRCA Tinsukia already accumulated and the security deposit amount of Rs.7 86 051 submitted by M S P.G. Associates against the 11 K.V. Jagun feeder may be released and also recommended the matter of release of security deposit submitted by M S P.G. Enterprise may be placed to CMD APDCL for favour of his kind and 6. In terms of the Clause 3 of the said minutes it was agreed that the security deposit amount of Rs.7 86 051 only may be released and also recommended that the matter of release of the security deposit be placed before the Chief Managing Director APDCL for favour of kind consideration and necessary approval. The learned counsel for the petitioner submits that similar decisions were taken in respect of the other two feeders i.e. Deohal and Ketetang 7. In terms of the said decision the petitioner by the communication dated 24.05.2011 Page No.# 5 8 requested the respondent authorities to release the security deposit amount. Similar prayers were again made on 19.10.2011 and on 04.06.2012 respectively for release of the security deposits against the Jagun Deohal and Ketetang feeders. On 13.06.2012 the General Manager of the respondent Electricity Company directed the Dy. General Manager Tinsukia Electrical Circle UAZ APDCL of the respondent Electricity Company to release the security deposits at the earliest as per the terms and conditions of the agreement executed under the IBDF scheme 8. Thereupon in spite of specific direction by the General Manager of the respondent Electricity Company to release the security deposits amount to the Dy. General Manager Tinsukia Electrical Circle UAZ APDCL the said amount having not released the petitioner has filed the instant writ petition for a direction to the respondent authorities to release the security deposits amounting to Rs.23 20 835 only lying with the respondent 9. This Court on 15.05.2015 issued notice to the respondent Electricity Company as regards the claim of the petitioner in the instant proceeding. Thereupon the respondent Electricity Company did not file any affidavit in opposition for a period of more than three years which led this Court to pass the order dated 25.05.2018 directing the respondent authorities to release the security deposit in favour of the petitioner and fixed the matter on 15.06.2018. It was also observed that in the event of failure of the respondent authority to do so an affidavit was to be filed by the respondent No.2 placing on record the reasons for delay in releasing the security deposits. 10. It is only after the order passed by this Court on 25.05.2018 the respondent authorities Page No.# 6 8 woke up and an affidavit was filed by the respondent No.2 wherein it was categorically admitted that the security deposit amount Rs.23 20 835 only is still lying with the respondent authorities. However said amount has not been paid on the ground that the APDCL is entitled to a much larger amount from the petitioner and as such the non release of the security deposits to the petitioner cannot be said to be arbitrary. In that regard in the said affidavit a statement has been enclosed in a tabular form to contend that the respondent Electricity Company is entitled to an amount of Rs.1 38 77 358 only after deducting the amount of security deposits payable to the petitioner. 11. I have heard the submission of learned counsels for both the parties at length and have also perused the record. There is no denial to the fact that the security deposit amounting to Rs.23 20 835 only is still lying with the respondent Authorities. On a pointed query made to the learned counsel for the respondent Authorities as to whether any notice was issued to the petitioner claiming the said amount as mentioned in the affidavit the learned counsel for the respondent submits that he has no instruction in that regard. He submits that the affidavit filed before this Court is based upon the instructions received from the respondent No.2 and the said amount is claimed on the basis of the statement prepared and sent by the Dy. General Manager Tinsukia Electrical Circle UAZ APDCL. Though the said documents were not made part of the affidavit filed by the respondent No.2 the learned counsel for the respondents has produced those statements before this Court on the basis of which the respondent authorities have made the claim 12. On perusal of the said statements placed before this Court it reveals that in respect of the Jagun feeder the statement was prepared on 17.06.2018 whereas in respect of other Page No.# 7 8 two feeders there is no mention of any date. The dispute which has been raised by way of affidavit filed by the respondent No.2 as regards the entitlement of the respondent authorities vis à vis the claim of the petitioner would be such a dispute whereby the petitioner’s entitlement to the relief sought for by way of the present writ petition cannot be adjudicated upon on the ground of disputed question of facts is the question before this 13. From the affidavit filed by the respondent No.2 and the statement placed before this Court it would go to show that the dispute so sought to be raised by way of the affidavit cannot be regarded as a dispute which would divest the jurisdiction of this Court under Article 226 of the Constitution of India in as much as perusal thereof would go to show that the respondent Electricity Company did not raise a dispute prior to filing of the affidavit by the respondent No.2. There is also no material placed on record that such claim which have been made by the respondent authorities have been communicated to the petitioner. There is also no basis shown on which the said claim of Rs.1 38 77 358 only has been made save and except the statement prepared by the Dy. General Manager Tinsukia Electrical Circle UAZ 14. Under such circumstances merely making a statement in the affidavit that the respondents have claims against the petitioner would not suffice to disentitle the petitioner to his claims as made in the instant writ petition. 15. The stand so far taken by the respondent Electricity Company in the opinion of the Court cannot be said to be bonafide and consequently the retention of the security deposits since Page No.# 8 8 the year 2012 till date in spite of the order being passed by this Court on 25.05.2018 is an arbitrary and unreasonable action on the part of the respondent and consequently this Court therefore direct the respondent Electricity Company to release the said security deposits amounting to Rs.23 20 835 only with a period of six weeks from today 16. The above direction shall not however preclude the respondent authorities to make such claim against the petitioner if they are entitled to the same in accordance with the law 17. The observation made here in above would be restricted only to the entitlement of the petitioner to the security deposits only and the said observation would not affect the respondent authorities’ right if any claim is made against the petitioner before the 18. The instruction produced by Mr. B. Choudhury learned standing counsel for the respondent authorities along with the statement be kept in the record and mark as ‘X’ 19. The writ petition stands disposed of.

Guarantor cannot escape the payment outlined as per the resolution plan: Calcutta High Court

When a resolution plan has been approved by a committee of creditors, it is binding on the guarantor and he cannot escape his obligations outlined in the plan. This was addressed in the case of Gouri Prasad Goenka v State Bank of India [WPO No. 171 of 2021] which was adjudged on 21st June 2021 by a bench consisting of Justice Sabyasachi Bhattacharyya of the Calcutta High Court. The petitioner, Gouri Prasad Goenka is the Director and Promoter of Duncan Industries, additionally he was also the Guarantor for a loans taken by Duncan Industries from State Bank of India. Upon default of the payement, the petitioner was issued two show cause notices from SBI asking him for a reason why he should not be declared a wilful defaulter.  One notice was addressed to him in his capacity as director of Duncan Industries and the other notice in his capacity as the guarantor. The petitioner contended that an Interim Resolution Professional was appointed over the company from March 2020 and the power of its board of directors stood suspended in terms of Section 17(1)(b) of the Insolvency and Bankruptcy Code. A moratorium was also declared under section 14 of the IBP prohibiting suits or proceedings against the debtor. As a result of this, the petitioner contended that wilful defaulter proceedings should not be instituted against the director of the company. The respondents countered that as per the Kotak Mahindra Bank Limited v Hindustan National Glass & Industries limited [(2013) 7 SCC 369] judgement, a wilful defaulter proceeding was meant to disseminate credit information and not for the recovery of property. Hence the moratorium cannot debar the proceeding for declaration of wilful defaulter. The court noted that it is evident that there lies no flaws in the notices and that the petitioner was given adequate oppurtunities to submit a suitable response asper Clause 2.6 of the RBI Master Circular. It was also noted that apphrehension of a future resolution plan which is yet to materialise cannot absolve the petitioner in his capacity of either director or guarantor from the liability incurred.

The Hon’ble Justice Sabyasachi Bhattacharyya In The High Court at Calcutta Constitutional Writ Jurisdiction Original Side WPO No. 1721 Gouri Prasad Goenka Vs. State Bank of India For the petitioner For the State Bank of India Hearing concluded on Judgment on The Court: : Mr. Jishnu Saha Mr. Ishaan Saha Ms. Sananda Ganguli Mr. Om Narayan Rai Mr. Saikat Ray Chowdhury The writ petitioner has challenged two notices respectively dated February 26 2021 and March 2 2021 both issued under the signature of Deputy General Manager of the State Bank of Indiaof Duncans Industries Ltd. The notices have been issued for the petitioner to show cause as to why the petitioner shall not be declared as wilful defaulter on the grounds as mentioned in the said notices. Submissions in writing were also sought in the show cause notices from the petitioner. Learned counsel for the petitioner argues that the first notice dated February 26 2021 addressed to the petitioner as guarantor of Duncans was without jurisdiction inasmuch as it fails to satisfy the requirements of Clause 2.6 of the Reserve Bank of India Master Circular on Wilful Defaulters dated July 1 2016 which resulted in commencement of a Corporate Insolvency Resolution Processof the company which is still pending. An Interim Resolution Professionalwas appointed over the company on and from March 5 2020 and the power of its Board of Directors stood suspended in terms of Section 17(1)(b) of the IBC. A moratorium was also declared under Section 14 of the IBC prohibiting inter alia the institution or continuation of suits or proceedings against the corporate debtor company. Hence no proceeding could be instituted or continued for declaration of wilful defaulter in respect of the company itself for which no notice was served on it. 5. Broadly arguing that the object and purpose of the IBC is resolution of corporate insolvency learned counsel for the petitioner argues that since no notice of wilful default was or could in law be served on the company itself by the same logic no such notice could also be served on its suspended promoter director. Learned counsel relies on Committee of Creditors of Essar Steel India Limited through Authorised signatory Vs. Satish Kumar Gupta and others reported at 8 SCC 531 in support of the proposition that the resolution of corporate insolvency extinguishes the debts of the corporate debtor. Learned counsel for the petitioner next cites the case of Gaurav Dalmia Vs. Reserve Bank of India reported at 2020 SCC OnLine Cal 668 in support of the proposition that once the alleged default of the company itself is extinguished by virtue of a corporate resolution the ‘wilful defaulter’ tag of all the promoters and directors in such capacity only for the same default had to go. It is reiterated by counsel that pending the resolution of corporate insolvency of the company the suspended directors cannot be proceeded against prematurely for declaration of wilful defaulter. Learned counsel for the petitioner next contends that a One Time Settlement proposal of the company had been accepted by the respondent Bank and was sanctioned on September 30 2019. It is admitted that after making some payments under the OTS the company could not make further payment. However the ground for stopping payment is inter alia cited to be admission of the petition under Section 7 of the IBC and imposition of moratorium under Section 14 of the IBC. Even thereafter the Bank continued to extend the time for payment under the OTS which could not be honoured in view of the subsistence of the aforesaid proceeding and moratorium. 10. The petitioner filed written notes of arguments against which the respondent SBI has also filed similar notes. Subsequently a rejoinder written note was filed on behalf of the SBI in view of additional judgments having been relied on by the writ petitioner in its notes to which a further response in writing was given by the petitioner. 11. Learned counsel for the Bank argues that the writ petition is premature being directed against show cause notices which do not create any cause of action or infringe any legal right of the petitioner. 12. In this context learned counsel places reliance on State of Uttar Pradesh Vs. Brahm Dutt Sharma and Another reported at 2 SCC 179 and Trade Tax Officer Saharanpur Vs. Royal Trading Company reported at11 SCC 518. The ratio laid down in the said judgments is that there ought not to be interference by High Courts under Article 226 of the Constitution of India at the show cause stage. 13. In support of the argument that issuance of a show cause notice does not infringe any right of the petitioner since the Identification Committeecan always drop the proceedings if the same is without merits after considering the representation of the alleged defaulter learned counsel for the bank cites Secretary Ministry of Defence and Ors. Vs. Prakash Chandra Mirdha reported at11 SCC 565. 14. Learned counsel for the respondent Bank next cites Kejriwal Mining Pvt. Ltd and Ors. Vs. Allahabad bank and Anr. reported at 2020 SCC OnLine Cal 1250 to argue that the IC order does not attain finality until the same is scrutinised by the Review Committeeand Union of India Vs. Pawan Kumar Patodia both unreported Division Bench judgments of this Court learned counsel contends that the Division Bench clearly found that even if the wilful defaulter notice was issued under the signature of the Deputy General Manager but the decision and consideration was by the Wilful Defaulter Identification Committee such fact does not invalidate the notice itself. Moreover it was held that no factual consideration can be undertaken by the writ court at the show cause stage. 16. It is further contended by the respondent Bank that even if the authority having the power to decide a particular issue wrongly or improperly issues a show cause notice corrigible by the same authorityor a higher authorityit would at best be an error within and not without jurisdiction since the authority is deemed to have jurisdiction to issue the same. In support of such proposition learned counsel for the Bank places reliance on Official Trustee West Bengal and Others Vs. Sachindra Nath Chatterjee and Another reported at AIR 1969 SC 823. 17. By placing reliance on Kotak Mahindra Bank Limited Vs. Hindustan National Glass & Industries Limited and Ors. reported at7 SCC 369 learned counsel for the Bank submits that a wilful defaulter proceeding is to disseminate credit information and not for recovery of property. As such the moratorium or institution of a proceeding under Sections 14 and 7 of the IBC respectively does not debar a proceeding for declaration of wilful defaulter. 18. Learned counsel for the Bank relies on Manish Kumar Vs. Union of India and Another reported at 2021 SCC OnLine SC 30 for the proposition that wrong doers are not allowed to get away by virtue of Section 32A of the IBCbut the said section was inserted in order to attract resolution applicants. 19. As far as the additional judgments cited by the petitioner the first of such is that of Ghanashyam Mishra and Sons Private Limited through the Authorized Signatory Vs. Edelweiss Asset Reconstruction Company Limited through the Director & Ors. reported at 2021 SCC OnLine SC 313 which approved the ratio laid down in Essar Steel1 SCC 1 the petitioner contends that issuance of show cause itself without authority of law or interference by the writ court and there is no question of alternative remedy being a bar. 22. Next relying on State Bank of India Vs. M s Jah Developers Pvt. Ltd. & Ors reported at 6 SCC 787 the petitioner argues that the revised Circular of the RBI was issued in public interest and ought to be read reasonably. 23. Such additional contentions are sought to be distinguished by learned counsel for the respondent in the context of the present case. 24. As far as the first question is concerned it is ex facie clear from the materials on record that the writ petition is premature since no right of the petitioner has been infringed by issuance of the show cause notice. The grounds for such notices were clearly enumerated in both impugned notices and the petitioner was given sufficient opportunity as per the RBI Master Circular to give representation against the notice. 25. That apart it is evident from the impugned notices that those were merely communications as per the “orders and directions of the Committee” taken after consideration of the conduct of the account and utilization of credit facilities by the defaulter company which exercise was duly undertaken by the IC itself and not the Deputy General Manager. 26. The petitioner in the said notices was given opportunity to make submissions in writing within 15 days from the date of the notices and it was clearly mentioned that the IC would pass necessary orders thereupon. The entire preceding and proposed actions referred to in both the notices were taken by the IC which had ample jurisdiction to do so under the RBI Master Circular. As such the Deputy General Manager merely communicated the show cause notices to the petitioner and did not intrude into the jurisdiction of the IC in any manner whatsoever. Thus placing reliance on the dual Division Bench judgments of Union Bank of Indiait can safely be held that the issuance of the notice by the Deputy General Manger ipso facto did not invalidate the notice. 27. Since M s Atlantic Projects relied on orders passed by a learned Single Judge in connection with the Union Bank of India matter which were overruled by implication in the Division Bench judgments passed in appeals against such orders of the learned Single Judge the law laid down by the Division Bench has to be taken as the final pronouncement on the issue which supports the above 28. It is obvious that the writ court cannot go into a factual consideration of the merits of the allegations made in the notices at the show cause stage particularly since there is no flaw in the notices and the petitioner was given adequate opportunity to make written submissions in response thereof thus adhering strictly to the letter and spirit of Clause 2.6 of the RBI Master Circular. 29. The first impugned notice dated February 26 2021 cannot be held to be vitiated merely by absence of specific mention of prior refusal by the petitioner as guarantor to honour his liability in such capacity. That apart the legal fiction of dual capacity of the petitioner that is as a guarantor on the one hand and as a promoter whole time director on the other ought to be pierced in view of the petitioner being in charge of the management of the defaulting company at the relevant period. A person at the helm of affairs during the period when the alleged default was committed is squarely an officer who is in default as provided in Section 2(60) of the Companies Act 2013. 30. Mere apprehension of a future resolution of the corporate insolvency by way of a prospective Resolution Plan which is yet to materialize cannot absolve the petitioner in the capacity of either guarantor or promoter whole time director from the liability for such default. 31. The language of Section 14 of the IBC is very clear as to its object and purpose which is to attract resolution applicants to make offers to facilitate corporate resolution of Initiation or continuation of recovery proceeding against the corporate debtor itself during such resolution would prove counter productive to such 32. However whole time directors and promoters who were in charge of the affairs of the defaulting company during the relevant period when the default was committed cannot be said to be absolved of their act of wilful default committed prior to final approval and acceptance of a resolution plan. 33. Moreover Section 14(3)(b) of the IBC clearly carves out an exception for a surety in a contract of guarantee to a corporate debtor from the purview of such moratorium which governs the writ petitioner in the present case. 34. Unlike certain statutes which provide for mandatory statutory pleadings the RBI Master Circular does not contemplate any mandatory averment in the show cause notice regarding prior refusal to honour liability by the guarantor. Hence the impugned notices would not be vitiated even if specific allegations to that effect were absent therein. 35. As regards satisfaction of the requirements of the Clauses of the RBI Master Circular on merits in a particular case it depends upon a factual consideration first by the IC and then the RC for the ‘wilful defaulter’ label to be attached finally and cannot be adjudicated prematurely by the writ court at the stage of show cause. 36. The moratorium envisaged in Section 14 of the IBC creates no hindrance to a wilful defaulter declaration proceeding which as held by the Supreme Court in several judgments is “to disseminate credit information pertaining to wilful defaulters for cautioning banks and financial institutions so as to ensure that further bank finance is not made available to them” and not for recovery of debts or assets of the corporate debtor which could hamper the corporate resolution 37. Thus a wilful defaulter proceeding does not come within the contemplation of Section 14 of the IBC which primarily pertains to legal actions to foreclose recover or enforce security interest or recovery of any property or the debt in question. 38. An act of wilful default if committed by a promoter whole time director guarantor of the corporate debtor who was in charge at the relevant period is not obliterated automatically by the filing of an application under Section 7 of the IBC. 39. In Gaurav Dalmiathis court considered the question as to the effect of approval of a resolution plan. If such a plan is approved and thereafter a show cause notice is issued the factual scenario would be entirely different from the present case where no such resolution plan has been approved as yet and the CIRP is only at an initial stage. The declaration of a whole time director promoter or a guarantor as wilful defaulter cannot adversely affect the resolution process in any manner whatsoever. Rather the purpose of such declaration of wilful defaulter as indicated in the RBI Master Circular itself is to disseminate credit information for cautioning banks and financial institutions and has no nexus with recovery of the debt. 40. Moreover Section 32A had not been inserted by amendment in the IBC on the date when hearing was concluded in the matter of Gaurav Dalmiain paragraph no. 105 thereof stipulates that the guarantor cannot escape payment as the Resolution Plan itself may so provide although a successful resolution applicant starts on a fresh slate after such resolution as indicated in paragraph no.107 of the said report. 43. In view of the above discussions no fault can be found with the issuance of the impugned show cause notices to justify judicial interference therewith. Accordingly the writ petition fails. 44. WPO 171 of 2021 is dismissed on contest without any order as to costs. However it is made clear that the merits of the wilful defaulter declaration proceeding against the petitioner have not been gone into by this Court and the observations made in this order are all tentative restricted to the limited ambit of deciding the validity and legality of 13 the impugned show cause notices. Such observations will thus not prejudice the rights and contentions of either of the parties in the wilful defaulter declaration proceeding. 45. In view of the instant writ petition being sub judice till passing of this order due to no fault of the writ petitioner the time limit for filing of representation by the petitioner by way of written submissions in response to the impugned show cause notices is extended for the ends of justice for a further period of 15 days from this date. However such time limit is peremptory and in the event the same is not adhered to strictly by the writ petitioner the respondent will be free to take subsequent steps in respect of the wilful declaration proceeding in accordance with law. 46. Urgent certified copies of this order shall be supplied to the parties applying for the same upon due compliance of all requisite Sabyasachi Bhattacharyya J. )

Mahanagar Telephone Nigam Ltd Vs Canara Bank

The Group of Companies doctrine indicates the implied consent to an agreement to arbitrate, in the context of modern multi-party business transactions. In 1992, Mahanagar Telephone Nigam Limited (“MTNL”) floated 17% non-cumulative secured redeemable bonds worth Rs. 425 crores. On February 10, 1992, after executing a Memorandum of Understanding with Can Bank Financial Services Limited (“CANFINA”), MTNL placed bonds worth Rs.200 crores with CANFINA through the form of a fixed deposit (“Bonds”).CANFINA paid around Rs. 50 crores of the fixed deposit, however, since the balance amount was yet to paid, MTNL serviced the Bonds to a partial extent.Soon after the Bonds were subscribed, there was an outbreak of a security scam which led to a collapse of the secondary market in shares, security, and bonds. One of the consequences of the security scam was that CANFINA was facing a liquidity crunch and as a result, Canara Bank, being the parent concern of CANFINA, purchased a face value of Rs. 80 crores worth of Bonds issued by MTNL from CANFINA.Canara Bank upon purchasing the Bonds from CANFINA requested MTNL to register the Bonds in their name, however MTNL refused to do the same. It was only on February 16, 2019, that MTNL informed Canara Bank that it had registered a part of the Bonds having a face value of Rs. 40 crores in favour of CANFINA, however, MTNL had retained the bond instruments due to a failure on part of CANFINA to deposit the balance money. Subsequently, MTNL cancelled the Bonds on October 20, 1993 on the ground that that the letters of consideration were with CANFINA.  Being aggrieved by the actions of MTNL, Canara Bank filed a Writ Petition to challenge the cancellation of the Bonds, wherein CANFINA was arrayed as a proforma party.The High Court initially dismissed the Writ Petition on the ground that the parties had a recourse to alternate remedies and asked the Union of India to resolve the dispute as per the decision of O.N.G.C. v. Commissioner of Central Excise. Due to the other alternate remedies available to the parties to resolve their dispute, the Writ Petition was never adjudicated upon initially, and the parties were given the liberty to revive the Writ Petition in the event that the parties were not able to resolve their dispute through the use of the alternate remedies. One of the alternate remedies that the parties had resorted to was the Committee of Disputes, which the parties were referred to by the High Court on May 30, 2008.The Committee of Disputes was of the opinion that all three parties must take the recourse of arbitration due to the different interlinked transactions between them and execute an arbitration agreement under the Arbitration and Conciliation Act, 1996 (“Act”) to resolve the dispute expeditiously. Canara Bank even prepared a draft arbitration agreement, which had CANFINA, MTNL and Canara Bank as the parties to the agreement and waited for MTNL to execute the agreement.In the meantime, the Supreme Court through the decision of Electronics Corporation of India Ltd. v. Union of India & Ors.7 overruled the decision of O.N.G.C. v. Commissioner of Central Excise  and as a result the Writ Petition was finally revived after Canara Bank moved an application to revive the same. During the proceedings before the High Court, the parties agreed to refer the matter to arbitration on September 16, 2011 and a sole arbitrator was appointed on October 21, 2011. The sole arbitrator issued a notice to all three parties, however, Canara Bank raised an objection before the arbitrator with regards to the joinder of CANFINA as a party to the arbitration. The arbitrator passed an interim award wherein it was held that since CANFINA was not present before the High Court on September 16, 2011, when the parties were referred to arbitration, and as a result CANFINA had not agreed to be a party to the arbitration. In 1992, Mahanagar Telephone Nigam Limited (“MTNL”) floated 17% non-cumulative secured redeemable bonds worth Rs. 425 crores. On February 10, 1992, after executing a Memorandum of Understanding with Can Bank Financial Services Limited (“CANFINA”), MTNL placed bonds worth Rs.200 crores with CANFINA through the form of a fixed deposit (“Bonds”).CANFINA paid around Rs. 50 crores of the fixed deposit, however, since the balance amount was yet to paid, MTNL serviced the Bonds to a partial extent. Soon after the Bonds were subscribed, there was an outbreak of a security scam which led to a collapse of the secondary market in shares, security, and bonds. One of the consequences of the security scam was that CANFINA was facing a liquidity crunch and as a result, Canara Bank, being the parent concern of CANFINA, purchased a face value of Rs. 80 crores worth of Bonds issued by MTNL from CANFINA. Canara Bank upon purchasing the Bonds from CANFINA requested MTNL to register the Bonds in their name, however MTNL refused to do the same. It was only on February 16, 2019, that MTNL informed Canara Bank that it had registered a part of the Bonds having a face value of Rs. 40 crores in favour of CANFINA, however, MTNL had retained the bond instruments due to a failure on part of CANFINA to deposit the balance money. Subsequently, MTNL cancelled the Bonds on October 20, 1993 on the ground that that the letters of consideration were with CANFINA.  Being aggrieved by the actions of MTNL, Canara Bank filed a Writ Petition to challenge the cancellation of the Bonds, wherein CANFINA was arrayed as a proforma party. The High Court initially dismissed the Writ Petition on the ground that the parties had a recourse to alternate remedies and asked the Union of India to resolve the dispute as per the decision of O.N.G.C. v. Commissioner of Central Excise. Due to the other alternate remedies available to the parties to resolve their dispute, the Writ Petition was never adjudicated upon initially, and the parties were given the liberty to revive the Writ Petition in the event that the parties were not able to resolve their dispute through the use of the alternate remedies. One of the alternate remedies that the parties had resorted to was the Committee of Disputes, which the parties were referred to by the High Court on May 30, 2008. The Committee of Disputes was of the opinion that all three parties must take the recourse of arbitration due to the different interlinked transactions between them and execute an arbitration agreement under the Arbitration and Conciliation Act, 1996 (“Act”) to resolve the dispute expeditiously. Canara Bank even prepared a draft arbitration agreement, which had CANFINA, MTNL and Canara Bank as the parties to the agreement and waited for MTNL to execute the agreement. In the meantime, the Supreme Court through the decision of Electronics Corporation of India Ltd. v. Union of India & Ors.7 overruled the decision of O.N.G.C. v. Commissioner of Central Excise  and as a result the Writ Petition was finally revived after Canara Bank moved an application to revive the same. During the proceedings before the High Court, the parties agreed to refer the matter to arbitration on September 16, 2011 and a sole arbitrator was appointed on October 21, 2011. The sole arbitrator issued a notice to all three parties, however, Canara Bank raised an objection before the arbitrator with regards to the joinder of CANFINA as a party to the arbitration. The arbitrator passed an interim award wherein it was held that since CANFINA was not present before the High Court on September 16, 2011, when the parties were referred to arbitration, and as a result CANFINA had not agreed to be a party to the arbitration. ISSUE BEFORE THE COURT: The issue has been raised by Respondent No. 1 Canara Bank that the Order dated 16.09.2011 and 21.10.2011 is between Canara Bank and MTNL. Respondent No. 2 CANFINA, is not a party to the arbitration agreement, and hence cannot be impleaded in the proceedings. RATIO OF THE COURTAs per the principles of contract law, an agreement entered into by one of the companies in a group, cannot be binding on the other members of the same group, as each company is a separate legal entity which has separate legal rights and liabilities. The parent, or the subsidiary company, entering into an agreement, unless acting in accord with the principles of agency or representation, will be the only entity in a group, to be bound by that agreement. Similarly, an arbitration agreement is also governed by the same principles, and normally, the company entering into the agreement, would alone be bound by it.A non-signatory can be bound by an arbitration agreement on the basis of the Group of Companies doctrine, where the conduct of the parties evidences a clear intention of the parties to bind both the signatory as well as the non-signatory parties. Courts and tribunals have invoked this doctrine to join a non-signatory member of the group, if they are satisfied that the non-signatory company was by reference to the common intention of the parties, a necessary party to the contract.The Group of Companies doctrine indicates the implied consent to an agreement to arbitrate, in the context of modern multi-party business transactions. The circumstances in which the Group of Companies Doctrine could be invoked to bind the non-signatory affiliate of a parent company, or inclusion of a third party to an arbitration, if there is a direct relationship between the party which is a signatory to the arbitration agreement; direct commonality of the subject matter; the composite nature of the transaction between the parties. A composite transaction refers to a transaction which is inter-linked in nature; or, where the performance of the agreement may not be feasible without the aid, execution, and performance of the supplementary or the ancillary agreement, for achieving the common object, and collectively having a bearing on the dispute.The Group of Companies Doctrine has also been invoked in cases where there is a tight group structure with strong organizational and financial links, so as to constitute a single economic unit, or a single economic reality. In such a situation, signatory and non-signatories have been bound together under the arbitration agreement. This will apply in particular when the funds of one company are used to financially support or re-structure other members of the group.Coming to the facts of the present case, CANFINA was set up as a wholly owned subsidiary of Canara Bank. There is a clear and direct nexus between the issuance of the Bonds, its subsequent transfer by CANFINA to Canara Bank, and the cancellation by MTNL, which has led to disputes between the three parties. Therefore, CANFINA is undoubtedly a necessary and proper party to the arbitration proceedings.The present case is one of implied or tacit consent by Respondent No. 2 CANFINA to being impleaded in the arbitral proceedings, which is evident from the conduct of the parties. Court found that Respondent No. 2 CANFINA has throughout participated in the proceedings before the Committee on Disputes, before the Delhi High Court, before the Sole Arbitrator, and was represented by its separate Counsel before this Court in the present appeal. There was a clear intention of the parties to bind both Canara Bank, and its subsidiary CANFINA to the proceedings. In this case, there can be no final resolution of the disputes, unless all three parties are joined in the arbitration. As per the principles of contract law, an agreement entered into by one of the companies in a group, cannot be binding on the other members of the same group, as each company is a separate legal entity which has separate legal rights and liabilities. The parent, or the subsidiary company, entering into an agreement, unless acting in accord with the principles of agency or representation, will be the only entity in a group, to be bound by that agreement. Similarly, an arbitration agreement is also governed by the same principles, and normally, the company entering into the agreement, would alone be bound by it. A non-signatory can be bound by an arbitration agreement on the basis of the Group of Companies doctrine, where the conduct of the parties evidences a clear intention of the parties to bind both the signatory as well as the non-signatory parties. Courts and tribunals have invoked this doctrine to join a non-signatory member of the group, if they are satisfied that the non-signatory company was by reference to the common intention of the parties, a necessary party to the contract. The Group of Companies doctrine indicates the implied consent to an agreement to arbitrate, in the context of modern multi-party business transactions. The circumstances in which the Group of Companies Doctrine could be invoked to bind the non-signatory affiliate of a parent company, or inclusion of a third party to an arbitration, if there is a direct relationship between the party which is a signatory to the arbitration agreement; direct commonality of the subject matter; the composite nature of the transaction between the parties. A composite transaction refers to a transaction which is inter-linked in nature; or, where the performance of the agreement may not be feasible without the aid, execution, and performance of the supplementary or the ancillary agreement, for achieving the common object, and collectively having a bearing on the dispute. The Group of Companies Doctrine has also been invoked in cases where there is a tight group structure with strong organizational and financial links, so as to constitute a single economic unit, or a single economic reality. In such a situation, signatory and non-signatories have been bound together under the arbitration agreement. This will apply in particular when the funds of one company are used to financially support or re-structure other members of the group. Coming to the facts of the present case, CANFINA was set up as a wholly owned subsidiary of Canara Bank. There is a clear and direct nexus between the issuance of the Bonds, its subsequent transfer by CANFINA to Canara Bank, and the cancellation by MTNL, which has led to disputes between the three parties. Therefore, CANFINA is undoubtedly a necessary and proper party to the arbitration proceedings. The present case is one of implied or tacit consent by Respondent No. 2 CANFINA to being impleaded in the arbitral proceedings, which is evident from the conduct of the parties. Court found that Respondent No. 2 CANFINA has throughout participated in the proceedings before the Committee on Disputes, before the Delhi High Court, before the Sole Arbitrator, and was represented by its separate Counsel before this Court in the present appeal. There was a clear intention of the parties to bind both Canara Bank, and its subsidiary CANFINA to the proceedings. In this case, there can be no final resolution of the disputes, unless all three parties are joined in the arbitration. DECISION HELD BY COURT: The appeals were partly allowed. Court invoked the Group of Companies doctrine, to join Respondent No. 2 CANFINA i.e. the wholly owned subsidiary of Respondent No. 1 Canara Bank, in the arbitration proceedings pending before the Sole Arbitrator. The matter was remitted to the Sole Arbitrator to continue with the arbitral proceedings, and conclude the same as expeditiously as possible.

1. The present Special Leave Petitions have been filed to of 1995 Order dated 21.10.2011 passed in C.M. No. 122311 Order dated 05.07.2013 passed in C.M. No. 8100 of 2012 and Order dated 10.01.2014 passed in C.M. No. 324 2.1. In 1992 MTNL floated 17% Non­Cumulative Secured Redeemable Bonds described as the VI Series worth Rs. 425 crores. On 10.02.1992 MTNL Services Ltd. under interest was not paid by CANFINA to MTNL. As a through. Against payment of Rs. 50 crores received from CANFINA MTNL serviced the bonds of approximately Rs. 31 2.2. As per Canara Bank soon after the bonds were subscribed collapse of the secondary market in shares security and Even such buyers were offering very low prices for these 2.3. In these circumstances Respondent No. 1 Canara Bank 2.5. MTNL vide letter dated 14.10.1992 addressed to Canara Bank refused to transfer the Bonds on the various grounds 2.6. MTNL by a subsequent letter dated 16.02.1993 informed of Rs. 40 crores in favour of CANFINA. The bond instruments were however retained on the ground that CANFINA had failed to pay the deposit money of Rs. 150 2.7. MTNL vide letter dated 20.10.1993 cancelled all the Bonds inter alia on the ground that letters of consideration 2.8. Canara Bank vide its reply dated 13.01.1994 contended 2.9. MTNL sent a statement of accounts by adjusting the thereon cannot be refunded. MTNL with its letter dated 13.01.1994 attached a cheque for Rs. 5 41 17 463 as the Canara Bank however returned the cheque vide letter dated 10.02.1994 demanding the restoration and the Delhi High Court to challenge the cancellation of the It is relevant to note that CANFINA was joined as a The Delhi High Court vide Order dated 09.09.1996 parties in light of this Court’s judgment in O.N.G.C. v The Writ Petition was dismissed on the ground of the Company Law Board under Section 111 of the Law Board came to be dismissed vide Order dated 26.02.1998 since the remedy was no longer available as Restoration of the Writ Petition which was restored vide On 27.03.2001 a meeting was convened by the Cabinet Secretariat Litigation Cell which was presided by of MTNL Canara Bank and CANFINA The Committee directed Canara Bank CANFINA and an appropriate reference to the Permanent Machinery of Arbitration functioning in the Department of Public Enterprises. The Committee did not permit Canara Bank The Delhi High Court vide Order to the Committee on Disputes. The Writ Petition was adjourned sine die. Canara Bank was granted liberty to revive the Petition in the event that the Committee on Disputes was unable to resolve the disputes between the The Committee of Disputes held a meeting on 16.12.2008 which was attended by the Committee after hearing the parties expressed the view in view of the different inter­linked transactions between The representatives of Canara Bank expressed the of Arbitration would take much longer than judicial the parties should expeditiously enter into an arbitration Pursuant to the meeting held on 16.12.2008 Canara Bank vide its letter dated 05.03.2009 sent a draft arbitration agreement to the Chairman and sent by Canara Bank was between Canara Bank and By letter dated 17.03.2010 Canara Bank requested the Deputy Secretary Cabinet Secretariat to advise MTNL to execute the arbitration agreement in accordance with the direction of the Ministry of Law and The Delhi High Court vide Order agreement between the parties is signed as soon as The decision in O.N.G.C. v u S. 151 CPC for restoration of the disposed of Writ The Delhi High Court restored the Writ Petition and vide Order dated 16.09.2011 noted that Whether Canara Bank is liable for the acts or During the course of the proceedings the parties referred to arbitration. The parties were requested to On 21.10.2011 the name of Mr Canara Bank which was accepted by the Counsel for On 05.01.2012 the Sole Arbitrator issued notice to all the three parties i.e. MTNL Canara Canara Bank raised an objection to joining CANFINA as a party to the arbitration. The Arbitrator heard the parties on 27.03.2012 on the issue whether CANFINA should be joined as a party to the The learned Arbitrator passed an interim award holding that CANFINA had not appeared on 16.09.2011 arbitration. CANFINA was not a party to the arbitration MTNL filed C.M. No. 8100 of 2012 before the Delhi High Court seeking clarification of Order dated 16.09.2011 as to whether CANFINA ought to be impleaded as a necessary party to the arbitration The Delhi Court vide order dated 05.07.2013 Canara Bank filed its Statement of MTNL filed I.A. Nos. 324 325 of 2014 before the Delhi High Court for recall of the Orders dated 16.09.2011 21.10.2011 and 05.07.2013 passed in The Delhi High Court vide Order dated 10.01.2014 dismissed the Application for Recall on the ground that the application was identical to the the Statement of Claim filed by Canara Bank and also 3. Aggrieved by the Orders dated 16.09.2011 21.10.2011 in W.P.No. 5695 C.M. No. 122311 C.M. No This Court vide Order dated 08.05.2014 issued Notice to all 4. Ms. Madhavi Divan learned ASG appeared on behalf of MTNL No. 1 Canara Bank and Ms. Saumya Sinha along with Mr 5.1. In the absence of a written agreement for arbitration and 7(3) of the Arbitration and Conciliation Act 1996 the transactions between the Appellant MTNL on the one hand and Respondent No. 1 and 2 Canara Bank and subscribed by Respondent No 2 CANFINA and were subsequently transferred to its parent Company i.e In the absence of Respondent No. 2 CANFINA being made a party to the arbitration the arbitral proceedings 5.4. The only existing arbitration agreement between the parties is a draft tripartite agreement forwarded by Canara Bank as the disputed Bonds were bought from the Appellant The Appellant MTNL had consented to the disputes 6. The Counsel for Respondent No. 1 Canara Bank inter alia MTNL filed the present Appeal after filing its reply to the Statement of Claim and Counter­Claim before the learned Sole Arbitrator and has therefore submitted itself to the an application under Section 16 of the Arbitration and 6.3. Respondent No. 2 CANFINA was merely joined as a proforma party in the Writ Petition before the Delhi High Court and therefore cannot be made a party before the 6.4. At the time of giving consent to arbitration and appointment 6.5. The Appellant MTNL has not filed any claim against Respondent No. 2 CANFINA and therefore cannot seek 7. We have heard the learned Counsel for the parties and There are two issues which have arisen for our consideration : the first issue raised by the Appellant MTNL with respect to the existence of a valid arbitration been raised by Respondent No. 1 Canara Bank that the Order dated 16.09.2011 and 21.10.2011 is between Canara to the arbitration agreement and hence cannot be impleaded A valid arbitration agreement constitutes the heart of an between the parties to submit their existing or future disputes or differences to arbitration. A valid arbitration 9.1. Section 7 defines “arbitration agreement” and reads as 1) In this Part “arbitration agreement” means an arise between them in respect of a defined legal An arbitration agreement is in writing if it is b) An exchange of letters telex telegrams or other means of telecommunication which provide a 5) There reference in a contract to a document containing an arbitration clause constitutes an the reference is such as to make that arbitration 9.2. The arbitration agreement need not be in any particular is the agreement to refer their disputes or differences to clause in an agreement separate agreement or 9.3. Section 7(4)(b) of the 1996 Act states that an arbitration agreement can be derived from exchange of letters telex telegram or other means of communication including through electronic means. The 2015 Amendment Act inserted the words “including communication through may not have signed a formal contract it cannot absolve general principles of construction of statutes statutory instruments and other contractual documents. The the contract conduct of the parties and correspondence the parties were ad idem and had actually reached an agreement upon all material terms then it would be The meaning of a contract must be gathered by adopting a common sense approach and must not be 9.5. A commercial document has to be interpreted in such a invalidate it. An ‘arbitration agreement’ is a commercial effect to the intention of the parties rather than to 9.6. In Khardah Company Ltd. v. Raymon and Co. Pvt Ltd.5 this Court while ascertaining the terms of an fairly be deduced from the words actually used term there is nothing in law which prevents them from setting up that term. The terms of a contract can be expressed or implied from what has been 9.7. In interpreting or construing an arbitration agreement or This Court in Enercon Ltd. and Ors. v. Enercon GMBH6 held that a common sense approach has to be adopted to give effect to the intention of the parties to arbitrate the disputes between them. Being a commercial 9.8. In this case MTNL raised a preliminary objection that there We will first deal with this issue. The agreement between MTNL and Canara Bank to refer the disputes to arbitration is evidenced from the following documents The Minutes of the Meeting dated 27.03.2001 parties were present and participated in the proceedings. The Committee on Disputes in the view of the different inter­liked transactions between them. Canara Bank suggested that to expedite the arbitration it should be conducted under the Arbitration & Conciliation Act 1996. This was Secretariat Canara Bank addressed letters dated 05.03.2009 and 17.03.2010 to MTNL wherein it enclosed a draft Arbitration Agreements wherein all three parties i.e. Canara Bank CANFINA and MTNL In the Writ Petition filed by Canara Bank the Delhi High Court vide Order dated 16.09.2011 recorded the consent of MTNL and Canara Bank to be referred to The relevant extract of the Order dated “Unfortunately although the parties had displayed their willingness for arbitration the Committee on Disputes could not resolve the have the parties been able to arrive at a consensus with regard to the specific clauses of the arbitration agreement. As noted in the order dated 01.10.2010 according to the petitioner it is is liable for the acts or omissions of CANFINA the arbitration namely whether the petitioner is liable for the acts or omissions of CANFINA and whether the petitioner is liable to take over the liabilities of CANFINA prior to the arbitration of the points to be decided in the course of arbitration. Even though the learned counsel for scope and ambit of powers of the Committee on Disputes we are making the present order in for arbitration as a mode for resolving their disputes. This is welcome because both the Pursuant thereto MTNL participated in the agreement in writing between the parties. The only 9.10. An additional ground for rejecting the preliminary objection Section 7(4)(c) provides that there can be an of claims and defense in which the existence of the agreement is asserted by one party and not denied by the In the present case Canara Bank had filed its The statement of Claim and Defence filed before the arbitration agreement which was not denied by the other 10.1. Canara Bank raised an objection to the joinder of 10.2. As per the principles of contract law an agreement entered on the other members of the same group as each company The parent or the subsidiary company entering into agency or representation will be the only entity in a group the same principles and normally the company entering parties to bind both the signatory as well as the non­ that the non­signatory company was by reference to the common intention of the parties a necessary party to the 1970’s from French arbitration practice. The ‘Group of Companies’ doctrine indicates the implied consent to an the companies of the group should bind the other companies which by virtue of their role in the conclusion performance or termination of the contracts containing of all parties to the proceedings appear to have been veritable parties to these contracts or to have been The ‘Group of Companies’ doctrine has been invoked by group and the non­signatory affiliate or sister or parent 9 1984 Rev Arb 137 110 JDI 899See also Gary B. Born: International Commercial Arbitration Vol. I party which is a signatory to the arbitration agreement direct commonality of the subject matter the composite is inter­linked in nature or where the performance of the agreement may not be feasible without the aid execution and performance of the supplementary or the ancillary agreement for achieving the common object and cases where there is a tight group structure with strong organizational and financial links so as to constitute a particular when the funds of one company are used to financially support or re­structure other members of the 10.6. The ‘Group of Companies’ doctrine has been invoked and applied by this Court in Chloro Controls India Ltd. v Severn Trent Water Purification Inc. 12 with respect to an international commercial agreement. Recently this Court 10.7. Coming to the facts of the present case CANFINA was set 6.14 CANFINA was set up as a wholly owned subsidiary of Canara Bank and it commenced its operation with its Head Office at Bangalore on 1 June 1987. Its authorized and paid up capital are 14 Report Presented to the Lok Sabha on 21st December 1993 has branches at Ahmedabad Bombay Calcutta Hyderabad Madras and New Delhi besides company functioned under the umbrella of the its functioning to the Board of Canara Bank for 6.15 The activities authorized to be conducted by the Company are equipment leasing merchant­ banking venture capital and consultancy services business and obtained the classification of an ‘Equipment leasing company’ from the Department of Finance Companies of RBI this classification entitles the company to mobilize public deposits to Bank to its subsidiaries are such as could be 10.8. The disputes between the parties emanated out of the transaction dated 10.02.1992 whereby CANFINA has subscribed to the bonds floated by MTNL. CANFINA Canara Bank. It is the contention of MTNL that since Bonds MTNL eventually was constrained to cancel the MTNL and Canara Bank in the absence of CANFINA since undisputedly the original transaction emanated from a transaction between MTNL and CANFINA the original purchaser of the Bonds. The disputes arose on the of the Bonds its subsequent transfer by CANFINA to Canara Bank and the cancellation by MTNL which has led Therefore CANFINA is undoubtedly a necessary and Given the tri­patite nature of the transaction there can be a final resolution of the disputes only if all three It is of relevance to note that CANFINA has Court had joined CANFINA as Respondent No. 2 even though it was joined as a proforma party. CANFINA was not present on two dates i.e. on 16.09.2011 and MTNL had submitted before the Delhi High Court that Canara Bank should agree to take over the liabilities of Court recorded that there was no necessity of requiring Canara Bank to agree to take over the liabilities of CANFINA prior to the arbitration proceedings. This issue On the commencement of arbitration proceedings before the Sole Arbitrator notice was issued by the Sole as a party to the arbitration proceedings was raised by We do not find any merit in the objection raised by MTNL wherein it has clearly stated that the arbitration would be between three parties i.e. Canara Bank and It is incomprehensible why Canara Bank is now Counsel for Canara Bank to oppose the impleadment of Respondent No. 2 CANFINA to being impleaded in the throughout participated in the proceedings before the Committee on Disputes before the Delhi High Court before the Sole Arbitrator and was represented by its separate and its subsidiary CANFINA to the proceedings. In this case there can be no final resolution of the disputes unless 11. In view of the aforesaid discussion the present appeals are join Respondent No. 2 CANFINA i.e. the wholly owned subsidiary of Respondent No. 1 Canara Bank in the The matter is remitted to the Sole Arbitrator to as expeditiously as possible. We have however expressed no Pending applications if any are disposed of Abhay Manohar Sapre J. elaborate well considered and scholarly drafted judgment proposed by my esteemed Sister Justice I entirely agree with the reasoning and the conclusion which my erudite Sister has drawn As rightly observed by my learned Sister in para 8 following two questions arise for One whether the arbitration agreement in question is a bi­party agreement between the MTNL(appellant herein and Canara Bank respondent No. 1) or it is a tri­partite agreement between the MTNL Canara Bank and CANFINA respondent No. 2) and if so whether the agreement satisfies the conditions laid down in Section 7(4)(b) and of the Arbitration and Conciliation Act 1996 so as to enable the arbitral tribunal to 5. Second if the answer to the first question is that the agreement in question is a tri­partite agreement whether CANFINA is also a necessary party to the arbitral proceedings for deciding the rights of the parties inter se in relation to the in question is essentially a tri­partite agreement between the parties namely MTNL Canara Bank and CANFINA. Indeed this is clear from the documents exchanged between the parties the three parties that it can be effectively decided we have no hesitation in coming to a conclusion that the agreement in question is in fact a tri­ partite agreement between the three parties mentioned above. In my view it satisfies the This issue is extensively dealt with by my Court in several decisions and I agree with her Somewhat similar question also arose in should be dealt with in the arbitral proceedings­ whether it should be dealt with in one arbitral be dealt with in separate or parallel arbitration 11. This question was succinctly dealt with by the their book on “International Arbitration". to 2.212 to 12. The learned authors examined party arbitration. They opined that subject to the resolved as far as possible in one arbitral 13. Since the main object of the arbitral only when the disputes are resolved as far as possible in one arbitral proceedings. In this case decide the dispute on merits in accordance with 14. As rightly observed by my learned Sister the undisputed facts brought on record in clear terms the facts of this case so as to enable the arbitral tribunal to determine the rights of three parties named above. In my considered view one cannot Companies” has its application to arbitral proceedings and in appropriate cases it can be so

Customer witnesses need not be produced for proving misconduct or irregularities of workman under Industrial Dispute Act, 1947: High Court of Delhi

The statement of the witnesses is not the sole material evidence. Customer witnesses need not be produced for proving misconduct or irregularities of workman under I.D. Act as it leads to the greater inconvenience for the customer which the management sees to avoid under all circumstances is upheld by High Court of Delhi through the learned bench led by Justice Prathiba M. Singh in the case of Shri Biri Singh vs. Delhi Transport Corporation [W.P.(C) 1614/2022] on 27.01.2022. The facts of the case are that the Petitioner was a Conductor in the DTC. On the intervening night when the workman was on duty on bus a surprise checking team entered the bus at Safdarjung Airport. The checking staff found that 12 passengers who were travelling in the bus were not issued tickets by the Conductor despite having cash collected from them. A chargesheet was served on the Workman. The Workman was asked to submit a reply and an enquiry was conducted. After a detailed enquiry, the removal of the Workman was recommended and accordingly, he was terminated. A demand notice was thereafter served by the Workman in 1995 seeking reinstatement. Since, there was no response from DTC, he filed a claim before the Labour Court. The enquiry proceedings were set aside by the Labour Court holding that the enquiry was held in violation of principles of natural justice and finding of the enquiry officer were perverse. Thus, the present petition challenges the impugned order. The petitioner’s counsel submitted that there were various discrepancies in the evidence adduced by DTC. In fact, the Workman was not found carrying any surplus cash when the checking team entered the bus. He submitted that bill shows that the tickets were given by the workman and the allegations against him are completely wrong and baseless. He further submitted that none of the twelve passengers were examined by the DTC before the Court and allegations were not proven. The respondent’s counsel submitted that the workman had previous record which had five adverse entries and has been ascertained from his own testimony in the cross-examination. She further submitted that the workman has not worked with the DTC for more than 30 years now and he has his own house, as is also clear from the testimony. In these circumstances, she submits that there is no error in the impugned award and does not warrant any interference any interference by this Court. Considering the facts and circumstances, the present writ petition along with all pending applications, was dismissed by the Court as misconduct was established based on facts in a detailed award passed by the Labour Court. The Court observed that “it is not mandatory that witness should depose in order to establish guilt. The statement of the witnesses is not the sole material against the petitioner. Customer witnesses need not be produced for proving misconduct or irregularities of workman under I.D. Act as it leads to the greater inconvenience for the customer which the management sees to avoid under all circumstances”. Click here to read the Judgment

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 27th January 2022 W.P.(C) 1614 2022 & CM APPL. 4674 2022 Petitioner Through: Mr. Vinay Sabharwal Advocate. DELHI TRANSPORT CORPORATION JUSTICE PRATHIBA M. SINGH Through: Ms. Aditi Gupta Advocate M: 9811046710) Respondent SHRI BIRI SINGH Prathiba M. Singh J.This hearing has been done through video conferencing. The present petition challenges the impugned order dated 5th October 2021 in LID No. 559 2019 titled Shri Biri Singh v. Delhi Transport Corporation passed by the PO Labour Court 08 Rouse Avenue District Courts New Delhiwho was working as a Conductor with the Respondent Delhi Transport Corporation hereinafter as ‘DTC’) was rejected by the Labour Court. The background of the case is that the Petitioner was appointed as Conductor in the DTC in the year 1983. The case of DTC is that on the intervening night of 19th 20th April 1991 when the Workman was on duty on bus no.9065 a surprise checking team entered the bus at Safdarjung Airport. The checking staff found that 12 passengers who were travelling in the bus were not issued tickets by the Conductor despite collecting the cash from them. A chargesheet was served on the Workman on 6th May 1991. The charges that were alleged against him are as under: W.P.(C) 1614 2022 “i) That the workman received the complete fare form the passengers who boarded the bus from Jama Masjid but did not issue tickets to the passengers till Safdarjung Airport. ii) Cash was found less with the workman of Rs.2.45 paise on checking the cash. iii) The workman was found dishonest towards his iv) Causing intentionally financial loss to the v) Refused to get his cash checked. vi) Refusing to sign and refusing to take the vii) Refusal. to give unpunched ticket to the checking staff” The Workman was asked to submit a reply and an enquiry was conducted. After a detailed enquiry the removal of the Workman was recommended. He was accordingly terminated on 6th May 1992. A demand notice was thereafter served by the Workman in 1995 seeking reinstatement. Since there was no response from DTC he filed a claim before the Labour Court. The enquiry proceedings were set aside by the Labour Court on vide order 1st February 2005 holding that the enquiry was held in violation of principles of natural justice and finding of the enquiry officer were perverse. Thus fresh evidence was adduced by the DTC for proving the misconduct of the Conductor. The ATI Sh. Ishwar Singh was examined as MW 2 on 03rd April 2006 by DTC. Finally vide order dated 5th October 2021 the claim of the Workman was dismissed by the Labour Court. The findings of the labour Court are as under: W.P.(C) 1614 2022 “27. Facts and circumstances of the case lead to the only inference that workman having collected lesser amount as per prevalent malpractice had neither made any entry in the way bill nor issued any ticket to the group of 12 passengers having boarded at Jama Masjid till the bus was stopped by the checking staff near Safdarjung Airport and passengers after necessary entry in the way bill when he was stopped by the checking team and punched tickets were collected from the workman. to hand over punched therefore succeeded 28. Non examination of Sh. Shakeel Ahmed by management cannot be considered fatal in view of testimony of MW 2 Shri Ishwar Singh who has deposed that statement Ex.MW 2 3 on the reverse side of challan slip was written by the passenger. 29. Management has the mis conduct committed by workman in view of absence of valid explanation justifying shortage of Rs.2.45. Removal of workman from service is therefore held to be legal and justified in view of five adverse entries in his past record. 30. Reference under Section 10(1)(c) read with Section 12(5) of the I.D. Act is accordingly answered by holding removal of workman Shri Biri Singh from service as legal and justified.” 5. Mr. Vinay Sabharwal ld. Counsel appearing for the Workman submits that there were various discrepancies in the evidence adduced by DTC. In fact the Workman was not found carrying any surplus cash when the checking team entered the bus. He submits that in fact the way bill would show that the tickets were in fact given by the Workman and the allegations against the Workman was completely wrong and baseless. He W.P.(C) 1614 2022 further submits that none of the twelve passengers were examined by the DTC before the Labour Court in the case. He states that the allegation in the chargesheet were not proved by the DTC and hence the dismissal of the claim was not justified. 6. Ms. Gupta ld. Counsel for DTC submits that the Workman had previous record which had five adverse entries which was clear from his own testimony in the cross examination. She further submits that the Workman has not been working with the DTC for more than 30 years now and he is having his own house as is also clear from the testimony. In these circumstances she submits that there is no error in the impugned award and does not warrant any interference any interference by this Court. The Court has perused the testimony of the Workman Conductor. In his testimony the Workman admits that he was working as a Conductor with the DTC and he denied the suggestion put to him that he had not issued tickets to the 12 passengers. The Workman admits that there were five adverse entries against him in his past record. The said admission is set out “It is incorrect to suggest that I refused to handover unpunched tickets to the checking staff & later on handed over tickets after punching them. It is incorrect to suggest that I refused to saw my cash to checking staff. It is also incorrect to suggest that my cash could be checked by the checking staff only after the bus was taken to police station where it was found less by Rs. 2.45 Vol. I handed over my cash for checking at the Safdarjang Airport itself. It is correct that I did not mention this fact either in my claim or my affidavit. It is incorrect to suggest that my cash was checked in the presence of a Police Head Constable. It is W.P.(C) 1614 2022 correct that challan does not bear my sign. Vol. I wanted to sign challan but checking staff did not let me affix my sign on it. It is incorrect that I misbehaved with the checking staff. It is incorrect that checking staff took statements of passengers in my presence. It is correct that in respect of every employee corporation maintains a past record. It is correct that there are five adverse entries in my past record. It is incorrect that by my conduct I caused financial loss to the Corporation or I was not taking interest in work. It is incorrect that I misbehaved with checking staff & refused to comply with their orders. It is correct that I was aware of the fact that I had been challaned by the checking staff. I is incorrect to suggest that bus was got stopped at police post check On the other hand the ATI Mr. lshwar Singh himself was examined by the DTC. The exact details of the manner in which the inspection was conducted is set out in the affidavit. As per the said testimony the Workman had received full fare of Rs. 24 from a group of 12 persons for travelling in the bus from Jama Masjid to Khan Pur during night service in bus No.9065 on route no.052 till Safdarjung Airport. The checking team entered the bus at about 2:40 a.m. on the intervening night of 19th 20th April 1991. As per his testimony the Workman did not issue tickets to the entire group of passengers and upon seeing the checking staff he tried to give them the tickets bearing No.749 39132 to 39143. He also refused to give the unpunched tickets to the checking team. The Witness also states that statement of one of the passengers who was the leader of the group of 12 passengers who were travelling in the bus was also taken and the same was also annexed and marked as Ex.MW 2 3. W.P.(C) 1614 2022 In his cross examination the Management’s witness also denies specifically the fact that the Conductor had issued tickets to all the passengers. He further denies the suggestion that the checking report is false. The witness also testified that that the Conductor had misbehaved during the time when the checking staff had entered the bus. The impugned award also clearly records that the Management was successful in proving the misconduct committed by the Workman and that the Workman had failed to issue tickets after having accepted money from the passengers. 10. The present case is a case of misconduct by the Workman. The dismissal has taken place more than 30 years ago. The testimonies of the witnesses are summarised below: Evidence of the Workman “The charges mentioned in the chargesheet dated 6th May 1991 are false and wrong. All the passenger travelling on Bus No. 9065 on route no. 052 on 19 20th April 1991 were issued ticket of right denomination when the bus was checked by the checking officials. The checking staff had closed the number of way bill and the last number was 39144 which showed that the tickets sold till no. 39144 were sold checked and punched. The checking officials took valid tickets from the passenger and made a false challan against the deponent. The charge that punched tickets were not given to the checking staff is false and was added to give false colour to the challan. The alleged statement of the passenger is forged and false. No person has given any statement in front of the deponent nor was the deponent confronted by any such passenger. The cash was found short with the Deponent at the time of checking but the Deponent had deposited the same in the depot and W.P.(C) 1614 2022 Evidence of the Mr. Ishwar Singh for DTC as such there was no misconduct on part of the Deponent. The deponent is unemployed since termination and is facing acute financial hardship. Deponent is surviving due to some agriculture work by him and some stitching work done by the wife of the deponent.” “I was the ATI at the time of the issuance of a challan dated 19 20th April 1991 to Sh. Biri Singh which is Ex. MW2 1. I gave checking report of the said challan to the Workman. The Workman was chargesheeted. That I checked the bus on 19 20th April 1991 at 2.40 am. I found the that the Workman Sh. Biri Singh received from a group of 12 persons full fare from Jama Masjid to Khan Pur Rs.24 in the night service in the bus No. 9065 route No. 052 and till Safdarjung Airport. The Workman did not issue tickets to the group of passengers. The workman tried to the give tickets to the passengers on seeing the checking staff No. 749 391132 to 391143. That when I asked for the ticket the Workman refused to give me unpunched tickets. The Workman refused to ger his cash checked in the bus. That I took the bus to INA Police Post where the cash was checked and it was found less of Rs. 2.45 paisa. The Workman behaved improperly with the checking staff. That the checking staff recorded the statement of the group leader of 12 passengers on the back of the challan which is annexed marked as Ex. MW2 4. That the copy of the waybill is Ex. MW2 4” 11. After perusing the above testimonies the Court finds that the ATI who gave evidence has mentioned all the facts relating to the surprise inspection. He has given details of the conduct of the workman and the manner in which Workman behaved when he realised that the inspection W.P.(C) 1614 2022 team was about to board the bus. The ATI’s evidence that the bus had to be taken to the INA check post is affirmed by the driver of the bus who gave evidence before the Labour Court. The observation of the Labour Court where the driver’s evidence is captured reads as under: “24. WW 1 Shri Biri Singh during his cross examination recorded on 27.07.2006 has denied the suggestion that he refused to show the cash to the checking staff and that cash could be checked by the officials only after the bus was taken to police station where a sum of Rs.2.45 was found short. He in addition has also denied the suggestion that the bus was stopped at INA check post. It is however relevant to note that Shri Chand Ram Driver Badge No. 17315 in his testimony recorded during enquiry as defence witness has deposed that the bus was stopped at INA check post and a sum of Rs.2.45 was found short. The fact that workman has tried to mislead the Court by denying the suggestion that bus was taken to INA check post coupled with the fact that a sum of Rs.2.45 was found short which could not be explained by the workman dissuades the Court from relying upon his testimony.” 12. There are also some glaring inconsistencies in the case put forth by the Workman. The relevant portion from the impugned order showing the aforesaid inconsistency is: in his cross “22. WW 1 Shri Biri Singh examination recorded on 09.04.1999 has initially deposed to have given punched tickets to the checking staff before resiling from his earlier statement in his cross examination recorded on 27.07.2006. Relevant portion of his cross examination recorded on aforesaid dates W.P.(C) 1614 2022 extracted below: Cross examination recorded on 09.04.1999. It is correct that I gave punched tickets to the checking staff. ..... " Cross examination recorded on 27. 06.2006. ...... It is incorrect to suggest that I refused to handover unpunched tickets to the checking staff and later on handed over tickets after punching them . ...... " 13. From the above extracts it is clear that the labour court notices the clear contradiction in the workman’s testimony. In the cross examination the workman has merely denied all the suggestions put to him. There is no dispute to the fact that the statement of one of the passengers was recorded placed on record and exhibited. The testimony of the Workman is clearly unreliable and untrustworthy. On the other hand the testimony of the Management witness has been unimpeached leading to the inescapable conclusion that misconduct was indeed committed by the Workman. It is also the settled position that customers need not be produced in such proceedings. Recently in Asst. General Manager Stat Bank of India v. Ashok Kumar Bhatiya WP(C) 7584 2017 vide order dated 17th December 2021 this Court has reiterated that customers need not be produced for proving misconduct or irregularities as it leads to the greater inconvenience for the customer which the Management sees to avoid under all circumstances. Moreover this Court in the case of Delhi Transport Corporation v. Shree Kumar & Anr. 113 DLT 505 has squarely dealt with the issue of non production of passenger as a witness in the domestic enquiry or before the Labour Court and held that production of a passenger is not required to prove the misconduct of the Workman. The W.P.(C) 1614 2022 relevant observations of the Court are as follows: him findings on that non production of “10. In Shyam Sunder v. Delhi Transport Corporationthis Court held that since the enquiry officer based his examination of the checking staff there was independence evidence to link the petitioner with consequently it was held that the statement of the passengers not being the sole material against the petitioner the domestic inquiry was not vitiated. The aforesaid decision of this Court as also the decision of the Supreme Court in Rattan Singh and many other decisions were noticed by this Court in the decision in Delhi Transport Corporation v. N.L. Kakkar and another1614 2022 applicable to the facts and circumstances of the present case.” 15. The said proposition of law has been reiterated in judgment passed by this Court in Dayal Singh v. Delhi Transport Corporation 2013 LLR 525 to hold that it is not mandatory that passenger witness should depose to establish guilt. 16. Therefore the misconduct having been established on facts in a detailed award passed by the Labour Court in the opinion of this Court the said order does not warrant any interference in writ jurisdiction under Article 226 of the Constitution of India 1950. Accordingly the present writ petition along with all pending applications is dismissed with no orders as to costs. JANUARY 27 2022 PRATHIBA M. SINGH JUDGE W.P.(C) 1614 2022

Before issuing non-bailable warrants, the courts should strike a balance between societal interests and personal liberty and exercise their discretion cautiously: Jharkhand High Court

Owing to the exceedingly dangerous repercussions and implications that follow the issuing of warrants, both bailable or non-bailable, warrants can never be released without sufficient review of evidence and full application of mind. The court must look at whether the criminal charge or FIR was brought with an oblique intent in mind. The judgement was passed by the High Court of Jharkhand in the case of Gouri Devi & Ors. vs The State of Jharkhand & Anr. [Cr. M.P. No. 2719 of 2020] by Single Bench consisting of Hon’ble Justice Sanjay Kumar Dwivedi. The petitioners have questioned the legality and validity of the order passed in SC/ST Case arising out of Barkatha P.S. Case and also for quashing the order, whereby processes under section 82 Cr.PC has been directed to be issued. The Learned counsel for the petitioners submits that by ordering the court below has taken cognizance against the accused persons and by the said order without issuing the summons straightway directed to issue a non-bailable warrant. He submits that this is not the only illegality but the trial court further proceeded without receiving the execution report of the non-bailable warrant and passed the order whereby process 2 under section 82 Cr.PC has been directed to be issued. He submits that this has been done without following the due process of law and the persons’ liberty has been directed to be curtailed given the said order without following the process of law. The Learned counsel appearing for the respondents fairly submits that the due process has not been followed by the court. The court while relying on the Hon’ble Supreme Court judgment Raghuvansh Dewanchand Bhasin v. the State of Maharashtra, wherein it was held that “before issuing non-bailable warrants, the courts should strike a balance between societal interests and personal liberty and exercise its discretion cautiously.”

1 Cr. M.P. No. 2719 of 2020 IN THE HIGH COURT OF JHARKHAND RANCHI 1.Gouri Devi wife of Badri Yadav aged about 45 years 2.Gita Devi wife of Sukhdev Yadav aged about 34 years 3.Anju Devi wife of Tribeni Yadav aged about 34 years 4.Jaswa Devi wife of Surendra Yadav aged about 39 years 5.Saryu Yadav son of Lalo Yadav aged about 44 years 6.Kavilas Devi @ Kavilasi Devi wife of Saryu Yadav aged about 39 years All are District Hazaribagh. ….. Petitioners resident of village Buchai PO Kapka PS Barkatha Versus 1.The State of Jharkhand 2.Pachiya Devi wife of Videshi Paswan resident of village Buchai PO Kapka PS Barkatha District Hazaribagh …... Opp. Parties CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners : Mr. Prabhat Kumar Sinha Advocate For Resp. State : Mrs. Niki Sinha Spl.P.P 5 16.03.2021 Heard Mr. Prabhat Kumar Sinha the learned counsel for the petitioners and Mrs. Niki Sinha the learned counsel for the State. 2. This criminal miscellaneous petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID 19 pandemic. None of the parties have complained about any technical snag of audio video and with their consent this matter has been heard. 3. The petitioners have questioned the legality and validity of the order dated 14.03.2019 passed in SC ST Case No.619 arising out of Barkatha P.S. Case No.615 corresponding to G.R. No.2735 of 2013 and also for quashing the order dated 23.09.2019 whereby processes under section 82 Cr.PC has been directed to be issued. Mr. Prabhat Kumar Sinha the learned counsel appearing for the petitioners submits that by order dated 14.03.2019 the court below has taken cognizance against the accused persons and by the said order without issuing the summons straight way directed to issue non bailable warrant. He submits that this is not the only illegality but the trial court further proceeded without receiving the execution report of the non bailable warrant and passed the order dated 23.09.2019 whereby process 2 under section 82 Cr.PC has been directed to be issued. He submits that this has been done without following the due process of law and the persons’ liberty has been directed to be curtailed in view of the said order without following the process of law. He submits that the case of the petitioners is covered in the light of the judgment of Hon’ble Supreme Court in case of ‘Raghuvansh Dewanchand Bhasin v. State of Maharashtra’ 2012) 9 SCC 791. Paragraph nos. 12 and 13 of the said judgment are quoted hereinbelow: “12. In Inder Mohan Goswami v. State of Uttaranchal a Bench of three learned Judges of this Court cautioned that before issuing non bailable warrants the courts should strike a balance between societal interests and personal liberty and exercise its discretion cautiously. Enumerating some of the circumstances which the court should bear in mind while issuing non bailable warrant it was observed:intentionally the process of issuance of the non bailable warrant should be resorted to. Personal liberty is paramount therefore we caution courts at the first and second instance to refrain from issuing non bailable warrants.” 13. We deferentially concur with these directions and emphasise that since these directions flow from the right to life and personal liberty enshrined in Articles 21 and 22(1) of our Constitution they need to be strictly complied with. However we may hasten to add that these are only broad guidelines and not rigid rules of universal application when facts and behavioural patterns are bound to differ from case to case. Since discretion in this behalf is entrusted with the court it is not advisable to lay down immutable formulae on the basis whereof discretion could be exercised. As aforesaid it is for the court concerned to assess the situation and exercise discretion judiciously dispassionately and without prejudice. Viewed in this perspective we regret to note that in the present case having regard to nature of the complaint against the appellant and his stature in the community and the fact that admittedly the appellant was regularly attending the court proceedings it was not a fit case where non bailable warrant should have been issued by the Additional Chief Metropolitan Magistrate. In our opinion the attendance of the appellant could have been secured by issuing summons or at best by a bailable warrant. We are therefore in complete agreement with the High Court that in the facts and circumstances of the case issuance of non bailable warrant was manifestly unjustified.” He further submits that the impugned orders are required 5. to be quashed. followed by the court below. Mrs. Niki Sinha the learned counsel appearing on behalf of the Opposite Party State fairly submits that the due process has not been On perusal of the impugned order dated 14.03.2019 it transpires that on that day the court below has taken cognizance against the accused persons and straight way issued the non bailable warrant in place of issuing the summons against the accused persons. On perusal of the order dated 23.09.2019 it transpires that the direction was issued for issuing the process under section 82 of the Cr.PC. On perusal of the record it transpires that this order has also been passed without receiving any execution report with regard to the non bailable warrant which is against the mandate of law rendered by this Court in the case of ‘Rustam Alam and Others v. The State of Jharkhand’Accordingly the part of impugned order dated 14.03.2019 and dated 23.09.2019 with regard to issuance of non bailable warrant and issuance of process under section 82 Cr.PC will not survive. Accordingly the part of impugned order dated 14.03.2019 so far issuance of non bailable warrant and dated 23.09.2019 so far as issuance of process under section 82 Cr.PC is concerned are quashed. 10. The matter is remitted back to the court below to proceed further in the light of the judgment rendered by Hon’ble Supreme Court in case of ‘Raghuvansh Dewanchand Bhasin”and the direction issued by this Court in case of ‘Rustam Alam and Others v. The State of Jharkhand’and in terms of Criminal Procedure Code strictly. To the above extent the criminal miscellaneous petition is allowed and disposed of. SI

Father committing rape upon minor daughter is aggravated penetrative sexual assault under Section 5(n) of the POCSO Act, 2012: Tripura High Court

The accused has failed to establish the fact that he did not commit rape upon her daughter. Considering the overall evidence and materials on record, we find no reason to dislodge the finding of guilt of the accused recorded by the learned Special Judge in convicting the accused-appellant. This was said in the case of Sri Manik Bhakti vs The State Of Tripura [CRL A(J) 48 OF 2019] by Chief Justice Mr. Akil Kureshi Mr. Justice Arindam Lodh in the High Court of Tripura  The facts of the case date back to 09.11.2017 when Special Judge convicted the appellant under Section 6 of (POCSO) Act and sentenced to suffer R.I. for life which shall mean remainder part of his life and to pay a fine of `10,000/- with default stipulation. Assailing the judgment of the Special Judge, the appellant filed an appeal. The learned counsel on behalf of the appellant contended that the prosecution has miserably failed to substantiate the charges levelled against the accused-appellant. The version of the victim was not found to be trustworthy. Secondly, the prosecution has failed to produce the complainant, the mother of the victim to adduce evidence before the court though her name was shown as one of the witnesses to the case. Thirdly, it was contended that there were material contradictions between the statements made in the FIR and the testimonies of PW-1, PW-2 and PW- 3 (victim). It was further contended that Special Judge has committed an error of law and facts in believing the age of the prosecutrix below 18 years. The respondent contended that the prosecution has been able to prove the case beyond reasonable doubt. The discrepancies as surfaced in the evidence of the prosecution witnesses were to be treated in minor in nature but the factum of rape had been proved beyond reasonable doubt. According to learned Addl. P.P., the medical report clearly suggested that the victim was raped by the accused. Further, it was contended that the fact that at the time of commission of offence, the victim was below 18 years had been proved beyond reasonable doubt. After analysing the submissions made by parties and perusing the evidence on record, the Court opined that “the victim is the minor daughter of the accused being her biological father. So, the accused being the father committed rape upon his minor daughter which comes within the definition of aggravated penetrative sexual assault and attracts the definition of Section 5(n) of the POCSO Act, 2012”. Furthermore, the Court said that “we have taken note of the statements made by the victim girl recorded under  Section 164(5) of CrPC. However, the material part that her father put the pillow underneath of her waist and committed rape upon her are found to be stated and corroborated her statement she has made in her examination-in-chief. According to us, the accused has failed to establish the fact that he did not commit rape upon her daughter”. Considering the age of the accused, we are of the opinion that reasonable justice will be rendered if the accused-appellant is sentenced to suffer rigorous imprisonment for 14 years instead of imprisonment for life as under the statute. Hence, the appeal was partly allowed. Click here to read judgment

Page 1 THE HIGH COURT OF TRIPURA CRL A(J) 48 OF 2019 Sri Manik Bhakti S o Lt. Dinesh Bhakti resident of Sanichara Ward No.4 P.S. Churaibari District North Tripura. Vs …. Appellant The State of Tripura HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON’BLE MR. JUSTICE ARINDAM LODH For the appellant Mrs. S. Chakraborty Advocate. For the respondent Mr. S. Debnath. Addl. Public Prosecutor. Date of hearing Date of delivery of Judgment & Order Whether fit for reporting : NO JUDGMENT & ORDER Arindam Lodh J) This is an appeal filed by the appellant against the judgment and order of conviction and sentence dated 09.11.2017 passed by the learned Special Judge North Tripura Dharmanagar in Case No. POCSO ACT 017 whereby and whereunder the appellant has been convicted under Section 6 of Protection of Children from Sexual Offences Page 2 Act and sentenced to suffer R.I. for life which shall mean remainder part of his life and to pay a fine of `10 000 with default stipulation. Briefly stated that the mother of the victim Smt. Sumitra Bhakti lodged a written complaint on 08.09.2017 to the Officer in Charge of Churaibari Police Station Dharmanagar inter alia stating that on 05.09.2015 when she her other sons and daughters were not at home her husband namely Manik Bhakti at noon made an attempt to commit rape upon her victim daughter while she was alone at her home. Hearing the cry of her daughter Namita Chanda and her husband Binay Chanda rushed to her house and saved her. It was further stated that at the time of lodging of that complaint her victim daughter was suffering from physical pain. Explaining the delay in lodging the complaint the complainant stated that the incident was discussed within her family and for that purpose a considerable time was consumed to lodge the complaint. On the basis of the said complaint dated 08.09.2015 the OC Churaibari PS registered a case being FIR No.CRB 036 under Section 354B of the Indian Penal Code and under Section 6 of POCSO Act. Investigation was carried out. During investigation police seized the wearing apparels of the victim arranged to record the statement of the victim under Section 164(5) of CrPC arranged for medical examination of the victim as well as Page 3 the accused sample of vaginal swab was sent to the State Forensic Science Laboratory arranged for ossification test to determine the age of the victim examined and recorded the statements of the available witnesses. Thereafter being satisfied that a prima facie case was established IO submitted charge sheet against the accused appellant. On being committed the case learned Special Judge framed charges against the accused under Section 6 of the POCSO Act 2012 as well as under Section 376(1) of the Indian Penal Code. In order to substantiate the charges prosecution examined as many as 12 witnesses and introduced 11 documents which were exhibited on At the closure of recording prosecution evidence accused appellant was examined under Section 313 CrPC to which he pleaded his innocence and also expressed his desire to adduce evidence on his behalf. Accordingly he adduced two witnesses including him. Having heard the learned counsels appearing for the parties and on consideration of the evidence and materials brought on record the learned Special Judge recorded the finding of guilt against the accused and convicted and sentenced him as aforestated. Page 4 Being aggrieved by the said judgment and order of conviction and sentence the appellant has preferred the instant appeal and prayed for In course of hearing of this appeal we have heard Mrs. S.Chakraborty learned counsel appearing for the appellant. Also heard Mr. S. Debnath learned Additional Public Prosecutor appearing on behalf of the State respondent. Mrs. Chakraborty learned counsel for the appellant submitted that the prosecution has miserably failed to substantiate the charges levelled against the accused appellant. According to her the version of the victim was not found to be trustworthy. Learned counsel for the appellant tried to persuade us that the prosecution has failed to produce the complainant the mother of the victim to adduce evidence before the court though her name was shown as one of the witnesses to the case. Mrs. Chakraborty learned counsel further contended that there were material contradictions between the statements made in the FIR and the testimonies of PW 1 PW 2 and PW 3deposed that victimwas raped by her father the appellant Page 5 herein. Learned counsel for the appellant further argued that learned Special Judge has committed an error of law and facts in believing the age of the prosecutrix below 18 years. On the other hand Mr. S. Debnath learned Additional Public Prosecutor would contend that the prosecution has been able to prove the case beyond reasonable doubt. The discrepancies as surfaced in the evidence of the prosecution witnesses were to be treated in minor in nature but the factum of rape had been proved beyond reasonable doubt. According to learned Addl. P.P. the medical report clearly suggested that the victim was raped by the accused. Further it was contended that the fact that at the time of commission of offence the victim was below 18 years had been proved beyond reasonable doubt. Learned Addl. P.P. strongly defended the judgment and order of conviction and sentence as recorded by learned Special Judge. In view of the submissions advanced by the learned counsels appearing for the parties we have perused the evidence brought out by the prosecution witnesses. PW 1 Smt. Namita Chanda who was a neighbour of the complainant as well as PW 3deposed that on the fateful day at about 4:00 pm the victim went to her house and reported her that on that day Page 6 at noon her father forcefully committed rape upon her at their hut. She further deposed that the victim also reported that her mother and younger brothers and sisters at that time went to the ‘Loknath Mandir’ and getting her alone her father committed the offence. Nothing material was elicited from her cross examination by the defence regarding the statements she made in her examination in chief. PW 2 Sri Binay Chanda being the husband of PW 1 also deposed in the same tune as that of his wifeof CrPC sent the vaginal swab to SFSL for examination and report and also arranged for ossification test of the victim girl to determine her age. PW 9 Debabrata Datta deposed that he also investigated the case after PW 8. He collected the reports of medical examination and ossification test. He deposed that on 22.11.2016 the Medical Officer after examining the victim submitted his report and opined that the victim was about 15 years old but below 18 years. He specifically stated that he relied on the medical report regarding the age of the victim girl. PW 10 Dr. Sandip Deb who deposed that on 09.09.2015 at about 10:00 am he being the Medical Officer at Kadamtala CHC examined the victim. During examination he did not find any external injury. Page 9 However he found that her vagina permits two fingers. PW 10 further deposed that in the findings Column he only mentioned the following words “suggestive of repeated sexual intercourse”. Clarifying the terminologies he deposed that the words “suggestive of repeated sexual intercourse” mean that she was subjected to repeated sexual intercourse. PW 11 Dr. Mriganka Datta who medically examined the accused opined that the accused was capable of performing sexual intercourse. He identified his reportWhoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine or with death. 2) The fine imposed under sub section shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.” The term “aggravated penetrative assault” has been defined under Section 2(1)(a) of the POCSO Act 2012 which is as under: Page 11 “2(1)(a) “aggravated penetrative assault” has the same meaning as assigned to it in Section 5”. Now for the purpose of the case in hand Sub section of Section 5 of the POCSO Act is relevant which reads as under: “5(n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child commits penetrative sexual assault on such child.” In the instant case the victim is the minor daughter of the accused being her biological father. So the accused being the father committed rape upon his minor daughter which comes within the definition of aggravated penetrative sexual assault and attracts the definition of Section 5(n) of the POCSO Act 2012. Now let us discreetly examine whether the prosecution has been able to prove the charges levelled against the accused beyond reasonable doubt. The complainant being the mother of the victim who lodged the complaint and on the basis of which FIR was registered has not come forward to testify herself to support her contention which she made in the complaint but the victim as PW 3 has categorically deposed that when she was alone in the house her father committed rape upon her. At the very outset while she was in the hut her father came and undressed her and the Page 12 accused after removing her wearing apparels entered his private parts into the private parts of the victim. She could not raise alarm as her mouth was being pressed by the accused. After her release she rushed to the house of PW 1 and PW 2 where she disclosed the incident. PW 1 and PW 2 also supported the version of the victim in respect of the circumstance that after the incident she rushed to their house. The statements of PWs 1 and 2 are relevant under Section 3 of the Evidence Act because the factum of rape has been disclosed to them immediately after the incident and their evidences are to be treated as the evidence of res gestae and are admissible in evidence in view of the Section 6 of the Evidence Act. True it is that the accused has tried to establish his defence that since he used to scold his daughter for her not being serious to her study is found to be a weak piece of evidence since he has failed to rebut the evidence of PW 3 PW 1 and PW 2 by cogent evidence as contemplated under Section 29 of the POCSO Act 2012 that the special court shall presume that such person has committed or abetted or attempted to commit the offence as the case may be unless the contrary is Though not argued but we have taken note of the statements made by the victim girl recorded under Section 164(5) of CrPC. We find that she did not say in course of her evidence before the court that her father Page 13 asked her to massage his hand and legs and suddenly he hugged her. However the material part that her father put the pillow underneath of her waist and committed rape upon her are found to be stated and corroborated her statement she has made in her examination in chief. We are not oblivious of the well neigh principle that the court is to separate the wheat from the chaff considering the totality of the circumstances. According to us the accused has failed to establish the fact that he did not commit rape upon her daughter. Considering the overall evidence and materials on record we find no reason to dislodge the finding of guilt of the accused recorded by the learned Special Judge in convicting the accused appellant. However it is revealed from the examination of the accused under Section 313 CrPC that at the time of his examination the accused was aged about 58 years. Considering the age of the accused we are of the opinion that reasonable justice will be rendered if the accused appellant is sentenced to suffer rigorous imprisonment for 14 years. Accordingly we have interfered with the sentence to suffer rigorous imprisonment for life which shall mean for remainder of life. The sentence shall stand modified to the extent that the accused appellant shall suffer rigorous imprisonment for 14years. However the fine with Page 14 default stipulation imposed upon the accused appellant by the learned Special Judge is not interfered with. The appeal accordingly stands partly allowed and disposed. Send down the LCRs. J CJ.

Gorle S. Naidu v State of A.P. and Ors.

The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. The appeals are interlinked and relate to a Division Bench judgment of the Andhra Pradesh High Court whereby the respondents were acquitted.The deceased persons Kurmi Naidu and Meesala Jogulu were residents of Patharlapalle village. There was a fire accident in their village i.e. Patharlapalle wherein more than four hundred houses were burnt. The Government and the insurance company sanctioned Rs.500/- and Rs.1,000/- respectively to owner of each of the houses which was burnt. A group of persons headed by Hari Babu (A-29) started saying that they had got sanctioned the amount and asked the recipients to pay Rs.100/- each. The persons, who did not pay the amount so demanded came and complained to PW-4.On that score a group rivalry started. One group was headed by A-29 and the other group by PW-4. In the year 1989, G. Ramarao (A-5) started ’Indira Priyadarsini Yuvajana Sangam’. The said Sangam started collecting Rs.50/- from each of the members. Whenever any village refused to join the Sangam, the members of that Sangam used to damage their agricultural implements like carts etc., and also the crops. The said Sangam entertained a grouse against PW-4 thinking that he was causing obstruction to their activities.About one year prior to the death of the deceased (on 10.4.1991) all the accused and some others attacked the house of PW-4 by hurling bombs. As there was no safety in the village, and threat to his life, PW-4 started living in the house which is situated in his land at Nakkalacheruvu.Three months prior to the present incident the deceased Kurmi Naidu came down to Patharlapalle from Madras. All the household supply cards which were taken away by the group of A-29 in his village were kept in the house of A-15. So some residents of Patharlapalle sent a petition to the Mandal Revenue Officer who came to the house of A-15 (Gorle A. Kasavayya) and seized 375 cards. This led to further grouse against PW-4 as he was considered responsible for such seizure of the household supply cards.Thereafter, all the accused decided to do away the life of PW-4. Gorle Ramarao (A-5) is the President of Yuvajana Sangam. Some of the accused and other villagers are members of the Sangam. On 23.12.1990 PW-5 accompanied the deceased to Visakhapatnam. On return from Visakkhapatnam, at Ranasthalam one Komati Satyam informed the deceased and PW-5 that Haribabu and his group were lying in wait for Kurmi Naidu on the road leading to Patharlapalle, and thereafter they changed their route and proceeded to Nakkalacheruvu via Theppalavalasa. Due to fear of the Sangam headed by A-5 some persons joined in that Sangam. A-5 asked the members to commit thefts of coconuts or carts. Some amounts were collected in the name of Yuvajana Sangam and spent away by A-5 for consumption of alcohol.The members of the Sangam used to beat the followers of PW-4 and also took away household supply cards from their houses and kept them with A-15. Three weeks prior to the death of deceased when PW-4 was present in his house, he heard A-2, A-3, A-9, A-10, A-17 and A-37 and some others were talking in the Sangam, and it was decided to do away with the life of PW-4 and his son (deceased Kurmi Naidu). One day prior to death of deceased, when PW-9 went to the bank at 12 noon, he found A-1, A-2, A-3, A-5, A-10, A-18, A-19, A-26 and A-37 and some others and at that time A-37 was telling others that Kurmi Naidu had gone to Srikakulam and while returning to the village he should be done to death near Haribabu’s garden, which was suitable for the purpose.One day prior to the death of deceased, G. Ramana (PW-10) was proceeding to the village at about 11 p.m. and when he peeped through beneath the eves of cattle shed of P. Ramamurthy (PW-2) he found all the accused persons. He heard telling A-29 to other accused that the deceased Kurmi Naidu and his father were coming in their way and therefore they have to be killed. He found liquor bottles with glasses. On the next day PW-10 informed PW-4 all that he had heard. But PW-4 did not heed to his words. On the date of occurrence at about 2 p.m. while he was returning from his land, he saw A-3 armed with crowbar like spear, A-1 armed with wooden plank and the remaining accused persons armed with stout sticks proceeding towards Kosta side from Peddagudibadi.On the date of occurrence i.e. 10.4.1991 at about 9 p.m. PW-1 left for Srikakulam, where he collected some amount from S.M. Pyarijan (PW- 17) and after purchasing a dhoti he came to Kasta junction. At that time both the deceased (Kurmi Naidu and Jogulu) were coming on a motorcycle. When PW-1 made a request to them for a lift, they agreed and all three were proceeding towards Patharlapalle village on the motorcycle. Similarly, V. Sreeramulu (PW-2) was returning to Surampeta village after handing over the cycle which which he had hired from P. Jagannadham (PW- 18) at Kosta junction. D. Ankamma (PW-3) after collecting cashew nuts and mangoes was on way to her house at Patharlapalle in the afternoon.When deceased 1 and 2 reached about one kilometer after Derasam near the mango grove of A-29, A-1 armed with a wooden plank beat deceased (Kurmi Naidu) on his head. Thereafter, the motorcycle proceeded further to a distance of 50 yards and at that place there is a culvert. At that time A-4, A-12 and A-25 placed a cart across the road. Therefore, the deceased persons and PW-1 stopped the motorcycle. A-5 and A-6 beat deceased (Kurmi Naidu) with stout sticks on the head. When the deceased (Jogulu) guestioned the accused about such highhandedness, A-2 beat him with a stout stick on his head and as a result of such assaults, deceased Jogulu fell down.Thereafter A-4, A-7, A-9, A-10, A-11, A-13, A-26 beat deceased Kurmi Naidu indiscriminately. When deceased Kurmi Naidu fell down, A-3 poked on his throat with a spear. Then A-1, A-4, A- 7 and A-9 tied the deceased Kurmi Naidu with a rope and carried him towards eastern side. A-23, A-24, A-27 and A-28 tied deceased Jogulu with a rope and also carried him towards eastern side. When some of the accused were saying that PW-1 should not be allowed to live and thought of throwing him into a well, he ran towards eastern side. But fell down at Lankalacheruvu tank bund. Then some of the accused beat him and tied him in the cattle shed.At about 7 p.m., some of the accused came there and untied him and threatened him that he should not reveal the incident to anybody and if he revealed the same, he would be killed. Thereafter PW-1 went to his house and informed about the incident to his elder brother Silla Arjuna. The Sub Inspector of Police, Jagannadharajapuram N. Rama Rao (PW- 24) received a phone message about the kidnapping of Kurmi Naidu on 10.4.1991 at about 5.30 p.m. Then he immediately proceeded to Patharalapalle and he was told by the police personnel present in the picket that persons were talking about kidnap of deceased Kurmi Naidu. At about 9 p.m., the Inspector of Police namely, Kamalanadha Rao came to Pathalapalle. Then they received a vague information that PW-1 who is resident of Sillapeta had sustained injuries.Thereafter, the Sub- Inspector and the Inspector of Police proceeded to Silapeta and found PW-1 with injuries. On the basis of PW-1’s narration, PW-24 scribed a report. Then the Sub-Inspector went to the police station and registered a case. He sent the original first information report to the Court. When the Inspector of Police tried to send PW-1 to the hospital, he refused. Then PW-25 examined PW-1 and recorded his statement and seized M.Os. 6 to 8 in the presence of mediators under mediator’s report.Then the Inspector of Police, the Sub-Inspector and other police personnel formed a special party and combed the area in search of the dead bodies of the deceased in the nearby thrashing floors. On 11.4.1991, early morning at about 5.45 a.m. they noticed two dead bodies in the mango grove of A-25, and the motorcycle was also found nearby. Thereafter they noticed the place of occurrence which is at a distance of about one furlong from the place where two dead bodies were found. On the basis of information lodged, investigation was done and on completion thereof charge sheet was filed for the alleged commission of offences punishable under Sections 147, 148, 201, 307, 323, 326, 341, 342, 397, 302 read with Section 149 and Section 120B and 109 IPC.The High Court by the impugned judgment found that the prosecution version was full of holes, did not appear credible and the so-called eyewitnesses’ evidence does not inspire confidence. Consequentially, the High Court felt that the accused persons were entitled to acquittal and accordingly directed. The State’s appeal was consequentially dismissed. Thus the present case at hand against the judgement of the trial court.ISSUE BEFORE THE COURT: The appeals are interlinked and relate to a Division Bench judgment of the Andhra Pradesh High Court whereby the respondents were acquitted. The deceased persons Kurmi Naidu and Meesala Jogulu were residents of Patharlapalle village. There was a fire accident in their village i.e. Patharlapalle wherein more than four hundred houses were burnt. The Government and the insurance company sanctioned Rs.500/- and Rs.1,000/- respectively to owner of each of the houses which was burnt. A group of persons headed by Hari Babu (A-29) started saying that they had got sanctioned the amount and asked the recipients to pay Rs.100/- each. The persons, who did not pay the amount so demanded came and complained to PW-4. On that score a group rivalry started. One group was headed by A-29 and the other group by PW-4. In the year 1989, G. Ramarao (A-5) started ’Indira Priyadarsini Yuvajana Sangam’. The said Sangam started collecting Rs.50/- from each of the members. Whenever any village refused to join the Sangam, the members of that Sangam used to damage their agricultural implements like carts etc., and also the crops. The said Sangam entertained a grouse against PW-4 thinking that he was causing obstruction to their activities. About one year prior to the death of the deceased (on 10.4.1991) all the accused and some others attacked the house of PW-4 by hurling bombs. As there was no safety in the village, and threat to his life, PW-4 started living in the house which is situated in his land at Nakkalacheruvu. Three months prior to the present incident the deceased Kurmi Naidu came down to Patharlapalle from Madras. All the household supply cards which were taken away by the group of A-29 in his village were kept in the house of A-15. So some residents of Patharlapalle sent a petition to the Mandal Revenue Officer who came to the house of A-15 (Gorle A. Kasavayya) and seized 375 cards. This led to further grouse against PW-4 as he was considered responsible for such seizure of the household supply cards. Thereafter, all the accused decided to do away the life of PW-4. Gorle Ramarao (A-5) is the President of Yuvajana Sangam. Some of the accused and other villagers are members of the Sangam. On 23.12.1990 PW-5 accompanied the deceased to Visakhapatnam. On return from Visakkhapatnam, at Ranasthalam one Komati Satyam informed the deceased and PW-5 that Haribabu and his group were lying in wait for Kurmi Naidu on the road leading to Patharlapalle, and thereafter they changed their route and proceeded to Nakkalacheruvu via Theppalavalasa. Due to fear of the Sangam headed by A-5 some persons joined in that Sangam. A-5 asked the members to commit thefts of coconuts or carts. Some amounts were collected in the name of Yuvajana Sangam and spent away by A-5 for consumption of alcohol. The members of the Sangam used to beat the followers of PW-4 and also took away household supply cards from their houses and kept them with A-15. Three weeks prior to the death of deceased when PW-4 was present in his house, he heard A-2, A-3, A-9, A-10, A-17 and A-37 and some others were talking in the Sangam, and it was decided to do away with the life of PW-4 and his son (deceased Kurmi Naidu). One day prior to death of deceased, when PW-9 went to the bank at 12 noon, he found A-1, A-2, A-3, A-5, A-10, A-18, A-19, A-26 and A-37 and some others and at that time A-37 was telling others that Kurmi Naidu had gone to Srikakulam and while returning to the village he should be done to death near Haribabu’s garden, which was suitable for the purpose. One day prior to the death of deceased, G. Ramana (PW-10) was proceeding to the village at about 11 p.m. and when he peeped through beneath the eves of cattle shed of P. Ramamurthy (PW-2) he found all the accused persons. He heard telling A-29 to other accused that the deceased Kurmi Naidu and his father were coming in their way and therefore they have to be killed. He found liquor bottles with glasses. On the next day PW-10 informed PW-4 all that he had heard. But PW-4 did not heed to his words. On the date of occurrence at about 2 p.m. while he was returning from his land, he saw A-3 armed with crowbar like spear, A-1 armed with wooden plank and the remaining accused persons armed with stout sticks proceeding towards Kosta side from Peddagudibadi. On the date of occurrence i.e. 10.4.1991 at about 9 p.m. PW-1 left for Srikakulam, where he collected some amount from S.M. Pyarijan (PW- 17) and after purchasing a dhoti he came to Kasta junction. At that time both the deceased (Kurmi Naidu and Jogulu) were coming on a motorcycle. When PW-1 made a request to them for a lift, they agreed and all three were proceeding towards Patharlapalle village on the motorcycle. Similarly, V. Sreeramulu (PW-2) was returning to Surampeta village after handing over the cycle which which he had hired from P. Jagannadham (PW- 18) at Kosta junction. D. Ankamma (PW-3) after collecting cashew nuts and mangoes was on way to her house at Patharlapalle in the afternoon. When deceased 1 and 2 reached about one kilometer after Derasam near the mango grove of A-29, A-1 armed with a wooden plank beat deceased (Kurmi Naidu) on his head. Thereafter, the motorcycle proceeded further to a distance of 50 yards and at that place there is a culvert. At that time A-4, A-12 and A-25 placed a cart across the road. Therefore, the deceased persons and PW-1 stopped the motorcycle. A-5 and A-6 beat deceased (Kurmi Naidu) with stout sticks on the head. When the deceased (Jogulu) guestioned the accused about such highhandedness, A-2 beat him with a stout stick on his head and as a result of such assaults, deceased Jogulu fell down. Thereafter A-4, A-7, A-9, A-10, A-11, A-13, A-26 beat deceased Kurmi Naidu indiscriminately. When deceased Kurmi Naidu fell down, A-3 poked on his throat with a spear. Then A-1, A-4, A- 7 and A-9 tied the deceased Kurmi Naidu with a rope and carried him towards eastern side. A-23, A-24, A-27 and A-28 tied deceased Jogulu with a rope and also carried him towards eastern side. When some of the accused were saying that PW-1 should not be allowed to live and thought of throwing him into a well, he ran towards eastern side. But fell down at Lankalacheruvu tank bund. Then some of the accused beat him and tied him in the cattle shed. At about 7 p.m., some of the accused came there and untied him and threatened him that he should not reveal the incident to anybody and if he revealed the same, he would be killed. Thereafter PW-1 went to his house and informed about the incident to his elder brother Silla Arjuna. The Sub Inspector of Police, Jagannadharajapuram N. Rama Rao (PW- 24) received a phone message about the kidnapping of Kurmi Naidu on 10.4.1991 at about 5.30 p.m. Then he immediately proceeded to Patharalapalle and he was told by the police personnel present in the picket that persons were talking about kidnap of deceased Kurmi Naidu. At about 9 p.m., the Inspector of Police namely, Kamalanadha Rao came to Pathalapalle. Then they received a vague information that PW-1 who is resident of Sillapeta had sustained injuries. Thereafter, the Sub- Inspector and the Inspector of Police proceeded to Silapeta and found PW-1 with injuries. On the basis of PW-1’s narration, PW-24 scribed a report. Then the Sub-Inspector went to the police station and registered a case. He sent the original first information report to the Court. When the Inspector of Police tried to send PW-1 to the hospital, he refused. Then PW-25 examined PW-1 and recorded his statement and seized M.Os. 6 to 8 in the presence of mediators under mediator’s report. Then the Inspector of Police, the Sub-Inspector and other police personnel formed a special party and combed the area in search of the dead bodies of the deceased in the nearby thrashing floors. On 11.4.1991, early morning at about 5.45 a.m. they noticed two dead bodies in the mango grove of A-25, and the motorcycle was also found nearby. Thereafter they noticed the place of occurrence which is at a distance of about one furlong from the place where two dead bodies were found. On the basis of information lodged, investigation was done and on completion thereof charge sheet was filed for the alleged commission of offences punishable under Sections 147, 148, 201, 307, 323, 326, 341, 342, 397, 302 read with Section 149 and Section 120B and 109 IPC. The High Court by the impugned judgment found that the prosecution version was full of holes, did not appear credible and the so-called eyewitnesses’ evidence does not inspire confidence. Consequentially, the High Court felt that the accused persons were entitled to acquittal and accordingly directed. The State’s appeal was consequentially dismissed. Thus the present case at hand against the judgement of the trial court. Considering the large number of accused persons, should minor discrepancies in evidences have found favour with the High Court to direct acquittal? RATIO OF THE COURTCourt opined that though mere acquittal of large number of co-accused persons does not per se entitle others to acquittal, the Court has a duty in such cases to separate the grain from the chaff. If after sieving the untruth or unacceptable portion of the evidence residue is sufficient to prove the guilt of the accused, there is no legal bar in convicting a person on the evidence which has been primarily disbelieved vis-‘-vis others. But where they are so inseparable that any attempt to separate them would destroy the substratum on which the prosecution version is founded, then the Court would be within its legal limits to discard the evidence in total.In this case the occurrence allegedly took place at about 4.00 p.m. on 10.4.1991, FIR was lodged at about 11.30 p.m. and reached Court at about 10.00 a.m. on 11.4.1991. The delay, considering the fact that there was police outpost just in front of PW4’s house and Court was at a very short distance, has not been explained. Additionally, as rightly submitted by learned counsel for the accused-respondents, A-2 was not indicated to be the author of the assaults so far as deceased Jogulu is concerned There is clear contradictions between the version of PW-1 on the one hand and PWs 2 and 3 on the other as regards the assailants of deceased No.2 (Jogulu). The evidence of PW-3 who claimed to have informed PW-4 is equally baffling.According to the prosecution version, the dead bodies were found 15 to 20 yard from the culvert near which the alleged occurrence took place. It is highly improbable that when PW-4 went for searching the dead bodies on allegedly getting information about the assaults, they could not trace the bodies. The plea that he could not lodge the FIR and had to wait for searching by police which purportedly got the dead bodies early in the morning is equally implausible. Certain other factors, which otherwise would not have been of much relevance, have assumed importance in the present case.If PW-1 had stated before the police, the details as contained in the FIR, there was really no necessity of calling a dog squad on 11.4.1991. This to a great extent shows that the police were not sure who the assailants were. Admittedly, dog squad was taken to the place of occurrence at about 1.00 p.m. on 11.4.1991, and dogs were taken to various houses in the village to know about the assailants. PW-24’s statement that dogs are taken when assailants are not known is very significant.There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal.The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented.If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (AIR 1973 SC 2622)DECISION HELD BY COURT: Court opined that though mere acquittal of large number of co-accused persons does not per se entitle others to acquittal, the Court has a duty in such cases to separate the grain from the chaff. If after sieving the untruth or unacceptable portion of the evidence residue is sufficient to prove the guilt of the accused, there is no legal bar in convicting a person on the evidence which has been primarily disbelieved vis-‘-vis others. But where they are so inseparable that any attempt to separate them would destroy the substratum on which the prosecution version is founded, then the Court would be within its legal limits to discard the evidence in total. In this case the occurrence allegedly took place at about 4.00 p.m. on 10.4.1991, FIR was lodged at about 11.30 p.m. and reached Court at about 10.00 a.m. on 11.4.1991. The delay, considering the fact that there was police outpost just in front of PW4’s house and Court was at a very short distance, has not been explained. Additionally, as rightly submitted by learned counsel for the accused-respondents, A-2 was not indicated to be the author of the assaults so far as deceased Jogulu is concerned There is clear contradictions between the version of PW-1 on the one hand and PWs 2 and 3 on the other as regards the assailants of deceased No.2 (Jogulu). The evidence of PW-3 who claimed to have informed PW-4 is equally baffling. According to the prosecution version, the dead bodies were found 15 to 20 yard from the culvert near which the alleged occurrence took place. It is highly improbable that when PW-4 went for searching the dead bodies on allegedly getting information about the assaults, they could not trace the bodies. The plea that he could not lodge the FIR and had to wait for searching by police which purportedly got the dead bodies early in the morning is equally implausible. Certain other factors, which otherwise would not have been of much relevance, have assumed importance in the present case. If PW-1 had stated before the police, the details as contained in the FIR, there was really no necessity of calling a dog squad on 11.4.1991. This to a great extent shows that the police were not sure who the assailants were. Admittedly, dog squad was taken to the place of occurrence at about 1.00 p.m. on 11.4.1991, and dogs were taken to various houses in the village to know about the assailants. PW-24’s statement that dogs are taken when assailants are not known is very significant. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (AIR 1973 SC 2622) Court held that It would not be appropriate in the circumstances of the case to interfere with the elaborately discussed and well-reasoned judgment of the High Court. The appeals fail and are dismissed.

Appeal232 2397 Gorle S. Naidu State of A.P. and Ors. DATE OF JUDGMENT: 15 12 2003 DORAISWAMY RAJU & ARIJIT PASAYAT JUDGMENT ARIJIT PASAYAT J CRIMINAL APPEAL NOS. OF 2003 Arising out of SLPNOS. 3088 90 1997 Leave granted in SLP(Crl.)Nos. 3088 90 97 These six appeals are interlinked and relate to a Division Bench judgment of the Andhra Pradesh High Court whereby the respondents were acquitted. Criminal Appeal Nos. 232 234 1997 is by Gorle Suryanarayana Naiduthe father of the Kurmi Naidu who along with Meesala Jogulu lost lives on 10.4.1991 purportedly on the basis of assaults made by respondents accused In all 39 persons faced trial on the accusations of being responsible for the death of aforesaid two persons. It is to be noted that the trial Court acquitted Gorle RamaraoGorle LaxmanaraoGorle SatyamMeesala NarayanaraoGorle Asirinaidu KasavayyaRelli RamachandraGorle Ramaswamy Gorle Chinnarao Gorle Ramamurthy O Dihbadu Gorle Satyam Gorle Surappalanaidu Gorle Papinaidus Gorle Haribabu Gorle VenunaiduDatti AppayyaGorle Sreeramulu Relli Sanyasapudu Gorle Sanasappadu Pisini Satyam Gorle Bodinaidu Buri Papuduand Potnuru Raminaiduwere convicted for offence punishable under Section 341 of the Indian Penal Code 1860and sentenced to undergo rigorous imprisonment for one year with a fine of Rs.500 . Meesala ChandramouliGorle RamaswamyGorle Harinarayana A 7) Muntha PrasadaraoPyla VenkatasuriGorle SanyasappaduGorle RamakrishnaGorle RaminaiduMuntha BanojiRelli PaoinaiduMuntha PardhasaradhGorle Ramanaand Potnuru Raminaiduwere convicted for offence punishable under Section 324 IPC and sentenced to undergo RI for two years and also to pay a fine of Rs.500 each. Gorle AsirinaiduGorle Vasudevaraoand Gorle Mohanaraowere convicted for the offence punishable under Section 302 IPC and each was sentenced to undergo imprisonment for life. The sentences of imprisonment imposed on A 16 and A 22 were directed to run concurrently. Three appeals were filed before the Andhra Pradesh High Court two by the convicted accused persons and one by the State against acquittal of the accused persons as noted above. Sans unnecessary details the prosecution version as unfolded during trial is as follows The deceased persons Kurmi Naidu and Meesala Jogulu were residents of Patharlapalle village. The deceased Kurmi Naidu was the second son of the first wife of Gorle Suryanarayana Naidustarted saying that they had got sanctioned the amount and asked the recipients to pay Rs.100 each. The persons who did not pay the amount so demanded came and complained to PW 4. On that score a group rivalry started. One group was headed by A 29 and the other group by PW 4. In the year 1989 G. Ramaraostarted ’Indira Priyadarsini Yuvajana Sangam’. The said Sangam started collecting Rs.50 from each of the members. Whenever any village refused to join the Sangam the members of that Sangam used to damage their agricultural implements like carts etc. and also the crops. The said Sangam entertained a grouse against PW 4 thinking that he was causing obstruction to their activities. About one year prior to the death of the deceasedall the accused and some others attacked the house of PW 4 by hurling bombs. As there was no safety in the village and threat to his life PW 4 started living in the house which is situated in his land at Nakkalacheruvu. Three months prior to the present incident the deceased Kurmi Naidu came down to Patharlapalle from Madras. All the household supply cards which were taken away by the group of A 29 in his village were kept in the house of A 15. So some residents of Patharlapalle sent a petition to the Mandal Revenue Officer who came to the house of A 15 Gorle A. Kasavayya) and seized 375 cards. This led to further grouse against PW 4 as he was considered responsible for such seizure of the household supply cards. Thereafter all the accused decided to do away the life of PW 4. Gorle Ramaraois the President of Yuvajana Sangam. Some of the accused and other villagers are members of the Sangam. On 23.12.1990 PW 5 accompanied the deceased to Visakhapatnam. On return from Visakkhapatnam at Ranasthalam one Komati Satyam informed the deceased and PW 5 that Haribabu and his group were lying in wait for Kurmi Naidu on the road leading to Patharlapalle and thereafter they changed their route and proceeded to Nakkalacheruvu via Theppalavalasa. Due to fear of the Sangam headed by A 5 some persons joined in that Sangam. A 5 asked the members to commit thefts of coconuts or carts. Some amounts were collected in the name of Yuvajana Sangam and spent away by A 5 for consumption of alcohol. The members of the Sangam used to beat the followers of PW 4 and also took away household supply cards from their houses and kept them with A 15. Three weeks prior to the death of deceased when PW 4 was present in his house he heard A 2 A 3 A 9 A 10 A 17 and A 37 and some others were talking in the Sangam and it was decided to do away with the life of PW 4 and his sonwas proceeding to the village at about 11 p.m. and when he peeped through beneath the eves of cattle shed of P. Ramamurthyhe found all the accused persons. He heard telling A 29 to other accused that the deceased Kurmi Naidu and his father were coming in their way and therefore they have to be killed. He found liquor bottles with glasses. On the next day PW 10 informed PW 4 all that he had heard. But PW 4 did not heed to his words. On the date of occurrence at about 2 p.m. while he was returning from his land he saw A 3 armed with crowbar like spear A 1 armed with wooden plank and the remaining accused persons armed with stout sticks proceeding towards Kosta side from Peddagudibadi On the date of occurrence i.e. 10.4.1991 at about 9 p.m. PW 1 left for Srikakulam where he collected some amount from S.M. Pyarijanand after purchasing a dhoti he came to Kasta junction. At that time both the deceasedwere coming on a motorcycle. When PW 1 made a request to them for a lift they agreed and all three were proceeding towards Patharlapalle village on the motorcycle. Similarly V. Sreeramuluwas returning to Surampeta village after handing over the cycle which which he had hired from P. Jagannadhamat Kosta junction. D. Ankammaafter collecting cashew nuts and mangoes was on way to her house at Patharlapalle in the afternoon. When deceased 1 and 2 reached about one kilometer after Derasam near the mango grove of A 29 A 1 armed with a wooden plank beat deceasedon his head. Thereafter the motorcycle proceeded further to a distance of 50 yards and at that place there is a culvert. At that time A 4 A 12 and A 25 placed a cart across the road. Therefore the deceased persons and PW 1 stopped the motorcycle. A 5 and A 6 beat deceasedwith stout sticks on the head. When the deceased Jogulu) guestioned the accused about such highhandedness A 2 beat him with a stout stick on his head and as a result of such assaults deceased Jogulu fell down. Thereafter A 4 A 7 A 9 A 10 A 11 A 13 A 26 beat deceased Kurmi Naidu indiscriminately. When deceased Kurmi Naidu fell down A 3 poked on his throat with a spear. Then A 1 A 4 A 7 and A 9 tied the deceased Kurmi Naidu with a rope and carried him towards eastern side. A 23 A 24 A 27 and A 28 tied deceased Jogulu with a rope and also carried him towards eastern side. When some of the accused were saying that PW 1 should not be allowed to live and thought of throwing him into a well he ran towards eastern side. But fell down at Lankalacheruvu tank bund. Then some of the accused beat him and tied him in the cattle shed. At about 7 p.m. some of the accused came there and untied him and threatened him that he should not reveal the incident to anybody and if he revealed the same he would be killed. Thereafter PW 1 went to his house and informed about the incident to his elder brother Silla Arjuna. The Sub Inspector of Police Jagannadharajapuram N. Rama Raoreceived a phone message about the kidnapping of Kurmi Naidu on 10.4.1991 at about 5.30 p.m. Then he immediately proceeded to Patharalapalle and he was told by the police personnel present in the picket that persons were talking about kidnap of deceased Kurmi Naidu. At about 9 p.m. the Inspector of Police namely Kamalanadha Rao came to Pathalapalle. Then they received a vague information that PW 1 who is resident of Sillapeta had sustained injuries. Thereafter the Sub Inspector and the Inspector of Police proceeded to Silapeta and found PW 1 with injuries. On the basis of PW 1’s narration PW 24 scribed a report. Then the Sub Inspector went to the police station and registered a case. He sent the original first information report to the Court. When the Inspector of Police tried to send PW 1 to the hospital he refused. Then PW 25 examined PW 1 and recorded his statement and seized M.Os. 6 to 8 in the presence of mediators under mediator’s report. Then the Inspector of Police the Sub Inspector and other police personnel formed a special party and combed the area in search of the dead bodies of the deceased in the nearby thrashing floors. On 11.4.1991 early morning at about 5.45 a.m. they noticed two dead bodies in the mango grove of A 25 and the motorcycle was also found nearby. Thereafter they noticed the place of occurrence which is at a distance of about one furlong from the place where two dead bodies were found. On the basis of information lodged investigation was done and on completion thereof charge sheet was filed for the alleged commission of offences punishable under Sections 147 148 201 307 323 326 341 342 397 302 read with Section 149 and Section 120B and 109 IPC. During trial Gorle Lottayyagari Satyamdied and case against Muntha Pentadu @ Barroduwas separated as he had absconded. PW 4 who is the father of deceased Kurmi Naidu was stated to be the intended target. Reliance was placed by the trial Court on the evidence of PWs 1 2 and 3 to conclude that accusations against some have been established though against others it was not credible and therefore benefit of doubt was extended to them. The High Court by the impugned judgment found that the prosecution version was full of holes did not appear credible and the so called eyewitnesses’ evidence does not inspire confidence. The evidence of PW 1 was held to be unreliable as the same appeared to be the outcome of careful planning and deliberation. Though he claimed to have sustained several serious injuries he did not go to the hospital for treatment for nearly three days. He did not indicate the names of all the assailants who allegedly had beaten him. According to him after the incident he went to his house and told his brother that person of Peddagudibadi and Thatigudibedi had beaten him and the deceased. Though he knew the names of the accused persons prior to giving the information he did not name them specifically. There was delay in lodging the report and no explanation was offered for it. There was also considerable delay in sending the FIR to the Court. There was no reason as to why PW 4 did not lodge the report to the police though the police outpost was situated just in front of his house if he was really informed by PW 1 and PW 3 as claimed by them. It was noticed that the prosecution version was also incredible in the sense that if the accused persons who were 39 in number had the motive of killing PW 4 they could have done so in the village instead of going to the mango grove of A 29 and waiting for coming of deceased Kurmi Naidu and then attack him without any motive for doing so. Neither of the deceased was their target and they did not have any motive for killing them. In a faction ridden village when two rival groups were craving for the blood of each other the prosecution version lacks credibility and is full of inconsistencies. The trial Court was of the view that entire evidence was not to be discarded and even taking note of the improvements discrepancies the evidence was sufficient for conviction of some of the accused persons. Accordingly as noted earlier some of the accused were convicted and others were acquitted. Judgment of the trial Court was assailed by the convicted accused questioning their conviction and by State challenging the acquittals. By a common judgment three appeals two by the accused and one by the State) were disposed of. The High Court noticed that there was considerable delay in lodging the complaint recording statement of the witnesses and there was no cogent material for statements. The correct yardstick to be applied for evaluation of evidence was not done by the trial Court and vague conclusions were arrived at. The trial Court failed to notice that the prosecution tried to improve its case from stage to stage and from one witness to another. That being so the prosecution version collapsed on account of incredibility in it. Consequentially the High Court felt that the accused persons were entitled to acquittal and accordingly directed. The State’s appeal was consequentially dismissed. In the present appeals learned counsel for PW 4 father of deceased No.1 and the State contended that the approach of the High Court is fallacious. Considering the large number of accused persons minor discrepancies in evidence should not have found favour with the High Court to direct acquittal. It was submitted that PW 1 was afraid apprehending danger to his own life after seeing the manner in which the accused persons assaulted and killed two innocent persons. Merely because he did not go for medical examination immediately though asked by the police that cannot be a ground sufficient to discard his credible evidence. Merely because PWs 1 2 and 3 were in some way related with the accused persons that cannot be a ground for discarding their evidence. PW 1 was an injured person and therefore his evidence should have been acted upon as he has sufficiently explained his presence at the spot and has also indicated why he happened to be at the spot of occurrence. Similarly the non lodging of information for long cannot be a suspicious circumstance when one considers the mental condition of PW 4 the father. He immediately went out to search for the dead bodies and was told on the next day morning about finding of the dead bodies. Thereafter the information was lodged around 11.30 a.m It was further submitted that the High Court did not analyse the evidence in detail and in a cryptic manner accepted the submissions of the accused persons and directed acquittal. Learned counsel for the accused on the other hand submitted that the High Court has analysed the evidence after considering the findings recorded by the trial Court. It has highlighted as to how the prosecution version does not inspire confidence. It is to be noted that originally there were 39 persons. A 31 died during trial and so far as A 33 is concerned the trial was separated. The trial Court acquitted 21 persons on the same evidence and convicted 16. The evidence is so full of contradictions that the benefit extended to 21 acquitted persons should have also been applied logically to the persons who were convicted by the trial Court and the High Court corrected the legal infirmities which the trial Court did not notice and came to the right conclusion about innocence of the accused persons. In any event it was pointed out that PW 1 does not speak of any attack on the deceased by A 2. According to him deceased Joguluhas received a single blow which caused his death and the same was inflicted by A 10 who was acquitted by the trial Court. PW 1 categorically involved A 10 as the assailant of D 2. Though PWs 2 and 3 named A 2 as the assailant that itself improbabilises the prosecution version. Only one blow was held to be a fatal blow and it could not have been inflicted by A 2 and A 10 separately. As there is inconsistency as regards who is the assailant of D 2 the benefit of doubt was clearly available and the High Court has held this to be a factor for acquitting A 2. The evidence of PW 2 and PW 3 show that during investigation they did not name the accused persons categorically. In a vague way it was stated that supporters of A 7 had hit the deceased. To a similar effect was the evidence of PWs 1 and 3. PWs 2 and 3 have also accepted about non mentioning specifically names of the accused persons to be the assailants. So far as PW 3 is concerned she stated before the Magistrate in her statement recorded under Section 164 of the Code of Criminal Procedure 1973that the occurrence took place at 10.00 a.m. This is at great variance with the prosecution version as unfolded during trial. Additionally she was not available for a period of 3 days and her statement was not recorded. No explanation was offered for her absence. Accordingly it was submitted that the High Court’s judgment does not suffer from any infirmity to warrant interference at our hands. Though mere acquittal of large number of co accused persons does not per se entitle others to acquittal the Court has a duty in such cases to separate the grain from the chaff. If after sieving the untruth or unacceptable portion of the evidence residue is sufficient to prove the guilt of the accused there is no legal bar in convicting a person on the evidence which has been primarily disbelieved vis ‘ vis others. But where they are so inseparable that any attempt to separate them would destroy the substratum on which the prosecution version is founded then the Court would be within its legal limits to discard the evidence in toto. In the aforesaid background the evidence of PWs 1 2 and 3 who are stated to be eyewitnesses is to be analysed. The High Court has doubted the truthfulness of the PW 1 who claimed that he did not get medically examined being afraid of the accused persons. That is clearly unacceptable. He claimed to have stated before the police officers about the incident and on the basis of that the first information report was recorded. Thereafter there was no reason for him to be apprehensive as claimed not to go for medical treatment. If really he was so terrified it is not understood as to how after two days the fear vanished and he went for treatment. The conduct of PW 4 the father of deceased No.1 is equally shrouded in mystery. Though the Police post was just in front of his house he did not choose to inform the police and the FIR was lodged after considerable length of time. Though in all case delay in lodging the FIR does not attract suspicion yet on the facts of a particular case the same is certainly a factor to be considered. In the case at hand in the absence of any plausible explanation for the delay it certainly was a suspicious circumstance making the prosecution version vulnerable. In this case the occurrence allegedly took place at about 4.00 p.m. on 10.4.1991 FIR was lodged at about 11.30 p.m. and reached Court at about 10.00 a.m. on 11.4.1991. The delay considering the fact that there was police outpost just in front of PW4’s house and Court was at a very short distance has not been explained. Additionally as rightly submitted by learned counsel for the accused respondents A 2 was not indicated to be the author of the assaults so far as deceased Jogulu is concerned There is clear contradictions between the version of PW 1 on the one hand and PWs 2 and 3 on the other as regards the assailants of deceased No.2Supreme 567). The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of MaharashtraRamesh Babulal Doshi v. State of GujaratSupreme 167) Jaswant Singh v. State of HaryanaSupreme 320) Raj Kishore Jha v. State of Bihar and Ors.Supreme 152) State of Punjab v. Karnail SinghSupreme 508 and State of Punjab v. Pohla Singh and Anr.Supreme 17) and Suchand Pal v. Phani Pal and Anr.SC 17). That being so it would not be appropriate in the circumstances of the case to interfere with the elaborately discussed and well reasoned judgment of the High Court. The appeals fail and are dismissed.

Provisions like preventive detention must be used only in cases where ordinary law is not sufficient: High Court of Jammu and Kashmir

Preventive detention allows for a person to be detained on the basis of his past record for a crime he had not yet committed. This provision violates the fundamental rights of the person being detained and hence must be used only in exceptional cases where ordinary law is insufficient. This was found in the judgement passed in the case of Shaheen Ahmad Parray [WP (Crl) no. 133/2020] by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Ali Mohammad Magrey on 19th July 2021. The petitioner, Shaheen Ahmad Parray through the present Habeas Corpus petition challenged the detention order passed by the District Magistrate in Shopian which detained him under provisions of the Jammu and Kashmir Public Safety Act 1978. The petitioner contended that firstly the allegations made against his are false and fabricated by the police, secondly that the grounds of detention were vague and finally that he was not supplied with the dossier and therefore prevented from making effective representation against his representation. On the otherhand the learned counsel for the respondents maintained that the impugned order was in consonance with law and hence should be upheld by the court. It was noted by the High Court that there was nothing on the file that suggested that the grounds of detention couched in English were explained to the detenu in a language which he understood which meant his right to make representation had indeed been violated. The case of Pooja Batra v Union of India & Others [5 SCC 296 of 2009] was cited, where it was held by the Supreme Court of India stated that “since an order of detention in prison involves the fundamental rights of citizens, freedom of movement and pursuit of normal life and liberty, no absolute immunity can be claimed by the authorities as to the decision arrived, and it is open to the Courts to see whether there has been due and proper application of mind and that all the relevant and vital materials for the purpose have been noticed, adverted to and considered”. This was a principle also laid down in the case of Younus Nabi Naik v State of Jammu & Kashmir [JKJ 102 of 2020 (2)]. The court reiterated that steps must always be taken to ensure that a provison like preventive detention is not misused by authorities in any manner and is reserved for cases where ordinary law was insufficient.

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR WPno. 133 2020 Reserved on 14.07.2021 Pronounced on 19.07.2021 …. Petitioner(s) Through: Mr Syed Sajad Geelani Advocate Through: Mr Asif Maqbool Dy.AG Union Territory of JK and others Shaheen Ahmad Parray HON’BLE MR JUSTICE ALI MOHAMMAD MAGREY JUDGE By the present habeas corpus petition the detenue through his father Ghulam Mohammad Parray has challenged the detention Order No. 24 DMS PSA 2019 dated 10.08.2019 for short impugned order issued by the District Magistrate Shopian whereby the detenue namely Shaheen Ahmad Parray S o Ghulam Mohammad Parray R o Shangpora Zainapora District Shopian has been detained under the provisions of the Jammu and Kashmir Public Safety Act 1978 for short Act. Briefly stated the case of the petitioner is that the detenue was arrested by the Police Station Zainapora in case FIR no. 53 2016 & 54 2016 allegedly for the commission of offences punishable in terms of Section 13 ULA Act without any rhyme reason or justification. The District Magistrate Shopian detained him in the preventive custody under the provisions of J&K Public Safety Act 1978 in terms of the impugned order and lodged him in Central Jail Srinagar when the petitioner was in custody having been arrested on 4th August 2019. The challenge to the impugned order is inter alia made on the grounds that the allegations against the detenue are false and have been fabricated by the police to justify the illegal action of detaining him in preventive custody the grounds of detention are vague non existent and the impugned order being based on such vague non existent grounds deserves to be quashed the detenue is innocent and has not committed any offence of whatsoever nature the detaining authority has WPno. 133 2020 not applied its mind while issuing the impugned order the detenue was already arrested and was in police custody in connection with a case FIR no. 53 2016 & 54 2016 and had not applied bail therefore his preventive detention despite him being in the police custody is uncalled for the material relied upon has no rational nexus with the satisfaction recorded by the detaining authority vis à vis the alleged activities of the detenue being prejudicial to Security of State the material in the shape of dossier has not been furnished to the detenue nor has he been furnished the copy of FIR statements allegedly recorded under section 161 of the Code of Criminal Procedure seizure memo recovery memo as mentioned in the grounds of detention so that the detenue could have made an effective representation against his detention to the Competent Authority the petitioner is shown to be involved in connection with FIR no. 53 2016 & 54 2016 and it does not connect with the dossier supplied in August 2019 there is no plausible explanation for three years long delay for detaining the detenue in preventive custody for a case registered three years back there is no justification given as to why the ordinary law was not sufficient for taking care of his activities etcetera. Counter has been filed by the respondents resisting therein the claim of the petitioner. Heard learned counsel for the parties and considered the submissions made. Learned counsel for the petitioner submits that it is unwarranted and illegal to detain an individual under the provisions of public safety Act on the same set of facts on which he previously stands arrested and was in police custody already. He further submits that there is a complete non application of mind on the part of Detaining Authority as the order of detention is issued against the detenue for his activities being prejudicial to the security of State when there is no material placed before the Detaining Authority to reach to such conclusion therefore the grounds of detention and the impugned order are inconsistent with each other which makes the impugned order bad in law therefore deserves to be quashed. Learned counsel for the petitioner has in order to strengthen his submissions referred to and relied upon 2017 vol. 2 SLJ 650 titled Bilal Ahmad Dar v. State of J&K and anr 2018 vol. 2 SLJ 774 titled Bashir Ahmad Rather v. State of J&K and others AIR 1999 SC 618 tiled as Powanammal v. State of Tamil Nadu and anr AIR 2020 SC 1936 titled as Rekha v. State of Tamil Nadu and AIR 1989 SC WPno. 133 2020 1234 titled as Chhagan Baghwan Kahar v. N. H. Kalna and others 2 SCC 664 titled T. V. Sravanan Alias SAR Prasana v. Stae through Secretary and On the other hand learned Counsel appearing for the respondents while resisting the claim of the petitioner submits that the impugned order is quite in consonance with law and the safeguards as were required to be taken in terms of the provisions of the Act have been taken. Although the detention records have been produced by the learned Government Counsel but it does not contain anything as would suggest that there were compelling reasons for the respondents for keeping the detenue in preventive custody and the ordinary law was not sufficient to take care of his alleged subversive activities. 10. As per pleadings and contentions raised at bar the detenue has been prevented from making an effective representation against his detention as he was not supplied the dossier and the other allied material and has as such been deprived of an important constitutional right and that the detaining authority did not apply his mind while passing the detention order and has not revealed as to on what materials he assumed subjective satisfaction regarding necessity of having the subject detained when the detenu was in police custody in connection with case FIR no. 53 2016 and 54 2016 of police station Zainapora. 11. There is nothing on the file to show or suggest that the grounds of detention couched in English language were explained to the detenu in a language understood by him. This according to the view taken by Hon’ble Apex Court in “Lallubhai Jogibhai Patel v. Union of India 2 SCC 427” the detenu did not know English while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining authority stated that while serving the grounds of detention were fully explained to the detenu but the Apex Court held that was not a sufficient compliance with the mandate of Article 22(5) which requires that the grounds of detention must be communicated to the detenu. The Apex Court observed as under: “Communicate’ is a strong word which means that sufficient knowledge of the basic facts constituting the ‘grounds’ should be imparted effectively and fully to the detenu in writing in a language which he understands. The WPno. 133 2020 whole purpose of communicating the ‘grounds’ to the detenu is to enable him to make a purposeful and effective representation. If the ‘grounds’ are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands then that purpose is not served and the constitutional mandate in Article 22(5) is infringed.” In view of the law laid down by the Apex Court in case titled Lallubhai Jogibhai Patel v. Union of India vitiates the detention order as not amounting to effect communication of grounds and resultant deprivation of the right to make representation against the same. In yet another pronouncement reported as 5 SCC 296 titled Pooja Batra v. Union of India & Ors. the Honble Supreme Court expounded on the jurisdiction of the Court while considering the challenge to the detention order under judicial review. It was held as follows: “30. It is settled law that Courts exercising powers of judicial review do not consider the challenge to an order of detention as if on an appeal reappreciating the materials yet since an order of detention in prison involves the fundamental rights of citizens freedom of movement and pursuit of normal life and liberty no absolute authorities as to the decision arrived and it is open to the Courts to see whether there has been due and proper application of mind and that all the relevant and vital materials for the purpose have been noticed adverted to and considered.” immunity can be claimed by 14. The Division Bench of this Court has also in a case reported as 2020 JKJ 102 titled Younis Nabi Naik v. Stae of J&K & others has laid down the same principle. In view of above I am of the considered view that there must have been some additional material adverted to and considered by the Detaining Authority in arriving at a conclusion that the ordinary law was not enough for deterring the detenue from indulging in the alleged subversive activities registered against the detenue three years back where no bail has even been granted to him and that being unavailable in the instant case renders the impugned order as bad in law. Nowhere do the respondents state that from the year of registration of FIR 53 2016 & 54 2016 till the year of issuance of impugned order i.e. 2019 the detenue has indulged in activities that additionally constituted to commission of offence which compelled the Detaining Authority to issue the impugned order. WPno. 133 2020 In the above background the petition succeeds and is allowed as such. The impugned detention order No. 24 DMS PSA 2019 dated 10.08.2019 issued by the District Magistrate Shopian detaining the detenue namely Shaheen Ahmad Parray S o Ghulam Mohammad Parray R o Shangpora Zainapora District Shopian in preventive detention is quashed and the detenue is directed to be released from the preventive custody forthwith. 17. Records be returned to the learned Government Counsel under receipt. Ali Mohammad Magrey) Judge Amjad lone PS Whether approved for reporting: Yes No. WPno. 133 2020

Accused cannot be arrested soon after the registration of an FIR: Punjab & Haryana High Court

When a complaint discloses the commission of a cognizable offence while filing an FIR, the arrest cannot be merely done through registration of an FIR is mandatory under section 154 of Crpc and mere allegation of commission of an offence cannot amount to an arrest. This remarkable judgement was passed by the Punjab & Haryana High Court by Hon’ble Mr Justice Raj Mohan Singh in the matter of Hitesh Bhardwaj versus State of Punjab and others [CRM-M No. 26794 of 2020 (O&M)]. Compulsory registration is requiring of an FIR is not only to ensure transparency in the criminal justice delivery system, but it also ensures judicial oversight as the Police Officer has to inform the Magistrate about lodging an FIR forthwith in terms of Section 157(1) Crpc. Also, the cognisable offence is to be brought before the investigating officer as well as before the Magistrate to maintain a transparent environment. This court differentiated between preliminary enquiry and an investigation stating that “Preliminary inquiry is different than the investigation. Inquiry is other than a trial which is relatable to a judicial act and not to the steps taken by the Police towards investigation after registration of FIR under Section 154 Crpc. The concept of preliminary inquiry may be a special procedure prescribed under CBI Manual to be read with Section 154 Crpc. The preliminary inquiry is contained in Chapter IX of the Crime Manual of CBI, but the same is not a statute. It has not been enacted by the Legislature, rather the same is an administrative order for internal guidance of the CBI officers.” The court dictated that preliminary inquiry can be done in cases like matrimony, cases relating to a family dispute, offences related to commercial acts, in case of medical negligence, corruption cases, cases which suffer an abnormal delay of more than three months in initiating criminal prosecution or reporting the matter to the police without satisfactory explanation. This court contented that “The Police Officer cannot embark upon any elaborate inquiry to ascertain genuineness or reasonableness of the information and cannot refuse registration of the criminal case. It does not lie under the domain of Police Officer to substitute preliminary/detailed inquiry with the investigation of the case, as the investigation can only be done after registration of an FIR.”

on 31 10 CRM M No.2679201IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARHCRM M No.267920Date of Decision: 27.10.2020Hitesh Bhardwaj......Petitioner VsState of Punjab and others.....RespondentsCORAM: HON BLE MR. JUSTICE RAJ MOHAN SINGHPresent:Mr. Abhinav Sood Advocatefor the petitioner.Mr. Ramdeep Pratap Singh D.A.G. Punjab.Mr. A.P.S. Deol Senior Advocate withMr. H.S. Deol Advocatefor respondent No.4. RAJ MOHAN SINGH J.The case was taken up for hearing through videoconferencing.CRM No.243820in addition tothe inquiry report of DSP City Batalaandspeaking order dated 30.07.2020 passed by the SeniorSuperintendent of Police Batala2[2].For the reasons mentioned in the application and in theinterest of justice the same is allowed. Additional documentsare taken on record subject to all just exceptions.Main case[3].Petitioner has preferred this petition under Section 482of the Code of Criminal Procedure seeking appropriatedirections to register a First Information Report in pursuance ofcriminalcomplaint dated 22.03.2020 filed by the petitioner inrespect of murder of Ramesh Kumari Bhardwajagainst private respondents No.4 to 8.[4].Brief facts of the case are that a complaint was filedbefore respondent No.3 against respondent No.4respondent No.5respondent No.6and respondentsNo.7 and 8with the allegationsthat respondent No.4 was involved in the murder of his fatherSh. Deepak Bhardwaj for which FIR No.1213 wasregistered at Police Station Vasant Kunj South Police Station New Delhi. He faced trial for about seven years and wasacquitted. Now appeal against acquittal is pending in the DelhiHigh Court. Mother of petitioner was living with respondentNo.4. She succumbed to the demand of respondent No.4 forappointing him the Director in all the Companies of family. In the on 31 10 CRM M No.2679203year 2014 respondents No.4 and 5 forced the mother ofpetitioner to register a Will in favour of respondent No.4. TheWill was registered in a secret manner in favour of respondentNo.4. Later on mother of petitioner made a handwritten Will on22.02.2020 and this fact was told to the petitioner by his motherfew days before her murder. When respondent No.4 came toknow about this Will he was very much annoyed with themother. Mother of petitioner was very much afraid of respondentNo.4.would accompany her to Punjab.Respondents No.4 to 8 along with Sandeep and Balbir Singh(Balli) reached the house of respondents No.7 and 8 on08.03.2020 at midnight about 1.30 A.M. Respondent No.4insisted his mother not to sleep in common room rather to sleepin his room only. Respondent No.4 and his mother rested in oneroom whereas Balbir Singhand Sandeep slept in anotherroom. On 08.03.2020 when Balbir Singhwoke up at 7.00 on 31 10 CRM M No.2679204A.M. he found that mother of petitioner was not around. Heremained under the belief that she might have gonesomewhere. Having waited till 8.00 A.M. he inquired fromrespondent No.5 and respondent No.8 but they did not informhim properly. At about 10.00 A.M. Balbir Singhwasinformed by respondent No.4 that his mother suffered heartattack early in the morning and she was taken to Hospital inBatala. Thereafter Balbir Singhwas taken to AkalHospital by respondent No.4 to show the dead body of hismother. who were sleeping inadjacent room were not informed. Respondent No.6 was inDelhi for the last five years staying with his sisterbut on 08.03.2020 he went to Batala from Delhi.Complainant further alleged that he was not informed byrespondent No.4 in respect of alleged heart attack of his mother.Other relatives were also not informed. It was only Balbir Singh on 31 10 CRM M No.2679205(Balli) who made a telephonic call to the petitioner at about10.00 A.M. On 08.03.2020. It has been alleged that there was aconspiracy and foul play on behalf of private respondents inmurdering the mother of complainant.[7].Earlier the petitioner filed a petition bearing CRM MNo.163820 with the grievance that the Police is nottaking any action in the matter despite filing of complaint dated22.03.2020. The said petition was disposed of by the High Courtvide order dated 25.06.2020. The order reads as under: “1. Case is being taken up for hearing through VideoConferencing due to the outbreak of pandemic Covid 19. 2. Grievance of the petitioner is that his parents weremurdered by none else than his brother i.e. respondentNo.4 but the police is not taking any action in the matterdespite complaint Annexure P 8 dated 22.03.2020. 3. Learned counsel states that the petitioner wouldbe satisfied if the petition is disposed of by directingrespondent No.3 to consider and decide the complaintAnnexure P 8 dated 22.03.2020 in accordance with law. 4. Notice of motion. 5. Mr. Harpreet Singh Multani DAG Punjab acceptsnotice on behalf of respondent No. 3 and states that he hasno objection to the limited prayer of the petitioner fordirecting respondent No.3 to consider and decide complaintAnnexure P 8 dated 22.03.2020 in accordance with law. 6. In view of the position as noted above the petitionis disposed of by directing respondent No.3 to consider and on 31 10 CRM M No.2679206decide the complaint Annexure P 8 dated 22.03.2020 inaccordance with law by taking into account instructions Annexures P 9 and P 10 in case the same are applicable.Petition disposed of as above.”(B.S. WALIA)25.06.2020 JUDGE”[8].The present petition has been filed for registration ofcriminal case against the private respondents in consonancewith the guidelines issued in compliance of Lalita Kumari vs.Govt. of U.P. and others 2013(4) R.C.R.979. Videorder dated 10.09.2020 learned State counsel was directed toplace on record copy of speaking order passed by respondentNo.3 in pursuance of order dated 25.06.2020 passed in CRM MNo.163820.[9].In compliance of the aforesaid order learned counselfor both the parties have placed on record the relevantdocuments. While disposing of earlier petition i.e. CRM MNo.163820 respondent No.3 was directed to considerand decide the complaint dated 22.03.2020 in accordance withlaw. Now this Court is obliged to see whether the order dated30.07.2020 passed by respondent No.3 is in accordance withlaw and satisfies the instructions guidelines on the subject.7petitioner to visit Batala. Mother of petitioner sensing callousattitude of private respondents insisted that Sandeepand one Balbir Singhshould accompany her toPunjab. Thereafter all the private respondents along withSandeep and Balbit Singhwent to Batala. Balbir Singh(Balli) ultimately found the death of mother of petitioner in themanner as disclosed in the preceding paragraph. Postmortem ofmother of the petitioner was conducted on 08.03.2020 itself atBatala. Petitioner made a complaint to respondent No.3 on22.03.2020 in relation to commission of offence of criminalconspiracy and murder of his mother. Petitioner raised varioussuspicious circumstances before respondent No.3. Notice underSection 160 Cr.P.C. was issued to the petitioner to attend theoffice of DSP City Batala on 15 16 18 19.05.2020 at any time inthe morning in connection with inquiry of complaint filed by him.Petitioner was required to accompany his wife Samita NareshKumar Balbir Singh Bali Sandeep Singh Kunwar Pramod Vineet and Mahesh. During the inquiry statements of thepetitioner and others were recorded on 20.05.2020. Statementsof Balbir Singhand Sandeep were also recorded.he along withothers proceeded to Batala in two vehicles. They reached atBatala at about 1.30 A.M. in the in laws house of respondent on 31 10 CRM M No.2679208No.4. They had milk in the night and at about 2.00 A.M. theywent to sleep. Balbir Singhand Sandeep were sent inroom built behind the house. In the morning at about 6.00 6.30A.M. both woke up and maid servant gave them tea. Whenswitch of the geyser in the bathroom was not found then BalbirSinghwent to the house and asked mother in law ofrespondent No.4 about the same. Balbir Singhdid notfind any sign in the house that any big incident had taken placein the morning at about 6.00 A.M. At about 9.00 A.M. respondent No.4 came to the house and disclosed to BalbirSinghthat his mother had heart attack in the morning andshe died. Balbir Singhstarted crying and askedrespondent No.4 to take him to the mother. At about 9.30 A.M. Balbir Singhand respondent No.4 went to the Hospitaland on the way he informed the petitioner about death of hismother. At about 10.00 A.M. they reached Akal Hospital andfound that dead body of mother of the petitioner was lying on abed. Balbir Singhinsisted to take the dead body to Delhiin an ambulance. Respondent No.4 stated that prior to leavingfor Delhi they have to get the body packed and till such timethey should go to fetch goods and Sandeep from the house.Similar statement of Sandeep was also recorded. 9taken to Akal Hospital where the Doctor had told that she wasserious. He came back to the house to pick Balbir Singhnamely Naresh Anil cousin(s) namely Ramesh Kishan petitioner and including himself discussed the familybusiness. Petitioner insisted not to use the Will as they willpartition the family business between them.atabout 6.00 A.M. in the morning Mata Ramesh Kumari Bhardwajwoke up and was walking outside the house. Respondent No.8went to do her prayers in the lobby. Ramesh Kumari Bhardwajfell down and on hearing the sound respondent No.8 went toher and then she informed respondents No.4 and 5.Respondent No.7 also woke up. Ramesh Kumari Bhardwaj had 1 on 31 10 CRM M No.26792010a heart attack and they took her to Dr. Gosain Hospital in thecar. The Doctor checked her and gave her first aid and toldthem that condition of the patient was critical. They should takeher to some other Hospital. They took her to Akal Hospital where the Doctor checked her and admitted her. Aftersometime the Doctor informed that she had died due to theheart attack. They took her dead body to Civil Hospital wherepostmortem was done. On the statement of respondent No.6 proceedings under Section 174 Cr.P.C. were conducted byPolice Station Civil Lines Batala. Thereafter they went to Delhialong with the dead body where the dead body was cremated.[14].As per statement of Dr. Rajbir Singh Bajwa he isrunning Akal Hospital Gurdaspur road in Batala. On08.03.2020 at about 6.00 A.M. Pritpal Singh owner of theHospital was telephonically informed by respondent No.7 thathis relatives have come from Delhi. Out of them an old womanwas not well. They wanted to get her checked up. About 15mins. thereafter they brought the old woman in a car to theHospital. Hospital staff checked the woman in the Car itself andinformed Dr. Rajbir Singh Bajwa telephonically that pulse of thepatient could not be found and the body was also cold. TheDoctor directed the staff to refer the patient to Civil Hospital Batala. The patient was neither given treatment in Akal Hospital 1 on 31 10 CRM M No.26792011nor any medicine was administered to her.[15].Statement of one Gurbag Singh was also recorded tothe effect that he is a Pharmacist in Akal Hospital. On08.03.2020 2 3 persons brought an old lady in a vehicle. Hechecked the patient in the vehicle itself whose pulse was notfound and the body was cold. He informed Dr. Rajbir SinghBajwa about the patient who in turn asked him that the patientbe referred to Civil Hospital Batala because Akal Hospital isonly a surgical centre. Thereafter the patient was taken to CivilHospital Batala by her family members. Patient was not treatedin Akal Hospital nor any medicine was administered to her.Statement of Pritpal Singh was also recorded to the same effectthat the patient was neither given any treatment and medicine inAkal Hospital and she was checked up in the vehicle only.[16].In the inquest proceedings statement of respondentNo.4 was recorded by the Police to the effect that they took themother to Akal Hospital where the Doctor told them that motherhad expired. His mother had died due to sudden heart attackand no one was responsible for that. Mishappening hadoccurred naturally and suddenly. Respondent No.4 did not wantto pursue any legal proceedings against anyone. As perchemical examination report no poison was detected in theexhibits. As per pathology report of the deceased her heart was 1 on 31 10 CRM M No.26792012found to be 225 gm. LV wall thickness was found to be 1.5 cm.Coronary artery showed atherosclerotic changes and Lumanpatent. Cause of death was found to be a sudden cardiac arrest.[17].An inquiry was got conducted by respondent No.3through DSP City Batala. During the inquiry it was found thatthere was a dispute regarding many documents relating to Willof deceased Ramesh Kumari Bhardwaj. A registered Will wasexecuted in the year 2010 in which deceased Ramesh KumariBhardwaj had divided her property in equal shares to the tune of50% each in the names of both the sons. Another registeredWill was executed in the year 2014 in which she had given herproperty to respondent No.4. Respondent No.4 was in Jail in theyear 2014. Thereafter unregistered Will was executed byRamesh Kumari Bhardwaj on 22.02.2020 in which she onceagain divided her property in equal shares in the names ofpetitioner and respondent No.4. Petitioner and respondent No.4came to know about the aforesaid Wills after the death ofRamesh Kumari Bhardwaj. Respondent No.4 stated before theInquiry Officer that all the rituals regarding cremation ofdeceased Ramesh Kumari Bhardwaj were done by thepetitioner. Papers of the cremation ground suggested that thepetitioner himself had written heart attack as cause of death ofhis mother. 1 on 31 10 CRM M No.26792013[18].During inquiry investigation statement of respondentNo.4 was also recorded that both the brothers hadcompromised in the presence of respectables on 09.06.2020 inrespect of division of properties. Petitioner agreed tocompromise on the ground that he will get 50% share of thewhole properties but the compromise could not be materialized.The Inquiry Officer also relied upon proceedings under Section174 Cr.P.C. as well as medical opinion to conclude that from thesecret and declared investigation till date there was noevidence of murder of mother of petitioner. The cause of deathwas sudden cardiac arrest. On the basis of aforesaid reportdated 30.07.2020 submitted by the DSP City Batala respondent No.3 also passed a speaking order on 30.07.2020itself endorsing the report of DSP City Batala.[19].Learned counsel for the petitioner by referring toAnnexures P 16 to P 24 further submitted that statement ofrespondent No.4 runs contrary to the statement of Dr. RajbirBajwa Gurbaj Singh and Pritpal Singh to the extent that motherof petitioner was checked up in the car itself and was notadmitted in the Hospital. No treatment medicine was given toher in Akal Hospital. Balbir Singhand Sandeep were keptin dark in the house itself in respect of medical status of thedeceased. The inquest report is revolving around the solitary 1 on 31 10 CRM M No.26792014statement of respondent No.4 only.Cr.P.C. stood complied with.Delegatee of Respondent No.3 by exercising the powers underSection 154(3) Cr.P.C. proceeded to record the statements ofthe parties. He was required to satisfy himself with regard tocognizable offence for registration of FIR. Cr.P.C. Any observation made in the inquestproceedings would not operate as bar to the registration of FirstInformation Report. Chapter XII of Cr.P.C. deals with reportingof information to Police in cognizable offence and its power ofinvestigation. Section 154(1) Cr.P.C. deals with registration ofFIR by the Police Incharge of Police Station on receipt ofinformation in respect of cognizable offence. The provision castsa statutory duty on the Police Office to enter the substance ofsuch information in the prescribed form i.e. FIR. The Officer has 1 on 31 10 CRM M No.26792015no choice but to enter the substance of information as laidbefore him if it relates to commission of cognizable offence.The Police Officer cannot embark upon any elaborate inquiry toascertain the genuineness or reasonableness of suchinformation. He cannot refuse registration of a case. A discreetinquiry can be held if the complaint contains uncertain andindefinite allegations raising doubts about the commission ofcognizable offence. It is not open to the Police Officer toconduct full fledged inquiry into the merits reasonableness andcorrectness of the allegations and to assume the role of a TrialCourt in the process. The correctness or reasonableness of theinformation is not a condition precedent for registration of acase as the same was ascertainable upon investigation whichwas to follow under Section 156 Cr.P.C. Learned counsel reliedupon Abhay Nath Dubey vs. State of Delhi 2002(99) DLT114.[22].Learned counsel further submitted that in Bhajan Lalvs. State of Haryana AIR 1992 SC 604 the Hon ble Apex Courthas laid that at the state of registration of a crime on the basis ofinformation disclosing a cognizable offence the concernedPolice Officer cannot embark upon an inquiry as to whetherinformation laid before him by the informant is reliable andgenuine and to refuse registration of a case on that ground. It is 1 on 31 10 CRM M No.26792016manifestly clear that if the information disclosing cognizableoffence is laid before a Police Officer Incharge of a PoliceStation satisfying the requirements of Section 154(1) Cr.P.C. then the Police Officer has no other option except to enter thesubstance thereof in the prescribed form that is to say toregister a case on the basis of such information.R.C.R.979 furthersubmitted that the guidelines framed by Ministry of Home Affairson the basis of aforesaid case have been overlooked byrespondent No.3 in not ordering registration of FIR. The orderdated 25.06.2020 passed by this Court in CRM M No.16384 of2020 was in the context of issuing directions to respondent No.3 1 on 31 10 CRM M No.26792017to consider and decide the complaint dated 22.03.2020 inaccordance with law.the reliability genuineness and credibility of the information arenot conditions precedent for registration of case. The intentionof the Legislature is to ensure prompt investigation of acognizable offence in accordance with law. There is nodiscretion left with the Police Officer to register or not to registeran FIR once information of a cognizable offence has beenplaced before him. Non registration of criminal case leads todilution of rules of law and lead to definite lawlessness which isdetrimental to the society as a whole. Even the action againsterring police officer is warranted in such circumstances in whichFIR is not registered in respect of cognizable offence. TheHon ble Apex Court has provided some exceptions to themandatory registration of FIR. If the information does notdisclose commission of cognizable offence but indicates thenecessity for an inquiry preliminary inquiry may be conductedonly to ascertain whether cognizable offence is made out or not.If the inquiry discloses cognizable offence the FIR be registered.In case preliminary inquiry ends in closing the complaint the 1 on 31 10 CRM M No.26792018information is required to be supplied to the complainant withinone week after disclosing the reasons in brief for closing thecomplaint and not proceeding further. The preliminary inquirycan be made in matrimonial disputes family disputes criminaloffences medical negligence cases corruption cases and caseswhere there is an abnormal delay in initiating criminalprosecution for more than three months in reporting the matterwithout satisfactory explanation for the delay. The preliminaryinquiry has to be completed within seven days and the delay ifany should be reflected in the general daily diary of the PoliceStation.[27].If a person has a grievance that the Police is notregistering the First Information Report under Section 154Cr.P.C then he can approach the Sr. Superintendent of Policeunder Section 154(3) Cr.P.C. by way of filing a representation inwriting. If such representation does not yield any satisfactoryresult and the FIR is not registered then it would be open to theaggrieved person to file an application under Section 156(3)Cr.P.C. before the Magistrate concerned. On receipt of suchapplication under Section 156(3) Cr.P.C. the Magistrate candirect for registration of FIR. The Magistrate can also monitorthe investigation to ensure an appropriate investigation. TheHon ble Apex Court has explained the position of law in Madhu 1 on 31 10 CRM M No.26792019Bala vs. Suresh Kumar 1997(3) R.C.R.679.Cr.P.C. would further makeit abundantly clear that no information of commission ofcognizable offence can be ignored. The aforesaid provision wasadded by way of amendment revealing the intention of theLegislature to ensure to take action as the inaction would resultin unjustified protection of the offender. The expression esunius est exclusion alterious is fully applicable to the 2 on 31 10 CRM M No.26792020interpretation attached with Section 154 Cr.P.C. which meansthat expression of one thing is the exclusion of another. Themandate of recording the information in writing excludes thepossibility of not recording the information of commission of acognizable offence in the special register. Therefore conductingthe investigation into an offence after registration of FIR underSection 154 Cr.P.C. is the procedure established by law and thesame is in conformity with Article 21 of the Constitution of India.Right of the accused for speedy trial would come into being onlyafter registration of FIR and after conducting the investigation inaccordance with law. Preliminary inquiry is different than theinvestigation. Inquiry is other than a trial which is relatable to ajudicial act and not to the steps take by the Police towardsinvestigation after registration of FIR under Section 154 Cr.P.C.Concept of preliminary inquiry may be a special procedureprescribed under CBI Manual to be read with Section 154Cr.P.C. Preliminary inquiry is contained in Chapter IX of theCrime Manual of CBI but the same is not a statute. It has notbeen enacted by the Legislature rather the same is anadministrative order for internal guidance of the CBI officers.The aforesaid administrative order cannot supersede the Codeof Criminal Procedure and the said analogy of conductingpreliminary inquiry as recorded in CBM Crime Manual cannot berelied to import such a concept in the scheme of Code of 2 on 31 10 CRM M No.26792021Criminal Procedure. The Central Bureau of Investigation is thecreation of Special Act i.e. The Delhi Special PoliceEstablishment Act 1946 and it derives its power to investigatethe offence from the said Act only. Scheme of Code of CriminalProcedure is different. Though the provisions in terms of Section(2) andof Code of Criminal Procedure permit specialprocedure to be followed for Special Acts.Cr.P.C. Thus thecommission of a cognizable offence is not only required to bebrought to the notice of the Investigating Agency but it has tobe brought to the notice of the Magistrate as well. There are twotypes of FIRs i.e. the FIR which is duly signed by thecomplainant under Section 154(1) Cr.P.C and the second typeof FIR could be the FIR which is registered by the Police itselfon any information received or other than by way of aninformant and even this information has to be duly recorded andthe copy thereof should be sent to the Magistrate forthwithunder Section 157(1) Cr.P.C. In view of aforesaid it would beobligatory on the part of Police to register FIR either on the 2 on 31 10 CRM M No.26792022basis of information submitted by the informant under Section151(1) Cr.P.C. or otherwise under Section 157(1) Cr.P.C.[31].Registration of FIR under Section 154 Cr.P.C. andarrest of the accused are entirely different things. The arrest ofthe accused is not automatic on registration of an FIR. Thearrest cannot be made in a routine manner on a mere allegationof commission of an offence. It would be prudent for a PoliceOfficer not to arrest a person without a reasonable satisfactionafter some investigation as to the genuineness and bona fide ofa complaint and reasonable belief in the context of complicity ofthe accused. The arrest of person and registration of FIR arenot directly linked as both have two concepts operating underdifferent parameters. Misuse of aforesaid concept would resultin action against the Police Officer under Section 166 IPC.[32].Registration of FIR is mandatory under Section 154Cr.P.C. if the information discloses commission of a cognizableoffence. No preliminary inquiry is permitted in such a situation.Preliminary inquiry can be conducted in matrimonial cases caserelating to family disputes commercial offences medicalnegligence cases corruption cases and the cases where thereis abnormal delay of more than 3 months in initiating criminalprosecution or reporting the matter to the police withoutsatisfactory explanation. The conclusions drawn in Lalita 2 on 31 10 CRM M No.26792023Kumari s caseare reproduced hereasunder: “111) In view of the aforesaid discussion we hold: i) Registration of FIR is mandatory underSection 154 of the Code if the informationdiscloses commission of a cognizable offence andno preliminary inquiry is permissible in such asituation. ii)If the information received does notdisclose a cognizable offence but indicates thenecessity for an inquiry a preliminary inquiry maybe conducted only to ascertain whethercognizable offence is disclosed or not. iii)If the inquiry discloses the commission ofa cognizable offence the FIR must be registered.In cases where preliminary inquiry ends in closingthe complaint a copy of the entry of such closuremust be supplied to the first informant forthwithand not later than one week. It must disclosereasons in brief for closing the complaint and notproceeding further.iv)The police officer cannot avoid his dutyof registering offence if cognizable offence isdisclosed. Action must be taken against erringofficers who do not register the FIR if informationreceived by him discloses a cognizable offence. v)The scope of preliminary inquiry is not toverify the veracity or otherwise of the informationreceived but only to ascertain whether theinformation reveals any cognizable offence. vi)As to what type and in which casespreliminary inquiry is to be conducted will depend 2 on 31 10 CRM M No.26792024on the facts and circumstances of each case. Thecategory of cases in which preliminary inquiry maybe made are as under: a) Matrimonial disputes family disputes b) Commercial offences c) Medical negligence cases d) Corruption cases e) Cases where there is abnormaldelay laches in initiating criminal prosecution forexample over 3 months delay in reporting thematter without satisfactorily explaining the reasonsfor delay. The aforesaid are only illustrations andnot exhaustive of all conditions which may warrantpreliminary inquiry. vii)While ensuring and protecting the rightsof the accused and the complainant a preliminaryinquiry should be made time bound and in anycase it should not exceed 7 days. The fact of suchdelay and the causes of it must be reflected in theGeneral Diary entry. viii)Since the General Diary StationDiary Daily Diary is the record of all informationreceived in a police station we direct that allinformation relating to cognizable offences whether resulting in registration of FIR or leadingto an inquiry must be mandatorily andmeticulously reflected in the said Diary and thedecision to conduct a preliminary inquiry must alsobe reflected as mentioned above.”25filed by the petitioner the Deputy Superintendent of Police i.e.Delegatee of respondent No.3 issued notices to complainantparty and recorded statements of various persons. The PoliceOfficer cannot embark upon any elaborate inquiry to ascertaingenuineness or reasonableness of the information and cannotrefuse registration of criminal case. It does not lie under thedomain of Police Officer to substitute preliminary detailed inquirywith the investigation of the case as the investigation can onlybe done after registration of an FIR.[34].In view of aforesaid legal position refusal to register anFIR is not in accordance with law. It would be prerogative of thePolice to file cancellation of the FIR after investigation inaccordance with law. In such eventuality the complainant wouldbe having a right to file protest petition on receipt of notice fromthe Court. Thereafter the Court may accept the cancellationreport or proceed with the case as a criminal case on receipt ofpreliminary evidence or may pass any other order in accordancewith law including further investigation. 26law. Registration of FIR in itself would not be construed tomean any final opinion about the case. Police would investigatethe offence in a lawful manner and thereafter would act inaccordance with the Code. (RAJ MOHAN SINGH)October 27 2020 JUDGEAtikWhether speaking reasonedYes NoWhether reportableYes No

Before coming to a conclusion and holding that the appellants have vicarious liability, the court must satisfy itself whom to make liable: Orissa High Court

Before concluding that the appellants have vicarious culpability, the court shall be satisfied that the main perpetrator and his associates are constructively responsible for any act done by the latter previous to their meeting. The court shall be satisfied with the preceding hearing. The judgment was passed by The High Court of Orissa in the case of Kaleswar Majhi and Others Vs the State of Odisha [CRA No.96 of 2002] by Division Bench consisting of Hon’ble Shri Justice. S.K. Panigrahi. The appellants assail their conviction under Section 302, 449 and 342 read with Section 34 of the Indian Penal Code, by the learned Sessions Judge, wherein they have been sentenced to undergo imprisonment for life under Section 302/34 of the Penal Code and also to undergo imprisonment for life under Section 449/34 of the Penal Code. But, no separate sentence was passed for their conviction under Section 342/34 of the Penal Code. It was further directed vide the aforesaid impugned judgment that the above said two sentences were to run concurrently. Learned and Sessions Judge, concluded that the prosecution has proved its case beyond all reasonable doubt against the present appellants and, therefore, proceeded to convict them under the Penal Code. Learned Counsel for the appellants does not dispute the homicidal nature of the death of the deceased. He also does not dispute the guilt of accused Munu Majhi who murdered the deceased. However, counsel for the appellants very emphatically submits that the conviction of the appellants under Section 302/34 of the Penal Code is not sustainable in this case. Learned Counsel for the respondent, on the other hand, submits that conviction of the appellants under Section 302/ 34 of the Penal Code is proper and requires no interference. While clearing the contention to punishment the court observed that “the offence under Section 449 of the Penal Code is not made out, as the prosecution has failed to prove that the appellants have committed house-trespass to commit any offence punishable with death. Since the appellants are acquitted of the charge under Section 302/34 of the Penal Code, the offence under Section 449/34 of the Penal Code is not made out. Rather, the offence under Section 448/34 of the Penal Code is made out against the appellant. Therefore, the offence under Section 449/34 is converted to an offence under Section 448/34 of the Penal Code as the appellants found guilty of committing house-trespass.”

HIGH COURT OF ORISSA: CUTTACK. CRA No.902 From the judgment of conviction and order of sentence dated 05.04.2002 passed by Sri G.R. Dubey learned Adhoc Additional District and Sessions Judge Sundargarh in Sessions Trial No.55 100. Kaleswar Majhi and Others State of Orissa Versus For Appellants Mr. S.K. Mund For Respondent Sk. Zafrulla Additional Standing Counsel. P R E S E N T : SHRI JUSTICE S. K. MISHRA MISS JUSTICE SAVITRI RATHO S. K. MISHRA J. The appellants assail their conviction under Section 302 449 and 342 read with Section 34 of the Indian Penal Code 1860 recorded by the learned Adhoc Additional District and Sessions Judge Sundargarh in Sessions Trial No.55 15 of 2000 wherein they have been sentenced to undergo imprisonment for life under Section 302 34 of the Penal Code and also to undergo imprisonment for life under Section 449 34 of the Penal Code. But no separate sentence was passed for their conviction under Section 342 34 of the Penal Code. It was further directed vide the aforesaid impugned judgment that the above said two sentences were to run concurrently. The case of the prosecution in short is that on 17.03.1999 at about 8.00 A.M. at village Thutipipal while informant Rahasbihari Naik and his son deceased Bholeswar Naik were in their house five accused persons namely Khaleswar Majhi Paleswar Majhi Kailash Majhi Sachindra Majhi and Munu Majhi barged into it and forcibly dragged Bhuleswar out of the house. They took him to a place in front of the house of the accused Dasarath Majhi tied his hands and feet with ropes and then fastened him to a Bakamba tree. In spite of the protest of Rahasbihari the above said five accused persons started assaulting Bhuleswar with bamboo lathies. On getting information about the assault the brother mother and uncle of Bhuleswar who were then working in their field nearby came to the spot and witnessed the occurrence. Accused Munu Majhi went to his house which is very close to the spot brought out a budia and with it assaulted Bhuleswar on his head. As a result of the assault Bhuleswar died at the spot. The informant Rahasbihari Naik went to Police Station Kinjirkela and submitted a written report on 18.03.1999 at about 12.30 P.M. It was treated as F.I.R. and a case under Section 302 34 of the Penal Code was registered against the above said five accused persons. The Investigation Officer took necessary steps and upon completion of investigation submitted charge sheet against the appellants and other three accused persons namely Munu Majhi Dasarath Majhi and Sankar Majhi under Sections 450 341 302 read with Section 34 of the Penal Code. The learned Adhoc Additional District and Sessions Judge Sundargarh on 04.06.2001 framed charges under Section 449 342 302 34 of the Penal Code against the appellants and other above named accused persons. During the course of trial the accused Munu Majhi died and the case abated against him. The defence took the plea of complete denial. In order to prove its case the prosecution examined 16 witnesses and the defence examined nine defence witnesses. Informant Rahasbihari Naik is P.W.1 P.W.2 is Rajendra Naik Ajit Kumar Naik P.W.3 Siso Badaik P.W.4 Nilamani Badaik P.W.5 Udayanath Bhitria P.W.8 and Sushila Naik P.W.15 are eye witnesses to the occurrence. Udhab Bhitria P.W.6 Jaitram Naik P.W.7 Muralidhar Naik P.W.9 Constable Jatra Charan Patra P.W.10 Constable Julen Kiro P.W.11 and Constable Balunkeswar Suri P.W.14 are the witnesses to different seizures. Dr. Sushila Rita Prava Kujur P.W.12 conducted post mortem examination over the dead body of the deceased Bhuleswar Naik. Dr. Pradeep Kumar Prasad P.W.13 did the blood grouping of the accused persons. Lokanath Gidhi the Investigating Officer is P.W.16. into consideration the evidence tendered by prosecution and the materials available on record the learned Adhoc Additional District and Sessions Judge Sundargarh came to the conclusion that the prosecution has proved its case beyond all reasonable doubt against the present appellants and therefore proceeded to convict them under the Penal Code as stated above. Mr. S.K. Mund learned counsel for the appellants does not dispute the homicidal nature of death of the deceased. He also does not dispute the guilt of accused Munu Majhi who committed murder of the deceased. However Mr. Mund learned counsel for the appellants very emphatically submits that the conviction of the appellants under Section 302 34 of the Penal Code is not sustainable in this case. Sk. Zafrulla learned Additional Standing Counsel for the State on the other hand submits that conviction of the appellants under Section 302 34 of the Penal Code is proper and requires no interference. It may be stated here that Mr. S.K. Mund learned counsel for the appellants has not assailed the conviction of the appellants under Sections 342 449 34 of the Penal Code. Having heard the learned counsel for the parties and on examination of the evidence on record it is seen that the informant P.W.1 has stated that on the date of occurrence at about 8.00 A.M he and his son deceased Bhuleswar) were sitting in their house. At that time the appellants along with late Munu Majhientered inside their house all of a sudden and dragged his son Bhuleswar to outside. The deceased was tied with a Bakamba tree and was assaulted by means of lathies by all the appellants as well as the late accused Munu Majhi. It is further alleged that each of them was holding a bamboo thenga. On seeing this P.W.1 raised hullah and P.W.4 Siso Badaik and P.W.8 Udayanath Bhitria came to the spot. The evidence on record further discloses that P.W.5 Nilamani Badaik @ Ainthu Badaik went to inform about the assault to the elder brother of the deceased i.e. P.W.3 Ajit Kumar Naik who was at that time present in his farm at a distance of about half kilometer from the village and as per the evidence of P.W.5 at a distance of about one kilometer from the spot. There he informed P.Ws.2 5 and 15. All of them came to the spot. After P.W.2 reached the spot he found the deceased standing being tied with a Bakamba tree. He found the appellant Kaleswar Majhi standing near the deceased holding a thenga. The other appellants were present at a distance of about 5 to 10 cubits away from the spot. The deceased asked for water. P.W.2 who is the paternal uncle of the deceased told his daughter to bring some water. While he was administering water to the deceased the late co accused Munu Majhi went to his house brought a budia and dealt five strokes by that budia on the head of the deceased as a result of which the deceased died at the spot. Upon hearing the learned counsel for the appellants as well as the learned Additional Standing Counsel for the State and after screening the evidence available on record it is apparent that there are two distinct occurrences. The first part of the occurrence is when the appellants as well as late accused Munu Majhi and two others went to the house of the deceased dragged him outside his house and tied him to the Bakamba tree. Then they assaulted the deceased by means of lathis. Then there was a time gap. At that time the relations of the deceased arrived. When they were tendering water to the deceased accused Munu Majhi went to his house and brought a budia and assaulted the deceased mercilessly on his head which caused his death. On this score learned counsel for the appellants submits that for the second assault by the late accused Munu Majhi the appellants cannot be made vicariously liable under Section 34 of the Penal Code. We are of the view that it is not the case of the prosecution that when the occurrence started i.e. trespassing to the house of the deceased and forcibly dragging him out from his house the late accused Munu Majhi and the present appellants had the common intention of committing murder or that Munu Majhi was armed with the budia. It is borne out from the record that there was some dispute between late accused Munu Majhi and the deceased because of an allegation that the deceased had kidnapped the daughter of late accused Munu Majhi. To settle the dispute they had brought out the deceased from his house. There is no material on record to show that the accused persons had the common intention of committing murder of the the village road. Learned Additional Standing Counsel for the State however submits that the intention can arise at the spot after bringing the deceased to In our considered opinion the conduct or other evidence available on this score must be such so as not to leave any room for doubt regarding the developed common intention. Before coming to a conclusion and holding that the appellants have vicarious liability the court must satisfy itself as to the prior meeting of minds of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former. Whether there was common intention or not depends upon fact and circumstances of each case. The intention of the principal offender and his companions to deal with any person must be apparent from the conduct of the person accompanying the principal culprit. There must be some other clear and cogent incriminating piece of evidence. When such materials are absent the companions cannot be justifiably held guilty of every offence committed by the principal offender. The evidence regarding development of common intention to commit an offence graver than the one originally designed during execution of the original plan should be clear and cogent. In this case we have seen that there is no clear and cogent material on record to show that the appellants who brought the deceased from his house and tied him to a tree and then assaulted him by means of lathis did not have any intention of committing his murder. It is the very case of the prosecution that when the deceased was tied to the tree and was being tendered water by one of his relations the late accused Munu Majhi assaulted on the head of the deceased by means of an axe which he brought from his house situated nearby. He was not carrying the axewhen he along with the appellants had trespassed into the house of the deceased. Moreover P.W.12 the doctor who conducted post mortem examination has stated that the deceased has sustained injuries. Injury nos.(ii)(a) toare incised wounds while injury nos.(ii)(h) toare abrasions and injury no.(ii)(n) is a ligature mark. P.W.12 the doctor further stated that injury nos.8 to 13 could have been caused by lathis which had been sent to him. Therefore an offence under Section 323 34 of the Penal Code is made out against the appellants. So having considered the materials available on record and the submissions made by the learned counsel for the parties we are of the opinion that the conviction of the appellants under Section 302 34 of the Penal Code recorded by the learned Adhoc Additional District and Sessions Judge Sundargarh is erroneous and is liable to be set aside. We are of the view that the offence under Section 302 34 of the Penal Code is not made out in this case. However the conviction under Section 342 34 of the Penal Code is proper and requires no interference. The conviction under Section 449 34 of the Penal Code is also not proper as the appellants have not trespassed into the house to commit the murder of the deceased. Hence their conviction under Sections 302 449 34 of the Penal Code is erroneous. However they are guilty of the offence of 323 342 448 34 of the Penal In the result the appeal is allowed in part. The conviction of the appellants under Section 302 449 34 of the Penal Code recorded by the learned Adhoc Additional District and Sessions Judge Sundargarh in the aforesaid case is set aside and the appellants are acquitted of the said The offence under Section 449 of the Penal Code is not made out as the prosecution has failed to prove that the appellants have committed house trespass in order to commit any offence punishable with death. Since the appellants are acquitted of the charge under Section 302 34 of the Penal Code the offence under Section 449 34 of the Penal Code is not made out. Rather the offence under Section 448 34 of the Penal Code is made out against the appellant. Therefore the offence under Section 449 34 is converted to an offence under Section 448 34 of the Penal Code as the appellants found guilty of committing house trespass. Section 448 of the Penal Code prescribes punishment of one year imprisonment or with fine. In this case since the occurrence took place in March 1999 and in the meantime 21 years have already been elapsed we are of the opinion that the period already undergone by the appellants shall sub serve the interest of justice. Accordingly the appellants are sentenced to undergo imprisonment already undergone by them for the offence under Section 323 448 34 of the I.P.C. No separate sentence has been passed under Section 342 34 of the I.P.C. It is apparent from the Record that the present appellants have been granted bail. Hence they be set at liberty forthwith by cancelling the bail bond executed by them. The T.C.R. be returned back forthwith. Urgent certified copy of this order be granted on proper S. K. Mishra) Savitri Ratho) Savitri Ratho J. I agree. Orissa High Court Cuttack Dated the 18th February 2021 B. Jhankar

It is duty of prosecution to prove case beyond all reasonable doubt in a criminal trial: High Court of Orissa

It is the legal duty of the prosecution to prove a criminal case beyond all reasonable doubt, meaning the jury must be convinced that there is no other possible explanation from the evidence presented at the trial. This was addressed in a judgement passed by a bench of Orissa High Court consisting of Justice S.K. Mishra and Justice Pramath Patnaik in the case of Ramachandra Sahu v State of Orissa [CRA No. 216 of 1998] on 11th June 2021. The prosecution alleged that the when the victim, Srimati and her sister, Hema were walking down a lane on 10th June 1997, someone  murdered Srimati by slashing her neck with a sword and Hema seeing this fainted and collapsed. The FIR recorded that their other sister, Laxmi was at a mill when she got the news of her sister’s murder from another family member.  The main suspect was the petitioner, Ramachandra Sahu who had a long dispute running with the victim’s family. A bloody sword was recovered from the petitioner although it was never mentioned if it belonged to the same blood group as the victim or even if it was the blood of a human being. The District and Sessions Judge, Berhampur convicted the petitioner for murder under Section 302 of the Indian Penal Code and sentenced him to undergo life imprisonment. The petitioner appealed against this judgement on grounds that the prosecution’s story was self-contradictory and relied heavily on circumstantial evidence. It was noted that the victim’s sister, Hema first stated that she never saw the petitioner murdering her sister as she was walking ahead and turned around to see her sister’s neck slashed and a man fleeing the scene, but after a sword was recovered from the petitioner, the sister’s statement was changed. Also the other sister Laxmi first claimed to be at a mill when she was told about her sister’s death by a relative, but later changed her statement that she was having a bath when she was alerted about the same. The court stated that the prosecution had  done a very poor job of building the case and that much of the evidence was circumstantial and witness statements contradictory. It was stated that the burden of proof is on the prosecution and in this case they have failed to do so.

HIGH COURT OF ORISSA: CUTTACK. CRA No.2198 From the judgment of conviction and order of sentence dated 18th August 1998 passed by Sri A.K. Parichha learned District and Sessions Judge Ganjam Gajapati Berhampur in S.C. No.3397. Ramachandra Sahu Appellant. Versus Respondent. State of Orissa For Appellant Mr. B.K. Ragada L.N. Patel H.K. Muduli and M Sahoo. Mr. A.K. Nanda Additional Government Advocate. For Respondent C O R A M: SHRI JUSTICE S. K. MISHRA SHRI JUSTICE PRAMATH PATNAIK Date of Hearing 09.11.2020 & 11.06.2021 and Date of Judgment 11.06.2021 S. K. MISHRA J. In this appeal the sole appellant Ramachandra Sahu assails his conviction under Section 302 of the Indian Penal Code 1860and sentence to undergo imprisonment for life recorded by the learned District and Sessions Judge Ganjam Gajapati Berhampur in S.C. No.336 of 1997 vide judgment and order dated 18th August 1998. 02. The prosecution case in short is that in the early morning on 30.06.1997 three sisters viz. Laxmi Hema and Srimati started from their house at village Dankalpadu to collect ‘Kia’ flowers. After moving together for some distance Laxmi left in one direction towards ‘Kaburigudi’ whereas Hema and Srimati went together in another direction towards ‘Jambari’. While both sisters were walking on the lane flanked on either side by ‘Kia’ bushes Hema who was walking ahead heard the cry of agony raised by Srimati. She turned around to find the accused dealing sword blows on the neck of the deceased. Seeing such brutal attack Hema fainted and collapsed. P.W.4who was passing nearby saw the dead body of Srimati lying on the lane and informed the family members of the deceased. Laxmi and Sashi the sister and sister in law of the deceased rushed to the spot and found the dead body of Srimati lying there. They also saw the accused and his companions running away through the lands. The other villagers came there and saw the dead body of the deceased. P.W.1another villager informed the police over phone and police staff arrived. On their arrival Laxmi submitted the report before the police officer orally and the police officer reduced it into writing. This report was treated as F.I.R. and investigation was taken up. investigation Investigating Officer statement of the eye witnesses and other witnesses seized the blood stained earth sample earth incriminating articles from the spot prepared spot map held inquest over the dead body took photographs of the dead body spot and place of recovery of the weapon of offence through the photographers sent the dead body for post mortem examination utilized the police dog arrested the accused and basing on the information given by the accused seized the weapon of offence from the place of concealment sent the seized articles for chemical examination got the weapon examined by the doctor and then on completion of investigation submitted charge sheet. The plea of the defence is one of complete denial and false implication. 04. The prosecution in order to prove its case examined 15 witnesses of whom P.W.8 is the informant P.W.9 is the eye witness P.W.13is the sister in law of the deceased P.Ws.4 and 5 are villagers who saw the dead body of the deceased lying at the spot P.W.1 is the villager who saw the dead body and informed the police P.Ws.2(Mangulu Raulo) and 3 are photographers who took photographs of the dead body and the surrounding and the place of concealment of the weapon on the direction of the Investigating Officer P.Ws.6 and 12 are witnesses to the recovery of the weapon P.W.7 the doctor who conducted post mortem examination over the dead body of the deceased. P.W.14 is the Blacksmith who manufactured the sword P.W.11 is the A.S.I. of Police who wrote the inquest report P.W.10 is the S.I. of Police Dog Squad who brought the police dog for detection of the culprit and P.W.15 is the Inspector of Police who investigated the case and submitted charge sheet. Apart from oral evidence the prosecution also relied upon the documents marked as Exts.1 to 14 as well as the material objects marked as M.Os.I to VI. document. The defence neither examined any witness nor produced any 05. On an appraisal of evidence on record the trial court held the evidence of P.Ws.8 9 and 13 is acceptable and also found the evidence of P.W.9 corroborated by the testimony of the official witness P.W.10 medical evidence of P.W.7 and the discovery of weapon of offencebasing upon the information given by the appellant from the spot. Accordingly prosecution was held to have established the charge against the appellant and the impugned judgment of conviction was passed. 06. Learned counsel for the Appellants contended that the learned trial court without considering the evidence of the sole eye witnesses P.W.9 with regard to her presence at the spot of occurrence credibility of her evidence and by overlooking material evidence mechanically passed the impugned judgment of conviction and order of sentence. It was further contended that leading to discovery under Section 27 of the Indian Evidence Act 1872 is wholly misconceived as the witnesses to the same P.Ws.6 12 and 14 have turned hostile to the prosecution. Therefore the learned counsel for the Appellant submitted that the impugned judgment may be set aside and the Appellant may be acquitted of the charge in which he has been convicted. Learned counsel for the State supported and defended the impugned judgment. It was strenuously argued that evidence of P.W.9 is free from any inconsistency and infirmity. There being adequate corroboration to the evidence of P.W.9 there is no scope to interfere with the impugned judgment of conviction. Learned counsel for the Appellant submitted that the appellant does not dispute the homicidal nature of death of the deceased. However it is apposite to look into the evidence of the doctor P.W.7 who has stated that he conducted post mortem examination on the dead body of the deceased and found the following injuries: “External injuries: Incised wound present horizontally above the Thyroid cartilage and the head was almost remotely attached to the trunk by means of tag of skin of length 9 cm. in left side of the neck. The soft tissue muscles vessels larynx pharynx have been cut with regular margin. The head had been separated at the level of 4 cervical The inter vertebral disc had been cut thoroughly and the spinal card had been severed completely. Three notches were present insimitcal matter indicating three notches had inflicted to produce Incised wound of size 7 cm. x 5 cm. x bone deep present in slight oblique manner in outer aspect of right elbow iii) Obliquely placed incised wound 10 cm. x 4 cm. x bone deep with beveled margine directed above downwards present in back aspect of right forearm 4 cm. below the said injury. joint. injury no.3. Incised wound 3 cm. x 1 cm. x bone deep present in outer aspect of right forearm 4 cm. above right wrist joint. Incised wound 3 cm. x 1 cm. x muscle deep present slight obliquely in front aspect of left shoulder 9 cm. below the tip of shoulder joint. Internal Injuries. The muscles vessels soft tissues skin including spinal cord had been cut thoroughly under external injury no.1 and he inter vertebral disc between 4th and 5th cervical vertebra had been cut completely. ii) The lower end of left humorous had been cut partially under external injury No.2. iii) The right radis and ulna had been cut thoroughly under external injury No.3 and 4 respectively.” He opined that all the injuries were ante mortem in nature and could have been caused by sharp cutting weapon the injuries were homicidal in nature and sufficient to cause death in ordinary course of life death was due to coma as a result of the injuries mentioned above external injury nos.2 3 and 4 and corresponding internal injuries were defence injuries and the time since death was about 12 to 24 hours at the time post mortem examination. Therefore it is clear that the death of the deceased was homicidal in nature. 09. The prosecution case is based entirely on the evidence of P.Ws.8 9 and 13 who are the family members of the deceased. P.W.8 has stated that since last 10 years trouble was going on between their family and the family of the accused for the ancestral property and due to that enmity the accused and his brothers made several attempts on the life of her brother Apana Sahu but luckily he escaped. The accused and Suri Sahu also waited for them armed with sword and kati while herself and her sister Srimati were coming from their land but due to presence of people they could not do anything. Three days thereafter on early morning herself Hema and Srimati started for collecting Kia flowers. She went to Kaburi Badi Hema and Srimati went towards Jambari. She returned home at about 6 A.M. After some time when she was at the mill her niece Sukanti informed her that Srimati had been killed at Jambari lane and that her dead body was lying. She went to the spot and found the deceased Srimati lying on the lane. Her throat had been cut and there was lot of blood. She saw accused Rama Sahu Jaya Sahu and some others were running away towards their land. Villagers gathered at the spot. She narrated the incident to Krishna the Ward Member and Krushna Murty the Samiti Member. Then she went to Golanthara Police Station and narrated her report orally. It appears that there are certain contradictions in the F.I.R. version and the evidence of P.W.8 the informant. In her statement this witness stated that when she was at the mill her niece Sukanti informed her that Srimati had been killed at Jambari lane whereas in her report before the police she has stated that when she was taking bath at village her niece Sukanti Sahu informed her that Srimati had been killed by someone and that her dead body was lying. That apart from the abnormality with regard to presence of P.W.9 Hema Sahu at the spot the evidence of the said witness is full of contradictions in material particulars and not trustworthy. This witness in her cross examination stated that she did not state to Investigating Officer that she saw the accused dealing sword blows on Srimati. The Investigating Officerhas also admitted in his evidence that P.W.9 has not stated before him that she saw the sword blows on the deceased. Section 134 of the Indian Evidence Act 1872 provides that no particular number of witnesses shall in any case be required for the proof of any fact. It is well settled principle of law that evidence has to be weighed and not counted. So a solitary eye witness can be relied upon to convict a person. However such evidence of solitary eye witness should be of sterling quality so that there is doubt regarding complicity of the Appellant as stated by the witnesses in commission of the crime. In this case P.W.9 Hema Sahu the solitary eye witness cannot be accepted as a reliable witness in view of the fact that she has not stated in her statement under Section 161 of the Code recorded by the Investigating Officer that she saw the Appellant was dealing blows on the deceased Srimati by means of sword. Such contradiction appearing in her evidence with respect to her statement made under Section 161 of the Code is substantial and material contradiction making her evidence doubtful. So in that view of the matter we are of the opinion that reliance upon the evidence of P.W.9 Hema Sahu will not be proper. The prosecution also relied upon the circumstantial evidence i.e. leading to discovery of the weapon of offence under Section 27 of the Indian Evidence Act 1872. It was submitted that leading to discovery as has been relied upon by the learned Trial court is wholly misconceived and against the law. P.W.15 the Investigating Officer has stated that Accused Rama Chandra Sahu voluntarily appeared in the Police Station. He gave statement in presence of the witnesses that after committing of the offence he concealed the weapon in a secret place and voluntarily lead us to that place. P.Ws.6 12 and 14 the witnesses to the leading to discovery have turned hostile and did not support the prosecution case. Moreover though it. the weapon of offence i.e. sword recovered stained with blood no opinion was given regarding existence of human blood on it or that blood of human origin of the group belonging to the deceased was found on So from an analysis of the evidences of P.W.8 juxtaposed with the contents of the F.I.R. the evidence of P.W.9 the eye witness and the evidence of P.W.13 the post occurrence witness it is our opinion that the evidence of the informant P.W.8 has been contradicted with respect to her statement in court and in the F.I.R. and evidence of P.W.9 the eye witness has been contradicted with regard to dealing of sword blows on the deceased and such contradictions are material contradictions. So their evidences cannot be accepted to prove a case of murder of the deceased against the convict appellant. In that view of the matter we are of the opinion that the prosecution has not proved its case beyond all reasonable doubt. Hence the appeal is allowed. Accordingly the impugned judgment of conviction and order of sentence dated 18th August 1998 passed by the learned District and Sessions Judge Ganjam Gajapati Berhampur in S.C. No.3397 convicting the appellant for commission of offence under Section 302 of the I.P.C. and sentencing him to undergo charge. imprisonment for life are set aside. The appellant is acquitted of the said appellant Ramachandra Sahu is on bail. He be set at liberty forthwith by cancelling the bail bond executed by him. The T.C.R. be returned back forthwith. the restrictions due to resurgence of Covid 19 are continuing learned counsel for the parties may utilize a printout of the order available in the High Court’s website at par with certified copy subject to attestation by the concerned Advocate in the manner prescribed vide Court’s Notice No.4587 dated 25th March 2020 as modified by Court’s Notice No.4798 dated 15th April 2021. ..…. Judge ....... …. Judge Pramath Patnaik J. I agree. Orissa High Court Cuttack Dated the 11th June 2021 B. Jhankar

Investor Protection Laws are not applicable to Builder-Buyer relations

The Hon’ble High court of Orissa in Mahasweta Biswal V. State of Odisha & Anr. (BLAPL No. 893 of 2020) held that the provisions of Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011 will not apply to real estate transactions. It was observed by the court that “It is (Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011), in essence, is a social protection enactment and its application to real estate transactions, will lead to absurd and unintended consequences. It is thus concluded that it was never the intention of the legislature to apply the provisions of the Act to neat real estate transactions and the application of the Act thereto will lead to absurd situations contrary to the legislative intendment. The instant case is a classic example of a transaction gone awry which has been strenuously given the color of a criminal offence.”  

HIGH COURT OF ORISSA: CUTTACK BLAPL No. 893 OF 2020 In the matter of an application under Section 439 of the Criminal Procedure Code 1973) MAHASWETA BISWAL Petitioner STATE OF ODISHA AND ANOTHER ... ... Opp. Parties For the Petitioner: M s. D. P. Dhal Sr. Advocate & B. S. Dasparida S. K. Dash S. Mohapatra K. Mohanty and M. K. Agarwalla Advocates For the Opp. Parties: Mr. Bibekananda Bhuyan M s. S. Sastry B. N. Udgata D. R. Behera and M. R. Sahoo THE HONOURABLE SHRI JUSTICE S.K. PANIGRAHI Date of Hearing 20.08.2020 Date of judgment 25.08.2020 1. The present application is preferred under Section 439 of the Criminal Procedure Code to EOW Bhubaneswar P.S. Case No.21 of 2019 corresponding to C.T. Case No.10 of 2019 pending before the court of the learned Presiding Officer Designated Court under the O.P.I.D. Act Cuttack. 2. On the basis of the FIR lodged before the Superintendent of Police Economic Offence Wing Bhubaneswar EOW Bhubaneswar P.S. Case No.21 of 2019 was registered against the petitioner and two others for the offences punishable under Sections 406 420 120 B of the I.P.C. read with Section 6 of the Odisha Protection of Interests of DepositorsAct 2011. 3. The succinct facts of the case narrated by the informant is that he met one Biswa Bhushan Biswal around seven years back who introduced himself as a land broker being in the business of plotting land developing constructing buildings flats and apartments through his company one M s. B.N. Infra Services Pvt. Ltd. He also allegedly introduced the Petitioner herein his wife as the Managing Director and one Binapani Biswal as Director of the said company. It has been further alleged that all the affairs of the said company were being managed by said Biswa Bhushan Biswal. On being thus assured by Mr. Biswal the informant invested a sum of Rs.1 89 00 000 in the said company. The said amount were disbursed pursuant to two agreements dated 26.08.2015 and 08.11.2016. However accused did not make repayment as per their commitment. So being pressurized by the informant to return his money Shri Biswal gave an undertaking that if he failed to pay his money back by September 2016 he would register his plot situated in l.R.C. Village in the name of the informant. The informant came to know that the said plot has been sold to some other person and thus he confronted Shri Biswal. Shri Biswal agreed for amicable settlement and made another agreement on 25.01.2017 for paying back the money. As per the said agreement Shri Biswal and the petitioner herein committed to pay an amount of Rs.1 76 00 000 as full and final amount out of which they have paid Rs.1 00 000 at the time of agreement. After agreement was executed ten cheques amounting to Rs.1 50 00 000 with different dates were issued in favour of the informant. When the cheques were presented in the bank which were dishonoured with a remark of “insufficient fund”. It is further alleged that Shri Biswal had the knowledge that he had no money in his account to honour the cheque but he nonetheless issued the same with an intention to cheat. 4. On receipt of informant’s information C.T. Case No.10 of 2019 commenced before the Ld. Presiding Officer Designated Court under the O.P.I.D. Act Cuttack. After registration of the case the Investigating Officer during the course of investigation arrested Mr. Biswal and two others including the petitioner in connection with the case. on 1.12.2019. On being produced before the learned Presiding Officer Designated court under the O.P.I.D. Act Cuttack the petitioner and others filed an application for bail but the same was rejected by the Ld. Trial Court vide its order dated 9.1.2020. 5. Ld. Senior Counsel for the Petitioner Mr. D.P. Dhal submitted that the petitioner is a house wife and is the wife of the co accused Mr. Biswal. While it is true that she has been designated as Managing Director of M s. B.N. Infra Services Pvt. Ltd. but Mr. Biswal was looking after the day to day affairs of the said company. He contends that there is a suppression of the fact that agreements have been entered into between the parties which find no mention in the First Information Report. The first agreement with the informant was on 19.05.2014 with regard to purchase of property and the second agreement was made on 23.06.2016 for another property. It was further submitted that the husband of the petitioner entered into an agreement dated 26.08.2015 with the informant wherein he and the informant have agreed to invest some amount in the company and will return back the said amount after completion of two years. With an ulterior motive of wreaking vengeance the EOW Bhubaneswar despite of the fact that Section 6 of the O.P.I.D. Act is not attracted. The Ld. Counsel for the Petitioner contends that when the company deals with real estate business and as such they come within the ambit of Real Estate Regulation & Development Act 2016 and Odisha Development) Rule 2017. In the said Act Section 2 defines the word "Promoter". Section 2(z)(n) of the Act defines the Real Estate Project. Section 3(2) of the Act deals with requirement of Registration of Project. Section 79 of the Act deals with bar and jurisdiction and Section 89 of the Act provides for an overriding effect thereof in case of an inconsistency therewith contained in any other law for the time being in force. The Ld. Counsel for the petitioner has made a concession that their liability might arise under the provisions of Real Estate Regulation and Development Act 2016. He further submitted that being aggrieved the informant as a complainant filed two cases in the court of Sub Divisional Judicial Magistrate Bhubaneswar which have been registered as I.C.C. Nos.2100 of 2017 and 2101 of 2017 under the Negotiable Instruments Act. The petitioner in the said cases has appeared through her counsel and her personal appearance had been dispensed with under Section 205 of the Criminal Procedure Code 1973. Lastly he contended that the bona fide of the Petitioner herein may be considered favorably in view of the fact that the instant case is the only complaint against the petitioner as well as company in question. 6. Per Contra Ld. Counsel for the OPID Mr. Bhuyan vehemently opposed the instant application by stating that it was a case of planned cheating and fraud. He relied on the agreements to contend that the accused persons had defaulted in fulfilling their part of the promise to deliver possession of the flat in question as well as to return the amount paid to them. He also submitted that the provision of the OPID will squarely apply to the present case and that the provisions of the Real Estate Regulation and Development Act 2016 have no application whatsoever to the present case. 7. Heard Ld. Counsel for the parties. A perusal of the FIR reveals that the informant has stated that about 6 to 7 years back one Mr. Biswa Bhushan Biswal approached him and introduced himself as a land broker doing business of plotting land development construction of buildings and flats through his company M s B. N. Infra Services Pvt. Ltd. He also allegedly introduced the petitioner as the Managing Director of the company. Mr. Biswal allegedly insisted that the informant invested in the said company and assured to return the entire invested money by 27.08.2015 vide an agreement dated 19.5.2014. Pursuant to the same the informant to disburse a sum of Rs. 1 89 00 000 as investment in the business. Initially two agreements dated 26.08.2015 and 8.01.2016 were entered into between the parties. However since Mr. Biswal defaulted in making repayments on the insistence of the informant a written consent was entered into stipulating that if there was a further default in making payments by September 2016 he would get his plot being plot No. 3 441 in IRC Village Bhubaneswar registered in the name of the informant. Subsequently the informant came to know that the said land has been sold to some other person. As a settlement measure another agreement dated 25.01.2017 was entered into between the parties. In terms of the said agreement dated 25.01.2017 the said Mr. Biswal and Petitioner committed making a payment of Rs. 1 76 00 000 out of which a sum of Rs.1 Lac was paid at the time of signing of the said agreement. Thereafter Mr. Biswal and the company represented by the Petitioner had issued 10 cheques aggregating to Rs. 1 50 00 000 in favour of the informant. The said cheques however were returned back dishonored with the remark of “insufficient funds” by the bank upon presentation. Consequently the informant has lodged a complaint under Section 138 of the Negotiable Instruments Act relying on the aforesaid agreements as well as the dishonored cheques aforementioned. A cursory glance at the aforesaid agreement reveals that the nature of the agreements in question was essentially in the nature of an “agreement to sale” of a flat that was to be constructed by the company in question. The agreements in no way contemplate any deposit or investment or the like as has been alleged by the informant. It was a simple agreement to sale of the flat in question upon payment of its consideration. Thus it is a simple flat buyer agreement and it has all the characteristics thereof. The agreements also provided the modalities to be worked out by the defaulting party on the event of a default. 8. A further examination of the records petitioner s company namely M s. B.N. Infra Services Pvt. Ltd. reflect that it is a company registered under the companies Act 1956. As per the Memorandum and Articles of Association of the company the main objects of the company authorize it to carry on business as builders contractors designers architects decorators furniture consults structures finance and progressors of all type of building and structure including house flats apartments offices godowns ware houses shops factories sheds hospitals hotels holiday resorts shopping cum residential complexes and to develop erect install alter improve add establish renovate recondition protect participate enlarge repair demolish remove replace maintain managing buy sells lease let on hire commercialize turn to account fabricate handle and control all such buildings and structures and purchase sale or deal in all types of movable and immovable properties for development investment of resale and to act as buyer seller importer exporter agent distributor stockiest or otherwise to deal in all types of raw materials goods etc. On a plain reading of the objects of the memorandum it appears that the company is not coming under the definition of “Financial Establishment” nor is it carrying on business receiving “deposits” under any “scheme” or any other manner. 9. In fact the Memorandum of Association specifically indicates that operation of the company comes under the purview Real EstateAct 2(z)(K) 2(z)(n) 3(2) of the Act delineate the meaning of promoter real estate and the requirement of registration of project. Ld. Counsel for the petitioner has submitted that the petitioner s company has also applied before the Odisha Real Estate Regulatory Authority Bhubaneswar by filing a Misc. Case for registration of his project of M s. B.N. Infra Services Pvt. Ltd. residency and for the same he has paid the required fees as directed by the authority. 10. The Odisha Protection of Interests of Depositors Act 2011 envisages a situation where multitudes of small depositors are defrauded by dubious corporations by luring them with unscrupulous schemes which promised Utopian returns. The object of the Act is tailored to clear cut situations where hapless depositors are defrauded by dubious “schemes” floated by such dubious “Financial Establishments” as provided under section 2of the Act. It is imperative that the background of the Act needs to be understood before dealing with the legislation. In recent times a legion of such dubious corporations have burgeoned in different parts of the country which have been alluring naïve investors by promising them quixotic returns under the schemes floated by them. Such companies are essentially sham or paper companies with no real businesses which arduously market such devious machinations in the form of lucrative “schemes”. Gullible common folk mostly acting out of avarice to invest in such schemes which promise them the moon hoping to make quick bucks. Such schemes loosely find their origin in “collective investment schemes” which were monitored by SEBI the capital market regulator and guidelines framed by it from time to time. However over the period such Machiavellian paper companies began to erupt across the country mostly in rural and backward areas having designed the “schemes ” with a promise to the depositors with high returns and sometimes even assured some sham services to give it the color of genuine transactions. This court on numerous occasions has unfortunately come across many such cases where thousands of gullible depositors have lost their hard earned monies. Cognizant of the shamelessly rampant advertising and marketing that were being carried out by such companies the legislatures across various states of the country were compelled to bring such enactments to curb the menace that was spreading fast and deep. It is with this backdrop that the legislation in question needs to be viewed with proper perspective. Section 2of the Act provides for the definition of “Financial Establishment”. A conscientious perusal of the definitions would indicate that the legislature has intentionally kept the ambit of the definition quite wide and pervasive. The same is not hard to fathom looking at the fact that the state governments wanted to enact a law that would take within its fold the rapidly evolving scams being propagated through these sham companies or “financial Establishment” by way of such “schemes”. Section 2of the Act provides the definition of “deposit” which also has been couched in a wide language in order to take care of any emergent situations in the future. 11. Section 2 defines “Financial Establishment” as a company registered under the Companies Act carrying on the business of receiving deposits under any scheme or arrangement or in any other manner. It is thus amply clear that the provision will relate to a company whose primary business under its Memorandum or Articles of Association would be doing the business of accepting or receiving “deposits”. It also further contemplates that the said “deposits” must be made pursuant to any “scheme or arrangement or in any other manner” which by necessary implication must mean that in order to accept such deposits the company in question must float a scheme or enter into an arrangement with the depositor with the sole objective of accepting deposits. Further a bare perusal of Section 3 shows that the intendment of the legislature from the language employed therein i.e. that there must be a multiple number of “complaints” received from a number of depositors that any Financial Establishment defaults in the return of deposits. It is thus clear that the provision excogitates the trigger kicking in only when numerous or multiple reports are received from a number of depositors and that the provision is not intended to operate in isolated or lonesome cases. Section 5 of the Act provides that every Financial Establishment which carries on its business in the state shall mention the details about its authority to carry on such business. This provision envisages that financial establishments which carry on “such business” shall be mandatorily required to register under the provisions of the Act. The expression “such business” would necessarily mean by virtue of a conjoint reading of the definitions which encapsulate such companies whose the primary business is accepting or receiving “deposits”. Section 6 of the Act provides that in case where the Financial Establishment defaults in the return of deposits or fails to render service for which deposit has been made every person responsible management of the affairs of the financial Establishment shall be punished with imprisonment which may extend up to 10 years. In cases of flat purchasers the agreements usually entered into are known in common parlance as flat buyers agreement. These agreements typically provide for the consideration to be paid for the flat apartment purchased. In a sense these are sale transactions which are mandatory registerable under the relevant laws. The question of return of deposit or payment of interest on such deposits does not arise. This provision also unerringly points to the fact that real estate transactions were not intended to be covered under the provisions of this Act. Another peculiarity which is likely to hit the application of this Act to real estate transactions is on account of Section 10 of the Act. In fact Section 10 provides for attachment of the Financial Establishments in case of the deposit not being paid back or default payment. The operation of the provision also covers such situations where the Financial Establishment has transferred any of the property held by it to any other transferee. Typically in housing construction a builder constructs a multiple number of apartments if this provision were to be applied it will precipitate a situation where one buyer claiming default on his deposit with the builder can invoke the provisions of this Act and seek attachment of the assets of the financial establishments. Consequently the operation of Section 10 of the Act would result in a piquant situation where one lone buyer while claiming refund of his deposit would cause attachment of the other flats so constructed irrespective of the fact as to whether such flats have been transferred to other transferees by the builder and corresponding rights thereupon have been created or not. It is an inevitable situation which will invariably arise when the provisions of the Act are invoked in real estate transactions especially where a builder has constructed multiple flats apartments. This kind of a situation could not have been the intention of the legislature considering the practices problems and complexities involved in the real estate sector. 12. It is worthwhile to seek reference of the provisions of other similar enactments in other states to get the true complexion of the Act in question. Section 4 of the Gujarat Protection of Interest of Depositors Act 2003 is materially different as the same conceives that the provisions of the Act can be invoked on a complaint being received from a single depositor. A similar position is also found in Section 3 of the Andhra Pradesh Protection of Depositors of Financial Establishments Act 1999 which provides that the provisions of that Act can come into operation on receipt of complaint from either a single depositor or a number of depositors. However a marked contrast is observed in Section 4 of the Uttar Pradesh Protection of Interest of Depositors in Financial Establishment Act 2016 which is pari materia to Section 3 of the Odisha Act. It is to be kept in mind that the Odisha and the Uttar Pradesh Acts have been enacted at a later point of time in comparison to their other counterparts. Thus the legislatures of these states have been cognizant of the earlier enactments on the subject matter and have intentionally couched the provisions of their Acts in a manner so as to rule out any legal absurdities or unwarranted situations. It is therefore conspicuous from the language used in the provisions of the Act that the legislature intentionally intended that the same could be operational only in particular situations i.e. upon receipt of complaint from multiple depositors with respect to a Financial Establishment. 13. In the case of ViswapriyaLimited v. Government of Tamil Nadu1 the Hon’ble Madras High Court while interpreting their Act has held that the definitions in Penal Law are not intended for semantic debates by trained legal minds but it is intended for the lay and the laity to understand and act. If an ordinary person reads the definition of the word “Financial Establishment” he will have no doubt in his mind that if he carries on the business of receiving deposits and fails to repay the amount he will have to face penal consequences. In contrast a man who is not into the business of receiving deposits but into the business of ordinary manufacturing for instance this definition will not and should not instill fear for that would be deleterious and counterintuitive to the progress of the Society. It was further held that looked at from any angle an ordinary manufacturing or a trading company or a company whose business is not accepting deposits cannot be prosecuted under the TNPID Act for default in paying its depositor although their liability under the Companies Act would not stand extinguished. It 1 2015 SCC OnLine Mad 10349 could never have been the intention of the Legislature to give unbridled power to the police to destroy legitimate business in this country and reduce our countrymen to penury. 14. This Court in the case of Prasan Kumar Patra v. State of Odisha2 had the occasion to deal with some of the provisions of the Act in question. However the facts in that case were different from the present one. In fact the Company therein was one which was carrying on the business of receiving deposits under a scheme propagated by it. This Court noted that since the company was registered under the Companies Act by ROC Cuttack on 07.05.2009 and it was carrying on the business of receiving deposits from the public under Pragyan Vihar Project for allegedly providing plots to the investors and the terms and conditions of the business were indicated in the brochure issued by the company. Although the case related to a company which promised to provide plots and there can be no straight jacket formula certain factors must weigh with the court while deciding if the company in question is a “Financial Establishment” within the meaning of the Act. Such factors would be the principal nature of business of the company the objects clause in the MoA or AoA the manner of collection of monies by it whether the same would amount to “deposits” within the Act the nature of the transaction entered into by the company the nature of the “scheme” under which the deposits are accepted etc. Such factors must be considered to understand the true nature of the 2 2019 SCC OnLine Ori 93 transaction which will help the Court to ascertain as to whether the transactions are genuine business transactions or a mere con job. 15. Another aspect of the matter is the growing propensity of parties to resort to criminal proceedings in order to “settle” otherwise purely commercial disputes as has prima facie occurred in the instant case. The Hon’ble Supreme Court in the case of Indian Oil Corpn. v. NEPC India Ltd.3 has taken note of a growing tendency in business circles to convert purely civil disputes into criminal cases. The same is prevalent on account of a misplaced impression that civil law remedies are time consuming and do not adequately protect the interests of lenders creditors. Such a tendency is seen a broad spectrum of cases ranging from family disputes leading to irretrievable breakdown of marriages families to innocuous sale purchase transactions. There is also an impression that if a person could somehow be entangled in a criminal prosecution there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims which do not involve any criminal offence by applying pressure through criminal prosecution should be deprecated and discouraged. The aforesaid judgement also relied upon an earlier judgement in the case of G. Sagar Suri v. State of U.P.4 In the case of Gian Singh v. State of Punjab5 the Hon’ble Supreme Court has that criminal cases which have overwhelmingly and 36 SCC 736 42 SCC 636 : 2000 SCC513] 510 SCC 303 predominantly civil flavour stand on a different footing particularly the offences arising from commercial financial mercantile civil partnership or such like transactions where the wrong is basically private or personal in nature. In the case of Tetra Pak IndiaLtd. and Ors. v. Tristar Beverages Ltd and Anr.6 the Hon’ble Bombay High Court has taken a view that in cases where the complainant has by giving colour of criminal case to dispute which is otherwise purely civil and commercial in nature would tantamount to an abuse of the process of court whereby a settlement is hoped to be precipitated by getting process issued in the matter. 16. In Gajanan Property Dealer and Construction Pvt. Ltd. and Ors v. State of Orissa & Anr.7 which in turn relied upon earlier judgments of this Court in the cases of Thelapalli Raghavaiah v. Station House Officer8 Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre9 to hold that though a case of breach of trust may be both a civil wrong and a criminal offence but there would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. In such case the Courts should be circumspect in letting loose the wheel of criminal law into motion. A similar view echoed in the case of Suneet 6 2015 SCC OnLine Bom 4707 7 2018 SCC OnLine Ori 387 837 Orissa Criminal Reports358 91 SCC 692 Gupta v. Anil Triloknath Sharma10. In the case of Commissioner of Police and Others v. Devender Anand and Others11 the Hon’ble Supreme Court used a word of caution to state that in cases which germinate from contractual disputes the criminal proceedings initiated by a party would be nothing but an abuse of the process of law for settling a civil dispute. 17. In the present case it has been contended by the Ld. Counsel for the Petitioner that the petitioner was unaware of the transactions which took place between her husband and the informant complainant. With this backdrop it will be worthwhile to rely on the case of S. Thamayanthi v. State of Tamil Nadu12 while relying on an earlier judgement of that Court in the case of V. Subramanian v. State by Inspector of Police13 wherein it has been held that the words “responsible for the management of affairs of the Financial Establishment” could be interpreted to mean that only those persons who were responsible for collection of the deposits and failed to return the money or the interest on such deposit are criminally liable. That is why the word “responsible” is expressed and not the word “management” alone is used. It was thus held that the same would only refer to those persons who were responsible in collecting the amounts from the depositors on promise to give higher interest and failed to return the said deposit even after its 1040 Orissa Criminal Reports578 11 2019 SCC OnLine SC 996 12 2013 SCC OnLine Mad 818 13 Crl.OP. No. 25924 2006 by order dated 10.7.2009 maturity. Merely because a person holds a position in a Company and has no active control over the affairs of the Company would not automatically bring him within the dragnet of the provisions. A similar view though drawing a parallel from the concept of “vicarious liability” as found under Section 141 of the Negotiable Instrument Act 1881 has been echoed in the cases of Ramamurthy v. R.B.S. Chinnabasavaradhya14 and Monaben Ketanbha Shah v. State of Gujarat15. 18. Therefore from the aforesaid discussion it can be concluded that the object of the Act in question was never intended to apply to real estate transactions simpliciter and doing so is nothing but misplaced or misadventures experimentation with the Act. It is in essence is a social protection enactment and its application to real transactions will to absurd and unintended consequences. It is thus concluded that it was never the intention of the legislature to apply the provisions of the Act to neat real estate transactions and the application of the Act thereto will lead to absurd situations contrary to the legislative intendment. The instant case is a classic example of a transaction gone awry which has been strenuously given the color of a criminal offence. 19. The relevant law tailor made for such situations would be the Real EstateAct 2016 which categorically caters to such situations. However this Court laments to note that 1410 SCC 581 15 AIR 2004 SC 4274 the provisions of the said Act which despite being a well thought out Code by itself is not being resorted to. Instead such circuitous proceedings are being resorted which is neither to the benefit of homebuyers nor to the real estate sector at large. The provisions of the Real Estate Act 2016 in fact provide for umpteen fail safe mechanisms to prevent most of the maladies associated with such cases. It is thus suggested that the State Government will do well to give wide publicity to the provisions of the said RERA Act 2016 in order to injunct any such unnecessary litigations arising out of builder buyer relations. The State will do well to ensure that the Regulatory Authority functioning under such an Act must be aided by all means possible. The State will also give wide publicity to the provisions of the Act to enable the lay and laity to seek refuge under the appropriate law. The same will go a long way in preventing the property related disputes which are being perilously brought within the dragnet of criminal proceedings. 20. It is worthwhile to add at this juncture that the Petitioner has filed an affidavit dated 20.08.2020 pursuant to a direction passed by this Court and has admitted the amount payable by the accused persons and the company. She has also proposed to make repayment in the manner as described under paragraph 5 of the said Affidavit which is reproduced hereinbelow i) 5% after one month i.e. Rs. 9 45 000 ii) 15% after three months i.e. Rs. 28 35 000 iii) 80% within two months i.e. before completion of six months a sum of Rs. 1 51 00 000.” 21. Based on the aforesaid solemn undertaking this Court relies and places faith in the aforesaid affidavit and hopes that the petitioner will abide by time schedule provided by her as indicated hereinabove. The payments shall be made by the Petitioner company to the informant in the manner as indicated hereinabove failing which the same will amount to a breach of faith placed in the petitioner by this Court and will be viewed very seriously. 22. Considering the aforesaid discussion submissions made and taking into account a holistic view of the facts and circumstances of the case at hand this Court hereby directs that the Petitioner be released on bail in connection with EOW Bhubaneswar P.S. Case No.21 of 2019 corresponding to C.T. Case No.10 of 2019 pending before the Court of the learned Presiding Officer Designated Court O.P.I.D. Act Cuttack. Accordingly the Bail Application under Section 439 Cr.P.C. filed on behalf of the accused petitioner stands allowed. 23. It is however clarified that the above observations shall not come in the way of a fair trial before the Ld. Trial Court and it will proceed to decide the matter on its own merit as per law. Orissa High Court Cuttack The 25h day of August 2020 AKK AKP

“The respondent observed that the queries are in the nature of seeking clarification/opinion and cannot be construed as “information”…”: SEBI, Part 2.

The respondent, in response to the query numbers 1, 2, 3, 5, 6 and 7, observed that the queries are in the nature of seeking clarification/opinion and accordingly, cannot be construed as, “information”, as defined under section 2(f) of the RTI Act, 2005. In response to query number 4, the respondent informed that the appellant should refer to SCORES FAQs. The respondent also provided the web link for accessing the same. The appellant had filed an appeal on the ground that access to the requested information was refused. The appellant, in her appeal, has reiterated the queries raised in her application. Query numbers 1, 2, 3, 5, 6 and 7- On consideration, Mr Baiwar agreed with the observation of the respondent that the queries are in the nature of seeking clarification/opinion from the respondent. It is understood that the respondent is not supposed to create information; or to interpret information; or to furnish clarification to the appellant under the ambit of the RTI Act. It was found that the said queries cannot be construed as seeking ‘information’ as defined under section 2 (f) of the RTI Act. Consequently, the respondent did not have an obligation to provide such clarification under the RTI Act. For the query, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Vineet Pandey vs. CPIO, United India Insurance Company Limited (Judgment dated January 21, 2021), wherein similar observations were made by the Hon’ble CIC. Further, in the matter of Shri Shantaram Walavalkar vs. CPIO, SEBI (Decision dated January 17, 2013), it was noted that the Hon’ble CIC held: “… we would also like to observe that, under the Right to Information (RTI) Act, the citizen has the responsibility to specify the exact information he wants; he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. In view of the said observations, it was found that there was no deficiency in the response. On perusal of the query number 4 and the response provided thereto, it was found that the respondent has adequately guided the appellant for accessing the information which is available in the public domain. Appellate Authority found that the query has been adequately addressed. In view of these observations, the appellate authority found no deficiency in the response.

Appeal No. 43221 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43221 Geeta Khattar CPIO SEBI Mumbai The appellant had filed an application dated May 15 2021under the Right to Information Act 2005 of the RTI Act 2005. In response to query number 4 the respondent informed that the appellant should refer to SCORES FAQs. The respondent also provided the weblink for accessing the same. 4. Ground of appeal The appellant has filed an appeal on the ground that access to the requested information was refused. The appellant in her appeal has reiterated the queries raised in her application. 5. Query numbers 1 2 3 5 6 and 7 On consideration I agree with the observation of the respondent that the queries are in the nature of seeking clarification opinion from the respondent. It is understood that the respondent is not supposed to create information or to interpret information or to furnish clarification to the appellant under the ambit of the RTI Act. I find that the said queries cannot be construed as seeking ‘information’ as defined under section 2 of the RTI Act. Consequently the respondent did not have an obligation to provide such clarification under the RTI Act. In this context reference is made to the mater of Vineet Pandey vs. CPIO United India Insurance Company Limitedwherein similar observations were made by the Hon’ble CIC. Further in the matter of Shri Shantaram Walavalkar vs. CPIO SEBII note that the Hon’ble CIC held: “... we would also like to observe that under the Right to InformationAct the citizen has the responsibility to specify the exact information he wants he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO...”. In view of the said observations I do not find any deficiency in the 6. Query number 4 On perusal of the query and the response provided thereto I find that the respondent has adequately guided the appellant for accessing the information which is available in the public domain. I find that the query has been adequately addressed. Accordingly I do not find any deficiency in the response. 7. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Appeal No. 43221 Place: Mumbai Date: July 14 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Everyone human being has the right to education. Education must be free, at least in the primary and fundamental stages: High Court of Allahabad

The Right to education act is an act of parliament proposed on 4 august 2009 which shows and highlights the model of the importance of free and compulsory education to children age group 6-14 in India. The case held by the High court of Allahabad through the learned bench by division bench: In the Hon’ble Surya Prakash Kesarwani, J. Hon’ble Jayant Banerji, J. on the matter of Krishna Mohan Tiwari Versus District Inspector Of Schools Allahabad And Another [SPECIAL APPEAL DEFECTIVE No. – 20 of 2022 ] dealt with an issue mentioned above. Undisputed facts of the present case are that one Jai Narain Vishwakarma was Lecturer in Civics who was superannuated on 30.06.1998. Thus, a substantive vacancy occurred on the retirement of the aforesaid Jai Narain Vishwakarma but no requisition was made by the Committee of Management to fill up the post of Lecturer in Civics. The procedure prescribed under the provisions of the U.P. Secondary Education Services and Selection Board Act, 1982 was not followed at all by the Committee of Management and instead the Committee of Management itself advertised the post on 11.04.1998/16.04.1998 and appointed the petitioner on the post of Lecturer, who allegedly joined on 31.08.1998 Learned counsel for the petitioner-appellant has relied upon a Full Bench judgment of this Court in the case of Santosh Kumar Singh vs. State of U.P. & Ors. reported in 2015 (5) AWC 4719 and submits that in view of the provisions of Section 16-E of the Intermediate Education Act, 1921, the Committee of Management has the power to make ad-hoc appointments. He also relied upon the Single Bench judgment of this Court in the case of Sushil Kumar Yadav vs. State of U.P. & Ors. reported in 2018 (1) AWC 462. The court perused the facts and arguments presented in the case, the Full Bench in the case of Santosh Kumar Singh (supra) has dealt with the situation where the ad-hoc appointment was to be made against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in case of death, termination or otherwise, of an incumbent occurring during an educational session. The facts of the present case are that a substantive vacancy was occurred on the retirement of one Jai Narain Vishwakarma on 30.06.1998 and the Committee of Management, without following the statutory provisions of the Act of 1982, made an advertisement on 11.04.1998/16.04.1998 and selected and appointed the petitioner who allegedly joined on 31.08.1998. Thus, the judgment of the Full Bench has no application on the facts of the present case.

Court No. 3 Case : SPECIAL APPEAL DEFECTIVE No. 222 Appellant : Krishna Mohan Tiwari Respondent : District Inspector Of Schools Allahabad And Counsel for Appellant : Siddharth Khare Sr. Advocate Counsel for Respondent : C.S.C Hon ble Surya Prakash Kesarwani J Hon ble Jayant Banerji J 1. Heard Shri Ashok Khare learned Senior Advocate assisted by Shri Siddharth Khare learned counsel for the appellant and the learned Standing Counsel appearing for the State 2. This special appeal has been filed praying to set aside the order dated 06.10.2021 passed by a learned Single Judge in Writ A No.13736 of 2001 whereby the writ petition filed by the appellant was dismissed 3. Undisputed facts of the present case are that one Jai Narain Vishwakarma was Lecturer in Civics who was superannuated on 30.06.1998. Thus a substantive vacancy occurred on retirement of the aforesaid Jai Narain Vishwakarma but no requisition was made by the Committee of Management to fill up the post of Lecturer in Civics. The procedure prescribed under the provisions of the U.P. Secondary Education Services and Selection Board Act 1982 was not followed at all by the Committee of Management and instead the Committee of advertised post on 11.04.1998 16.04.1998 and appointed the petitioner on the post of Lecturer who allegedly joined on 31.08.1998. 4. Learned Single Judge while referring to various provisions of the U.P. Intermediate Education Act 1921 particularly in view of the provisions of Section 16(2) of the U.P. Secondary Education Services and Selection Board Act 1982 came to the conclusion that the appointment of the petitioner was void as the procedure prescribed under sub sectionof Section 16 of the Act of 1982 had not been followed at all. 5. Learned counsel for the petitioner appellant has relied upon a Full Bench judgment of this Court in the case of Santosh Kumar Singh vs. State of U.P. & Ors. reported in 2015AWC 462 6. We have carefully considered the submissions of the learned counsel for the petitioner appellant and we find no force in his 7. It has been admitted before us by learned counsel for the appellant that the petitioner appellant was appointed by the Committee of Management against a substantive vacancy pursuant to advertisement dated 11.04.1998 16.04.1998 issued by the Committee of Management. That substantive vacancy occurred on retirement of one Jai Narain Vishwakarma on 30.06.1998. The petitioner was appointed by the Committee of Management and he joined on 31.08.1998. The provisions of Section 16(1) of the Act of 1982 were not followed at all. Thus in terms of the procedure contained in sub section of Section 16 of the Act of 1982 the appointment of the petitioner by the Committee of Management was void. 8. The reliance placed by the learned counsel for the petitioner appellant on the Full Bench judgment of this Court in the case of Santosh Kumar Singhis of no help to the petitioner In the aforesaid judgment the Full Bench has framed question no.(c) as under : Whether under Section 16 E of the Intermediate Education Act 1921 Act of 1921) there is a power with the Committee of Management to make ad hoc appointment against short term vacancies and if so then for what period 9. The aforequoted question was answered by the Full Bench in paragraph 19 as under: c) Under Section 16 E of the Intermediate Education Act 1921 the Committee of Management is empowered to make an appointment against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in the case of death termination or otherwise of an incumbent occurring during an educational session. An appointment made under sub section of Section 16 E as provided in the proviso thereto shall in any case not continue beyond the end of educational session during which the appointment was made 10. Thus the Full Bench in the case of Santosh Kumar Singh supra) has dealt with the situation where the ad hoc appointment was to be made against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in case of death termination or otherwise of an incumbent occurring during an educational session. The facts of the present case are that a substantive vacancy was occurred on the retirement of one Jai Narain Vishwakarma on 30.06.1998 and the Committee of Management without following the statutory provisions of the Act of 1982 made advertisement on 11.04.1998 16.04.1998 and selected and appointed the petitioner who allegedly joined on 31.08.1998. Thus the judgment of the Full Bench has no application on facts of the present case 11. The next judgment in the case of Sushil Kumar Yadav relied upon by the learned counsel for the petitioner appellant is also of no help to the petitioner inasmuch as the facts were that two substantive vacancies occurred on 30.06.2011 and 30.06.2014 respectively and the Management sent the requisitions on 01.04.2011 and 17.06.2015 but the Selection Board did not recommend any candidate Consequently the Management advertised the vacancy on the aforesaid posts on 25.06.2017 for ad hoc appointment. On these facts the learned Single Judge while referring the provisions of Section 16 E(11) of the Act of 1982 held that the substantive appointment defined in the rules framed under the Act of 1982 does not include ad hoc appointment which may not exceed eleven months in academic session. Thus the judgment of the learned Single Judge in the case of Sushil Kumar Yadav supra) has no application on facts and circumstances of the Single Judge. 12. Thus for all the reasons stated above we do not find any error or illegality in the impugned order passed by the learned 13. The special appeal lacks merit and is therefore dismissed Order Date : 27.1.2022

Ashok Debbarma @ Achak Debbarma V/s State of Tripura

Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. CASE NAME:  Ashok Debbarma @ Achak Debbarma V/s State of Tripura CITATION: CRIMINAL APPEAL NOS.47-48 OF 2013 COURT: Supreme Court of India BENCH: K. S. Radhakrishnan J. Vikramajit Sen J. DECIDED ON: March 4, 2014. RELEVENT STATUTES: The Arms Act, 1959. The Indian Penal Code BRIEF FACTS & PROCEDURAL HISTORY: A group of Armed Extremists at Jarulbachai village in the night of 11.2.1997, set fire to twenty houses belonging to a group of linguistic minority community of Bengal settlers, in which 15 persons lost their lives, which included women and children and causing extensive damage to their properties.The Takarajala Police Station, West Tripura got information about the incident at about 11.00 p.m. on 11.2.1997 from Jarullabachai DAR Camp stating that extremists had set on fire a number of houses at Jarulbachai village and that the people had been shot dead and injured grievously.Information so received was entered into the General Diary at the Takarajala Police Station in the form of Entry No.292 dated 11.2.1997. PW18 (Officer-in-Charge) of Takarajala Police Station visited the Jarullabachai DAR Camp, cordoned off the area, and conducted search. Most of the houses of the village were found gutted by fire. On the very night of the occurrence, as many as 13 dead bodies were found lying at various places and three persons were found lying injured. A formal written information, as regards the occurrence, was received by the investigating officer from one Gauranga Biswas (PW2) from the place of occurrence. Based on the written information, which was so received at the place of occurrence, Takarajala Police Station Case No.12/97 under Sections 148/149/302/326/307/436 IPC read with Section 27(3) of the Arms Act, 1959 was registered. Later, a greater number of dead bodies were found and number of dead persons increased to 15, so also the number of injured persons.Dead bodies as well as injured persons were taken to GB Hospital at about 4.00 p.m. on 12.2.1997. Inquests were held on the dead bodies and post-mortem examinations were also conducted. PW.18, the Investigating Officer, seized vide seizure list (Ex.11), two empty cartridges and some ashes from the place of occurrence. Looking at the serious nature of the evidence, investigation was handed over to the Criminal Investigation Department (CID) and PW20 (a DSP) was entrusted with the investigation.PW20, on completion of the investigation, filed a charge-sheet under Sections 148/149/302/326/307/436 IPC read with Section 34 IPC and 27(3) of the Arms Act, 1959 read with Section 34 IPC against 11 persons. The Additional Sessions Judge, West Tripura, Agartala, having found the Appellant and Gandhi Deb Barma guilty of the offences under Sections 326, 436 and 302 read with Section 34 IPC and also Section 27(3) of the Arms Act, 1959 read with Section 34 IPC, declared both the accused guilty of the offences aforementioned and convicted them accordingly vide judgment dated 7.11.2005, on which date Gandhi Deb Barma was absent since he was absconding.Judgment was, therefore, pronounced by the Sessions Judge in the absence of the co-accused in terms of Section 353(6) CrPC. The Additional Sessions Judge then on 10.11.2005, after hearing the prosecution as well as the accused on the question of sentence, passed an order sentencing the Appellant to death on his conviction under Sections 148/149/302/326/307/436 IPC read with Section 27(3) of the Arms Act, 1959.The Additional Sessions Judge in terms of provisions contained in Section 366 (1) CrPC referred the matter to the High Court for confirmation of death sentence awarded to the Appellant, which was numbered as  criminal Reference No.02/2005. The High Court vide its judgment and order dated 5.9.2012 set aside the conviction of the Appellant under Section 27(3) of the Arms Act, 1959. However, the death sentence under Section 302 IPC read with Section 34 IPC, to the sentence passed for offence under Sections 326 and 436 read with Section 34 IPC, was sustained, against which these Appeals have been preferred. ISSUES:  Whether the High Courts’ order of sustaining the punishment under section 326, 436 and 34 of the IPC against the appellant in the present appeal correct?Whether this is one of the rarest of rare case, as held by the trial Court and affirmed by the High Court, so as to award death sentence to the accused? RATIO OF THE COURT: The High Court was right in holding that the Appellant is not guilty under Section 27(3) of the Arms Act, 1959, in view of the law declared by this Court in State of Punjab v. Dalbir Singh (2012) 3 SCC 346, wherein this Court held that Section 27(3) of the Arms Act is unconstitutional. The fact that such dastardly acts referred to earlier were committed in the Jarulbachai village in the night of 11.2.1997, is not disputed. since the accused persons were known to the witnesses and they were identified by face, the fact that no Test Identification Parade was conducted at the time of investigation, is of no consequence.The whole object behind the Test Identification Parade is really to find whether or not the suspect is the real offender. In Kanta Prashad v. Delhi Administration AIR 1958 SC 350, this Court stated that the failure to hold the Test Identification Parade does not make the evidence of identification at the trial inadmissible. However, the weight to be attached to such identification would be for the Court to decide and it is prudent to hold the Test Identification Parade with respect to witnesses, who did not know the accused before the occurrence.The mere fact that the Appellant was not named in the statement made before the police under Section 161 CrPC and, due to this omission, the evidence of PW10 and PW13 tendered in the Court is unreliable, cannot be sustained. if the evidence tendered by the witness in the witness box is creditworthy and reliable, that evidence cannot be rejected merely because a particular statement made by the witness before the Court does not find a place in the statement recorded under Section 161 CrPC.Under Section 313 statement, if the accused admits that, from the evidence of various witnesses, four persons sustained severe bullet injuries by the firing by the accused and his associates, that admission of guilt in Section 313 statement cannot be brushed aside. This Court in State of Maharashtra v. Sukhdev Singh and another (1992) 3 SCC 700 held that Sub-section (4) of section 313 says that the answers given by the accused in response to his examination under Section 313 CrPC can be taken into consideration in such an inquiry or trial.The answers given by the accused while examining him under Section 313, fully corroborate the evidence of PW10 and PW13 and hence the offences levelled against the Appellant stand proved and the trial Court and the High Court have rightly found him guilty for the offences under Sections 326, 436 and 302 read with Section 34 IPC.Dealing with the next issue the court was of the view that Appellant alone could not have organized and executed the entire crime. Eleven persons were originally charge-sheeted out of 30-35 group of persons who, according to the prosecution, armed with weapons like AK47, Dao, Lathi, etc., had attacked the villagers, fired at them and set ablaze their huts and belongings.But an accused has a profound right not to be convicted of an offence which is not established by the evidential standard of proof “beyond reasonable doubt”. This Court in Krishnan and another v. State represented by Inspector of Police (2003) 7 SCC 56, held that Law cannot afford any favourite other than truth and to constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague Courts, while examining whether any doubt is beyond reasonable doubt, may carry in their mind, some “residual doubt”, even though the Courts are convinced of the accused persons’ guilt beyond reasonable doubt.For instance, in the instant case, it was pointed out that, according to the prosecution, 30-35 persons armed with weapons such as fire arms, dao, lathi etc., set fire to the houses of the villagers and opened fire which resulted in the death of 15 persons, but only 11 persons were charge-sheeted and, out of which, charges were framed only against 5 accused persons. Even out of those 5 persons, 3 were acquitted, leaving the appellant and another, who is absconding. Court, in such circumstances, could have entertained a “residual doubt” as to whether the appellant alone had committed the entire crime, which is a mitigating circumstance to be taken note of by the court, at least when the court is considering the question whether the case falls under the rarest of rare category.The court observed the evidence tendered by the witness in the witness box is creditworthy reliable, that evidence cannot be rejected merely because a particular statement made by the witness before the Court does not find a place in the statement recorded under Section 161 CrPC.The crime perpetrated by a group of people in an extremely brutal, grotesque and dastardly manner, could not have been thrown upon the appellant alone without charge-sheeting other group of persons numbering around 35. All element test as well as the residual doubt test, in a given case, may favour the accused, as a mitigating factor. The question raised, in this case, is with regard to ineffective legal assistance which, according to the counsel, caused prejudice to the accused and, hence, the same may be treated as a mitigating circumstance while awarding sentence.The court had laid down three tests – crime test, criminal test and RR test, not the “balancing test”, while deciding the proportionality of the sentence. To award death sentence, crime test has to be fully satisfied and there should be no mitigating circumstance favouring the accused, over and above the RR test.Only safeguard, statutorily and judicially provided is to give special reasons, not merely “reasons” before awarding the capital punishment In Santosh Kumar Satisbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498, this Court highlighted the fact that the arbitrariness in sentencing under Section 302 may violate the idea of equal protection clause under Article 14 and the right to life under Article 21 of the Constitution.Circumstances which favoured the accused in the instant case, to hold it as not a rarest of rare case, which are that the appellant alone could not have executed such a crime, which resulted in the death of 15 persons and leaving so many injured and setting ablaze 23 houses, that is the entire elements of the crime could not have been committed by the appellant alone. DECISION HELD: While altering the death sentence to that of imprisonment for life, the court felt are inclined to fix the term of imprisonment as 20 years without remission, over and above the period of sentence already undergone, which, would meet the ends of justice.Ordered accordingly.The Appeals are, accordingly, disposed of.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.47 48 OF 2013 Ashok Debbarma @ Achak Debbarma State of Tripura JUDGMENT K. S. RADHAKRISHNAN J 1. We are in this case concerned with a tragic incident in which a group of Armed Extremists at Jarulbachai village in the night of 11.2.1997 set fire to twenty houses belonging to a group of linguistic minority community of Bengal settlers in which 15 persons lost their lives which included women and children and causing extensive damage to their properties. The Takarajala Police Station West Tripura got information about the incident at about 11.00 p.m. on 11.2.1997 from Jarullabachai DAR Camp stating that extremists had set on fire a number of houses at Jarulbachai village and that the people had been shot dead and injured grievously. Information so received was entered into the General Diary at the Takarajala Police Station in the form of Entry No.292 dated 11.2.1997. PW18of Takarajala Police Station visited the Jarullabachai DAR Camp cordoned off the area and conducted search. Most of the houses of the village were found gutted by fire. On the very night of the occurrence as many as 13 dead bodies were found lying at various places and three persons were found lying injured. A formal written information as regards the occurrence was received by the investigating officer from one Gauranga Biswas from the place of occurrence. Based on the written information which was so received at the place of occurrence Takarajala Police Case No.12 97 148 149 302 326 307 436 IPC read with Section 27(3) of the Arms Act 1959 was registered. Later more number of dead bodies were found and number of dead persons increased to 15 so also the number of injured persons. Dead bodies as well as injured persons were taken to GB Hospital at about 4.00 p.m. on 12.2.1997. Inquests were held on the dead bodies and post mortem examinations were also conducted. PW.18 the Investigating Officer seized vide seizure listtwo empty cartridges and some ashes from the place of occurrence. Looking at the serious nature of the evidence investigation was handed over to the Criminal Investigation Departmentand PW20was entrusted with the investigation PW20 on completion of the investigation filed a charge sheet under Sections 148 149 302 326 307 436 IPC read with Section 34 IPC and 27(3) of the Arms Act 1959 read with Section 34 IPC against 11 persons includingRabi Deb Barma Gandhi Deb Barma Mantu Deb Barma Sambhuram Deb Barma Budhraj Deb Barma. Charge sheet was also filed against some other accused who were found absconding namely Subha Deb Barma Sandhya Deb Barma 3) Samprai Deb Barma Falgoon Deb Barma Bijoy Deb Barma Budh Deb Barma Mangal Deb Barma 8) Sankar Deb Barma Kaphur Deb Barma Sandhyaram Deb Barma alias Phang andAshok Deb Barmaof the Arms Act 1959 read with Section 34 IPC which included the Appellant herein. All the above mentioned persons pleaded not guilty and claimed to be tried. The prosecution in order to establish its case examined 20 witnesses. Two accused persons namely Gandhi Deb Barma and Ashok Deb Barma alias Ashok Achak were examined under Section 313 CrPC and in their examinations they denied to have committed the alleged offences. Due to want of evidence the trial Court acquitted three persons vide its order dated 23.4.2005 under Section 232 CrPC and only two accused persons namely Gandhi Deb Barma and the Appellant herein were called upon in terms of Section 232 CrPC to enter on their defence and accordingly the defence adduced evidence by examining two witnesses. The Additional Sessions Judge West Tripura Agartala having found the Appellant and Gandhi Deb Barma guilty of the offences under Sections 326 436 and 302 read with Section 34 IPC and also Section 27(3) of the Arms Act 1959 read with Section 34 IPC declared both the accused guilty of the offences aforementioned and convicted them accordingly vide judgment dated 7.11.2005 on which date Gandhi Deb Barma was absent since he was absconding. Judgment was therefore pronounced by the Sessions Judge in the absence of the co accused in terms of Section 353(6) CrPC. The Additional Sessions Judge then on 10.11.2005 after hearing the prosecution as well as the accused on the question of sentence passed an order sentencing the Appellant to death on his conviction under Sections 148 149 302 326 307 436 IPC read with Section 27(3) of the Arms Act 1959. The Additional Sessions Judge in terms of provisions contained in Section 366CrPC referred the matter to the High Court for confirmation of death sentence awarded to the Appellant which was numbered as Criminal Reference No.02 2005. The Appellant also preferred Criminal Appeal94 2005. Both the Appeals as well as the Reference were heard by the High Court. The High Court vide its judgment and order dated 5.9.2012 set aside the conviction of the Appellant under Section 27(3) of the Arms Act 1959. However the death sentence under Section 302 IPC read with Section 34 IPC in addition to the sentence passed for offence under Sections 326 and 436 read with Section 34 IPC was sustained against which these Appeals have been Shri T.R. Venkita Subramoniam learned counsel appearing for the Appellant submitted that the prosecution has miserably failed to establish beyond reasonable doubt the involvement of the Appellant in the incident in question. Learned counsel pointed out that even though 20 witnesses were examined only two witnesses viz. PW10 and PW13 in their deposition in the Court had mentioned the name of the Appellant which is nothing but an improvement of the prosecution case especially when the Appellant was not named in the FIR. Learned counsel also pointed out that PW10 and PW13 had not mentioned the name of the Appellant in their statements made to the Police under Section 161 CrPC. Learned counsel placed reliance on the judgment of this Court in Tahsildar Singh and another v. State of U.P. AIR 1959 SC 1012 and Shashidhar Purandhar Hegde and another v. State of Karnataka12 SCC 492 and submitted that the omission to mention the name of the Appellant in the FIR as well as in the Section 161 statement was a significant omission which may amount to contradiction and the evidence of those witnesses should not have been relied upon for recording conviction. Learned counsel also pointed out that the prosecution completely erred in not conducting the Test Identification Parade. Consequently no reliance could have been placed on the statement of witnesses stating that they had seen the Appellant participating in the incident. Placing reliance on the judgment of this Court in Dana Yadav alias Dahu and others v. State of Bihar7 SCC 295 learned counsel pointed out that ordinarily if the accused is not named in the FIR his identification by the witnesses in Court should not be relied upon. Learned counsel also submitted that the High Court has committed an error in taking note of the fact that the Appellant was absconding immediately after the incident. Such a presumption should not have been drawn by the Court especially when the question regarding abscondance was not put on the Appellant in the statement recorded while examining him under Section 313 CrPC. Learned counsel placed reliance on the judgment of this Court in Shamu Balu Chaugule v. State of Maharashtra1 SCC 438 S. Harnam Singh v. State (1976) 2 SCC 819 Ranvir Yadav v. State of Bihar6 SCC 595 and Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468. Learned counsel submitted that in any view this is not a case which falls in the category of rarest of rare case warranting capital punishment. Learned counsel submitted that the appellant is a tribal coming from lower strata of the society totally alienated from the main stream of the society and such extremist’s upsurge might have occurred due to neglect and frustration. Further it was pointed out that seldom people like the appellant get effective legal assistance and while applying the RR test the question whether the appellant had got proper legal assistance should also be examined. Learned counsel after referring to few judgments of the U.S. Supreme Court submitted that the Court while considering the question of death sentence should also examine whether there is any “residual doubt” over the guilt of the accused. 10. Shri Gopal Singh learned counsel for the State highlighted the manner in which the entire operation was executed by a mob consisting of 30 to 35 persons. Learned counsel submitted that they mercilessly fired at women and children and others with latest arms and ammunitions by killing as many as 15 persons leaving large number of persons injured. Learned counsel pointed out that they set ablaze various huts in which poor and illiterate persons were living. Many of the persons who participated in the incident were known to the locals and the prosecution has examined as many as 20 witnesses of which the evidence tendered by PW10 and PW13 was very crucial so far as the involvement of the Appellant is concerned. Learned counsel pointed out that the Courts have rightly believed the evidence of the above mentioned witnesses and the mere fact that the Appellant’s name did not figure in the initial complaint or in the statement under Section 161 CrPC would not absolve him from the guilt since the involvement of the appellant has been proved beyond reasonable doubt. Learned counsel also submitted that there is no necessity of conducting the Test Identification Parade since the accused persons were known to the witnesses. Learned counsel also submitted that all relevant incriminating questions were put by the Court to the accused while he was examined under Section 313 CrPC and the answers given by the accused would be sufficient to hold him guilty of the charges levelled against him. Learned counsel also submitted that both the trial Court as well as the High Court have correctly appreciated the oral and documentary evidence adduced and the Court rightly awarded death sentence which falls under the category of rarest of rare case. 11. We may indicate that though the trial Court as well as the High Court have found that both Gandhi Deb Barma and the Appellant were guilty of the various offences levied against them we are in this case concerned with the Appeal filed by Ashok Deb Barma who has also been awarded death sentence by the trial Court which was confirmed by the High Court. At the outset we may point out that the High Court is right in holding that the Appellant is not guilty under Section 27(3) of the Arms Act 1959 in view of the law declared by this Court in State of Punjab v. Dalbir Singh3 SCC 346 wherein this Court held that Section 27(3) of the Arms Act is unconstitutional. The fact that such dastardly acts referred to earlier were committed in the Jarulbachai village in the night of 11.2.1997 is not disputed. The question that we are called upon to decide is with regard to the complicity of the accused Appellant who was found guilty by the trial Court as well as by the High Court. The facts would clearly indicate that in this case 15 persons were brutally and mercilessly killed and the houses of villagers with all household belongings and livestock were buried to ashes. PW1 an injured person had given a detailed picture of what had happened on the fateful day and he was not cross examined by the defence. The evidence of PW1 was also fully corroborated by PW2. PW18 the officer in charge of Takarajala Police Station West Tripura as already indicated had visited the site since he got information at the Jarullabachai DAR Camp. At about 4.00 a.m. the next day he had received the complaint from PW2 by the time he had already started investigation after getting information from Jarullabachai DAR Camp and on his personal visit to the site. In other words the police machinery had already been set in motion on the basis of the information PW18 had already got and it was during the course of investigation he had received the complaint from PW2. Though the complaint received from PW2 was treated as the First Information Report the fact remains that even before that PW18 had started investigation. Consequently written information Ex.1) received from PW2 at best could be a statement of PW2 made in writing to the police during the course of investigation. Of course it can be treated as a statement of PW2 recorded under Section 161 Cr.P.C and the contents thereof could be used not as the First Information Report but for the purpose of contradicting PW2. 12. PW20 the DSPas already indicated was later entrusted with the investigation because of the seriousness of the crime. PW20 visited the place of occurrence and noticed that the entire hutments were gutted by fire 35 families were affected by fire 15 persons had been killed and four seriously injured. PW20 during investigation received 15 post mortem reports from Dr. Pijush Kanti Das of IGM Hospitalwho conducted the post mortem on the dead bodies. PW20 had also forwarded on 29.4.2011 one fire cartridge case to ballistic expert for his opinion and on 19.5.1997 he received the expert opinion of the same date to the effect that it was around 7.62 mm ammunition. PW20 has also deposed that the fire arm was AK47 rifle. PW20 has also asserted that the Appellant was a person who was known to the locality and he remained as an absconder from the day of the occurrence. The evidence of PW20 as well as the evidence tendered by PW9 would clearly indicate that the cartridge seized from the site was found to be of 7.62 mm ammunition and the bullets were fired from an automatic fire arm like SLR and in the instant case the fire arm used was nothing but an AK 47 rifle. 13. Evidence of PWs6 7 and 8 Medical Officers posted in G.B. Hospital at Agartala would indicate that many of the persons who had sustained gunshot injuries were treated in the hospital by them and they had submitted their reports which were also marked in evidence. The fact that the fire arms were used in commission of the crime was fully corroborated by the evidence of PW20 read with evidence of PWs 6 to 9. 14. We may now refer to the crucial evidence of some of the witnesses who had stated the involvement of the Appellant in the instant case. PW10 has clearly stated in his deposition that the accused as well as Gandhi Deb Barmawere firing with fire arms due to which his brother died on the spot with bullet injuries. PW10 has further deposed that there were around 30 35 members in the group who had either set fire to the huts or opened fire from their fire arms. PW10 in his cross examination deposed that he had stated before the police that he had seen Gandhi Deb Barma as well as the Appellant opening the fires which statement was not effectively cross examined. PW10’s version that he had seen the Appellant firing from his fire arm remained wholly unshaken. PW10 asserted in his cross examination that he had stated before the police that his brother died due to bullets fired by the Appellant. PW11 has also deposed that the extremists had killed 15 persons injured large number of persons and 23 houses were gutted in fire. PW11 of course did not name the appellant as such but has fully corroborated the evidence tendered by PW10. PW11’s evidence reinforces the evidence of PW10 that the Appellant is one of those persons who had attacked the villagers and set fire to the houses and injured or killed large number of men women and children. PW14 a resident of the locality has also corroborated the evidence of PW11 15. PW13 is one of the persons who got injured in the incident lost both his son and wife in the firing occurred on the fateful day. PW13 it is reported was examined by the police on the night of the incident but of course he did name the appellant then consequently the appellant’s name did not figure in the FIR. PW13 in his evidence deposed that his wife Saraswati aged around 30 years and his daughter Tulshi aged about 5 years had died in the incident. PW13 deposed that the miscreants had set fire to his house and when he wanted to come out of his house 10 12 miscreants with fire arms fired at him and he sustained injuries. PW13 identified the accused in the Court. 16. We have gone through the oral evidence of PW10 and PW13 and in our view the trial Court and the High Court have rightly appreciated their evidence and the involvement of the Appellant in the above incident including the fact that he had fired at various people which led to the killing of relatives of PW10 and PW13. We are of the view that since the accused persons were known to the witnesses and they were identified by face the fact that no Test Identification Parade was conducted at the time of investigation is of no consequence. The primary object of the Test Identification Parade is to enable the witnesses to identify the persons involved in the commission of offence(s) if the offenders are not personally known to the witnesses. The whole object behind the Test Identification Parade is really to find whether or not the suspect is the real offender. In Kanta Prashad v. Delhi Administration AIR 1958 SC 350 this Court stated that the failure to hold the Test Identification Parade does not make the evidence of identification at the trial inadmissible. However the weight to be attached to such identification would be for the Court to decide and it is prudent to hold the Test Identification Parade with respect to witnesses who did not know the accused before the occurrence. Reference may also be made to the judgment of this Court in Harbhajan Singh v. State of Jammu & Kashmir 4 SCC 480 Jadunath Singh and another v. State of UP3 SCC 518 and George & others v. State of Kerala and another4 SCC 605. 17. Above mentioned decisions would indicate that while the evidence of identification of an accused at a trial is admissible as substantive piece of evidence would depend on the facts of a given case as to whether or not such a piece of evidence can be relied upon as the sole basis of conviction of an accused. In Malkhansingh v. State of M.P.5 SCC 746 this Court clarified that the Test Identification Parade is not a substantive piece of evidence and to hold the Test Identification Parade is not even the rule of law but a rule of prudence so that the identification of the accused inside the Court room at the trial can be safely relied upon. We are of the view that if the witnesses are trustworthy and reliable the mere fact that no Test Identification Parade was conducted itself would not be a reason for discarding the evidence of those witnesses. This Court in Dana Yadav alias Dahu supra) has examined the points on the law at great length and held that the evidence of identification of an accused in Court by a witness is substantive evidence whereas identification in Test Identification Parade is though a primary evidence but not substantive one and the same can be used only to corroborate the identification of the accused by witness in the Court. So far as the present case is concerned PW10 and PW13 have identified the accused in open Court which is the substantive piece of evidence and such identification by the eye witnesses has not been shaken or contradicted. The trial Court examined in detail the oral evidence tendered by those witnesses which was accepted by the High Court and we find no error in the appreciation of the evidence tendered by those witnesses. The mere fact that the Appellant was not named in the statement made before the police under Section 161 CrPC and due to this omission the evidence of PW10 and PW13 tendered in the Court is unreliable cannot be sustained. Statements made to the police during investigation were not substantive piece of evidence and the statements recorded under Section 161 CrPC can be used only for the purpose of contradiction and not for corroboration. In our view if the evidence tendered by the witness in the witness box is creditworthy and reliable that evidence cannot be rejected merely because a particular statement made by the witness before the Court does not find a place in the statement recorded under Section 161 CrPC. Police officer recorded statements of witnesses in an incident where 15 persons lost their lives 23 houses were set ablaze and large number of persons were injured. PW10 lost his real brother and PW13 lost his daughter as well as his wife and in such a time of grief they would not be in a normal state of mind to recollect who were all the miscreants and their names. The witnesses may be knowing the persons by face not their names. Therefore the mere fact that they had not named the accused persons in Section 161 statement at that time that would not be a reason for discarding the oral evidence if their evidence is found to be reliable and creditworthy. 19. Learned counsel appearing for the accused has raised the question that incriminating questions were not put to the accused while he was examined under Section 313 CrPC. The object of Section 313 CrPC is to empower the Court to examine the accused after evidence of the prosecution has been taken so that the accused is given an opportunity to explain the circumstances which may tend to incriminate him. The object of questioning an accused person by the Court is to give him an opportunity of explaining the circumstances that appear against him in the evidence. In the instant case the accused was examined in the Court on 23.4.2005 by the Additional Sessions Judge West Tripura Agartala which inter alia reads as follows : Question : It transpires from the evidence of PW No.10 11 and 13 that they had recognized you amongst the extremists. Is it true It transpires from the evidence of the above witnesses that Dulal Ajit Saraswati and Hemender sustained severe bullet injuries by the firing of you and your associates What do you get to say regarding It is evident from the evidence of these witnesses and other information that at that night Sachindra Sarkar Archana Garkar Dipak Sarkar Gautam Sarkar Shashi Sarkar Prosenjit Sarkar Saraswati Biswas Tulsi Biswas Narayan Das Mithu Das Bitu Das Khelan Sarkar Sujit Sarkar Bipul Sarkar and Chotan Sarkar were killed by the bullets of fire arms What do you get to say regarding Answer : .3 SCC 700 held that since no oath is administered to the accused the statement made by the accused under Section 313 CrPC will not be evidence stricto sensu and the accused of course shall not render himself liable to punishment merely on the basis of answers given while he was being examined under Section 313 CrPC. But Sub sectionsays that the answers given by the accused in response to his examination under Section 313 CrPC can be taken into consideration in such an inquiry or trial. This Court in Hate Singh Bhagat Singh held that the answers given by the accused under Section 313 examination can be used for proving his guilt as much as the evidence given by the prosecution witness. In Narain Singh v. State of Punjab3 SCR 678 this Court held that when the accused confesses to the commission of the offence with which he is charged the Court may rely upon the confession and proceed to convict him. 22. This Court in Mohan Singh v. Prem Singh and another 10 SCC 236 held that the statement made in defence by accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution but only a part of such statement under Section 313 CrPC cannot be made the sole basis of his conviction. In this connection reference may also be made to the judgment of this Court in Devender Kumar Singla v. Baldev Krishan Singla 9 SCC 15 and Bishnu Prasad Sinha and another v. State of Assam 2007) 11 SCC 467. The above mentioned decisions would indicate that the statement of the accused under Section 313 CrPC for the admission of his guilt or confession as such cannot be made the sole basis for finding the accused guilty the reason being he is not making the statement on oath but all the same the confession or admission of guilt can be taken as a piece of evidence since the same lends credence to the evidence led by the prosecution. 23. We may however indicate that the answers given by the accused while examining him under Section 313 fully corroborate the evidence of PW10 and PW13 and hence the offences levelled against the Appellant stand proved and the trial Court and the High Court have rightly found him guilty for the offences under Sections 326 436 and 302 read with Section 34 IPC. 24. We shall now consider whether this is one of the rarest of rare case as held by the trial Court and affirmed by the High Court so as to award death sentence to the 25. In this case altogether 11 persons were charge sheeted for the offences under Sections 326 436 and 302 read with Section 34 IPC and also Section 27(3) of the Arms Act 1959 read with Section 34 IPC but charges were framed only against 5 persons under Sections 326 436 and 302 read with Section 34 IPC and also Section 27(3) of the Arms Act 1959 read with Section 34 IPC. For want of evidence three accused persons Budhrai Deb Barma Mantu Deb Barma and Subhuram Deb Barma were acquitted on 23.4.2005 under Section 232 CrPC and only two accused persons Appellant and Gandhi Deb Barma were called upon in terms of Section 232 CrPC to enter on their defence. Out of 11 accused we are left with only two accused persons who were found guilty out of whom Gandhi Deb Barma is now absconding hence Page 28 we are concerned only with the Appellant. We will first examine whether the appellant was solely responsible for all the elements of crime. ELEMENTS OF CRIME 26. Appellant alone could not have organized and executed the entire crime. Eleven persons were originally charge sheeted out of 30 35 group of persons who according to the prosecution armed with weapons like AK47 Dao Lathi etc. had attacked the villagers fired at them and set ablaze their huts and belongings. The High Court while affirming the death sentence stated “The perpetrators of the crime including the present appellant acted in most cruel and inhuman manner and murders were committed in extremely brutal grotesque and dastardly manner which is revolting and ought to be taken to have vigorously shaken the collective conscience of the society. The victims all innocent were helpless when they were put to death or grievously injured or when their houses and belongings were burnt to ashes. The case at hand therefore squarely falls in the category of ‘rarest of rare cases’ where death penalty could be the only The High Court therefore while confirming the death sentence recognized the accused as one of the “perpetrators of the crime” not the sole and then stated that they all acted in most cruel and inhuman manner and committed the offences. Offences were committed by other so called perpetrators of the crime as well but they could not be apprehended or charge sheeted. Appellant alone or the accused absconding though found guilty are not solely responsible for all the elements of the crime but other perpetrators of the crime also who could not be apprehended. The Courts below put the entire elements of crime on the accused and treated those elements as aggravating circumstances so as to award death sentence which cannot be sustained REASONABLE DOUBT AND RESIDUAL DOUBT 27. An accused has a profound right not to be convicted of an offence which is not established by the evidential standard of proof “beyond reasonable doubt”. This Court in Krishnan and another v. State represented by Inspector of Police 7 SCC 56 held that the doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth and to constitute reasonable doubt it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence or from the lack of it as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary trivial or a merely possible doubt but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. In Ramakant Rai v. Madan Rai and others Massachusetts Court as early as in 1850 has explained the expression “reasonable doubt” “Reasonable doubt ... is not a mere possible doubt because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding In our criminal justice system for recording guilt of the accused it is not necessary that the prosecution should prove the case with absolute or mathematical certainty but only beyond reasonable doubt. Criminal Courts while examining whether any doubt is beyond reasonable doubt may carry in their mind some “residual doubt” even though the Courts are convinced of the accused persons’ guilt beyond reasonable doubt. For instance in the instant case it was pointed out that according to the prosecution 30 35 persons armed with weapons such as fire arms dao lathi etc. set fire to the houses of the villagers and opened fire which resulted in the death of 15 persons but only 11 persons were charge sheeted and out of which charges were framed only against 5 accused persons. Even out of those 5 persons 3 were acquitted leaving the appellant and another who is absconding. Court in such circumstances could have entertained a “residual doubt” as to whether the appellant alone had committed the entire crime which is a mitigating circumstance to be taken note of by the court at least when the court is considering the question whether the case falls under the rarest of rare category. ‘Residual doubt’ is a mitigating circumstance sometimes used and urged before the Jury in the United States and generally not found favour by the various Courts in the United States. In Donald Gene Franklin v. James A. Lynaugh Director Texas Department of Corrections 487 US 164: 101 L Ed 2d 155 while dealing with the death sentence held as follows “Petitioner also contends that the sentencing procedures followed in his case prevented the jury from considering in mitigation of sentence any "residual doubts" it might have had about his guilt. Petitioner uses the phrase "residual doubts" to refer to doubts that may have lingered in the minds of jurors who were convinced of his guilt beyond a reasonable doubt but who were not absolutely certain of his guilt. Brief for Petitioner 14. The plurality and dissent reject petitioner s residual doubt" claim because they conclude that the special verdict questions did not prevent the jury from giving mitigating effect to its residual doubt[s]" about petitioner s guilt. See ante at 487 U. S. 175 post at 487 U. S. 189. This conclusion is open to question however. Although the jury was permitted to consider evidence presented at the guilt phase in the course of answering the special verdict questions the jury was specifically instructed to decide whether the evidence supported affirmative answers to the special questions "beyond a reasonable doubt." App. 15 learned counsel pointed out that under Article 21 of our Constitution it is a legal right of the accused to have a fair trial which the accused was deprived of. 33. Right to get proper and competent assistance is the facet of fair trial. This Court in Madhav Hayawadanrao S. Hoskot v. State of Maharashtra3 SCC 544 State of Haryana v. Darshana Devi and Others 1979) 2 SCC 236 Hussainara Khatoon and others IV) v. Home Secretary State of Bihar Patna1 SCC 98 and Ranjan Dwivedi v. Union of India 1983) 3 SCC 307 pointed out that if the accused is unable to engage a counsel owing to poverty or similar circumstances trial would be vitiated unless the State offers free legal aid for his defence to engage a counsel to whose engagement the accused does not object. It is a constitutional guarantee conferred on the accused persons under Article 22(1) of the Constitution. Section 304 CrPC provides for legal assistance to the accused on State expenditure. Apart from the statutory provisions contained in Article 22(1) and Section 304 CrPC in Hussainara Khatoon casethis Court has held that this is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty indigence or incommunicado situation 34. The question raised in this case is with regard to ineffective legal assistance which according to the counsel caused prejudice to the accused and hence the same may be treated as a mitigating circumstance while awarding sentence. Few circumstances pointed out to show ineffective legal assistance are as follows 1) Failure to cross examine PW1 the injured first informant which according to the counsel is a strong circumstance of “ineffective legal assistance”. 2) The omission to point out the decision of this Court in Dalbir Singhwherein this Court held that Section 27(3) of the Arms Act was unconstitutional was a serious omission of “ineffective legal advice” at the trial stage even though the High Court has found the appellant not guilty under Section 27 of 3) Ventured to cross examine PW17 who was not put the Arms Act 1959 to chief examination 35. Right to get proper legal assistance plays a crucial role in adversarial system since access to counsel’s skill and knowledge is necessary to accord the accused an ample opportunity to meet the case of the prosecution. In Charles E. Strickland case the US Court held that a convicted defendant alleging ineffective assistance of counsel must show not only that counsel was not functioning as the counsel guaranteed by the Sixth Amendment so as to provide reasonable effective assistance but also that counsel’s errors were so serious as to deprive the defendant of a fair trial. Court held that the defiant convict should also show that because of a reasonable probability but for counsel’s unprofessional errors the results would have been different. The Court also held as follows “Judicial scrutiny of counsel’s performance must be highly deferential and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight to reconstruct the circumstances of counsel’s challenged conduct and to evaluate the conduct from counsel’s perspective at the A court must indulge a strong time. presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. These standards require no special amplification in order to define counsel’s duty to investigate the duty at issue in this case.” 36. The Court in determining whether prejudice resulted from a criminal defence counsel’s ineffectiveness must consider the totality of the evidence. When an accused challenges a death sentence on the ground of prejudicially ineffective representation of the counsel the question is whether there is a reasonable probability that absent the errors the Court independently reweighs the evidence would have concluded that the balance of aggravating and mitigating circumstances did not warrant the death sentence. 37. When we apply the above test to the facts of this case we are not prepared to say that the accused was not given proper legal assistance by the counsel appeared before the trial Court as well as before the High Court. As already discussed in detail there is clinching evidence in this case of the involvement of the appellant. The evidence tendered by the eye witnesses is trustworthy and reliable. True PW17 should not have been subjected to cross examination without being put to chief examination. Section 138 of the Evidence Act specifically states that witness shall be first examined in chief then cross examined then re examined. Consequently there is no scope under Section 138 of the Evidence Act to start with cross examination of a witness who has not been examined in chief an error committed by the trial Court. In Sukhwant Singh v. State of Punjab 3 SCC 367 this Court held that after amendment of CrPC tendering of witness for cross examination is not permissible. Under the old Code such tendering of witnesses was permissible while the committing Magistrate used to record the statement of witnesses which could be treated at the discretion of the trial Judge as substantial evidence of the trial. In that case this Court further held as follows “Section 138 Evidence Act envisages that a witness would first be examined in chief and then subjected to cross examination and for seeking any clarification the witness may be re examined by the prosecution. There is no meaning in tendering a witness for cross examination only. Tendering of a witness for cross examination as a matter of fact amounts to giving up of the witness by the prosecution as it does not choose to examine him in chief.” Later in Tej Prakash v. State of Haryana 7 SCC 322 this Court following its earlier judgment in Sukhwant Singhheld as follows “18. As far as Dr O.P. Poddar is concerned he was only tendered for cross examination without his being examined in chief. Though Dr O.P. Poddar was not examined in chief this procedure of tendering a witness for cross examination is not warranted by law. This Court in Sukhwant Singh v. State of Punjab3 SCC 367 held that permitting the prosecution to tender a witness for cross examination only would be wrong and “the effect of their being tendered only for cross examination amounts to the failure of the prosecution to examine them at the trial”. In the present case however non examination of Dr O.P. Poddar is not very material because the post mortem report coupled with the testimonies of Dr K.C. Jain PW 1 and Dr J.L. Bhutani PW 9 were sufficient to enable the courts to come to the conclusion about the cause of death.” 38. Participation and involvement of the appellant in the instant crime have been proved beyond reasonable doubt. At the time of commission of the offence he was 30 years of age now 45. Facts would clearly indicate that he is one of the members of group of extremist persons waging war against the linguistic group of people in the State of Tripura. Persons like the appellant armed with sophisticated weapons like AK 47 attacked unarmed and defenceless persons which included women and children. Prosecution has stated that the minority community in the State of Tripura is often faced with some extremists’ attacks and no leniency be shown to such persons at the peril of innocent people residing in the State of Tripura. 39. We have laid down three tests crime test criminal test and RR test not the “balancing test” while deciding the proportionality of the sentence. To award death sentence crime test has to be fully satisfied and there should be no mitigating circumstance favouring the accused over and above the RR test. The hallmark of a sentencing policy it is often said that sufficiently guides and attracts the Court is the presence of procedures that require the Court to consider the circumstances of the crime and the criminal before it recommends sentence. 40. Arbitrariness discrimination and inconsistency often loom large when we analyze some of judicial pronouncements awarding sentence. Of course it is extremely difficult to lay down clear cut guidelines or standards to determine the appropriate sentence to be awarded. Even the ardent critics only criticize but have no concrete solution as such for laying down a clear cut policy in sentencing. Only safeguard statutorily and judicially provided is to give special reasons not merely “reasons” before awarding the capital punishment In Santosh Kumar Satisbhushan Bariyar v. State of Maharashtra 6 SCC 498 this Court highlighted the fact that the arbitrariness in sentencing under Section 302 may violate the idea of equal protection clause under Article 14 and the right to life under Article 21 of the Constitution. Many times it may be remembered that the ultimate sentence turns on the facts and circumstances of each case. The requirement to follow the three tests including the necessity to state “special reasons” to some extent allay the fears expressed in Santosh Kumar Satisbhushan Bariyar casev. State of Karnataka 13 42. Consequently while altering the death sentence to that of imprisonment for life we are inclined to fix the term of imprisonment as 20 years without remission over and above the period of sentence already undergone which in our view would meet the ends of justice. 43. The Appeals are accordingly disposed of K. S. Radhakrishnan Vikramajit Sen) New Delhi March 4 2014

Property suit lacking clear reasons for actionable claim can be dismissed: High Court of Delhi

When the plaintiff pleads for claim over property, it is important that the details of such property in its entirety are disclosed and vague disclosure of facts cannot be admissible in court.  This was decided in the case of Master Ansh Kapoor & Anr V. K.B. Kapur & Ors [CS(OS) 3438/2014 and IA No. 3789/2016] in the High Court Of Delhi by Hon’ble Justice Jayant Nath. This suit is filed seeking a preliminary decree of partition of the suit properties. In this case Chand Kapoor, the great grandfather of the plaintiffs is said to have acquired the property in Darya Ganj which is said to be an HUF property. He had two sons, namely, defendant No. 1 and Sh. Parvesh Kapur and four daughters. After his death,  his estate fell in the hands of his sons his estate fell in the hands of his sons. The plaintiffs by birth have a right in the said property. Hence, the property retains its ancestral character and the plaintiffs are coparceners in such ancestral property. All the properties, which are subject matter of this suit, were bought from the sale proceeds of the Darya Ganj HUF property. the plaintiffs has reiterated that the plaintiffs are entitled to 1/8th share in the suit properties owned by their great grandfather who died intestate. The court noted that the matter is at the stage of framing of issues. It said that it is settled position of law that CPC does not require all matters to be decided only after trial or unless admissions are made. Issues are to be framed on material proposition of law and facts which the plaintiff alleges in order to show a right to sue or the defendant must allege in order to constitute his defence. The court referred the case of Promod Kumar Jain & Ors. vs. Ram Kali Jain & Ors., MANU/DE/1115/2020 where the court held as follows: “mere clever drafting by advocates cannot compel the Courts to put a suit to trial and the Court is entitled to see through and clear the maze sought to be raised and see what the real defence is, it is not as if the CPC requires all matters to be decided only after trial, unless admissions are made; ) issues are to be framed on material propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence” The court observed that the legal position as noted above is quite clear. Under Order 6 Rule 4 CPC, there is a legal requirement to provide all necessary factual details of the cause of action which must be clearly stated. Once it is claimed that the property was thrown into a common hotch-potch, it is necessary that the exact details of the specific date, month, year, etc. of creation of the HUF for the first time by throwing the property into a hotch-potch must be clearly pleaded. Averments have also to be made by factual reference to each property claimed to be an HUF property as to how the same is an HUF property. As noted above by a Coordinate bench of this court in the aforementioned case that there is a known tendency of litigants to include unnecessarily many properties as HUF properties, which is done for less than an honest motive.

IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 12.02.2021 CS(OS) 3438 2014 and IA No. 3789 2016 MASTER ANSH KAPOOR & ANR. Plaintiffs Through Ms.Deepti Kathpalia Adv. K.B. KAPUR & ORS. Defendants Through Mr.Harshvardhan Pandey Adv. for D 1 & 2. HON BLE MR. J USTICE J AYANT NATH J AYANT NATH J . This suit is filed seeking a preliminary decree of partition of the suit properties namely J 5 Ground Floor Saket New Delhi 110007 5 B Sagar Apartment 6 Tilak Marg New Delhi and other properties mentioned in relation to the share of the plaintiffs. The plaintiffs are minors being represented through their mother Smt.Shelly Kapur. Defendant No.1 is the grandfather of the minor plaintiffs. Defendant No.2 is the grandmother of the minor plaintiffs. Defendant No.3 is the father of the plaintiffs and defendant No.4 is the sister of defendant It is pleaded in the plaint that the great grandfather of the plaintiffs Late Sh.Lal Chand Kapur father of defendant No.1 Sh.K.B.Kapur was the CS(OS) 3438 2014 owner of various lands and houses in Delhi including a house at Darya Ganj. The said Sh.Lal Chand Kapur died intestate. It is stated that after his death the estate of Late Sh.Lal Chand Kapur fell in the hands of his sons namely Sh.K.B.Kapur defendant No.1 and his brother Sh.Parvesh Kapur who became owners to the extent of one half each. The estate held by Sh.K.B.Kapur defendant No.1 is an ancestral property qua the minor plaintiffs the same being purchased from the funds obtained by selling the ancestral property i.e. property of Late Sh.Lal Chand Kapur. It is further pleaded that defendants No.3 and 4 the children of defendant No.1 are the joint owners being coparceners to the extent of 1 4th share each in the estate left behind by Late Sh.Lal Chand Kapur. Therefore the plaintiffs being the children of defendant No.3 Mr.Rishi Kapur it is pleaded by virtue of succession of the coparcenary properties have a share in the properties being held by defendants No.1 to 4 purchased out of the funds obtained by selling the properties of their great grandfather Late Sh.Lal Chand Kapur. It is claimed that the plaintiffs are the co owners in respect of their undivided share in the suit properties to the extent of 1 8 share each. It is further claimed that in the year 1981 82 defendant No.1 sold away the ancestral property at Darya Ganj bearing No.2638 Gali Khajoor Masjid Kucha Chalan Daryaganj Delhi and out of the proceeds bought other properties either in his own name or in the name of his wife comprising of the house being J 5 Ground Floor Saket New Delhi measuring 500 sq.yds Office in Sagar Apartments being 5 B Sagar Apartments 6 Tilak Marg New Delhi one Godown in Mahipalpur iv) One office in East of Kailash a plot of 1100 sq.yds in Gurgaon and there is also one more flat in Gurgaon. It is pleaded that since the CS(OS) 3438 2014 properties received by defendant No.1 attain the characteristic of a caparcenary property once the children namely the plaintiffs were born they became coparceners in the ancestral properties in the hands of defendants No.1 to 4. It is stressed that the said properties were bought by selling the ancestral property at Darya Ganj and throwing the proceeds into a common hotch potch. The suit properties hence acquire a status of an HUF property. Prior to 1956 the great grandfather of the plaintiffs owned the Darya Ganj property. Hence an HUF was existing prior to 1956 and that HUF continued after 1956. In that HUF the grandfather of the plaintiffs namely defendant No.1 inherited the Darya Ganj property after 1956 which was thrown into a common hotch potch. As such the paternal successor in interest of the grandfather of the plaintiffs will have the right upto 3 degrees and as such the plaintiffs have a right in the suit properties. It is admitted that there is a marital dispute between Smt.Shelly Kapur the mother and guardian of the minors through whom the suit has been filed and defendants No.1 to 4. The said Smt.Shelly Kapur has filed a petition under The Protection of Women from Domestic Violence Act 2005 in the court of learned MM Saket where the matter is said to be pending trial. I may also note that defendants No.1 and 2 have also filed a suit against Smt.Shelly Kapur and defendant No.3 for possession permanent injunction and damages regarding the property situated at J 5 Ground Floor Saket New Delhi 110007. Defendants No.1 to 3 have filed their written statement. As far as defendant No. 1 is concerned his right to file written statement was closed on 14.09.2016. They have categorically denied the existence of any HUF CS(OS) 3438 2014 and urged that the suit properties are self earned properties of defendants No.1 and 2 and are not ancestral properties or purchased from the funds by selling the ancestral property. It is stated that the great grandfather of the plaintiffs namely Late Sh.Lal Chand Kapur was survived by two sons namely Sh.K.B.Kapur defendant No.1 and Sh.Parvesh Kumar and five daughters. He was working at a very low scale in the Post Office. Sh.Lal Chand Kapur had taken a loan from private parties for the marriage of his five daughters. To repay the same he sold his Darya Ganj property in the year 1979 80. After the death of Sh.Lal Chand Kapur nothing fell in the hands of Sh.K.B.Kapur defendant No.1 or Sh.Parvesh Kapur. Defendant No.1 shifted with his family to a rented accommodation in Sheikh Sarai New Delhi in the year 1980 81. Thereafter in 1982 he shifted to a rented accommodation in Kailash Colony New Delhi. Both defendants No.1 and 2 were earning. Through her own earnings defendants No.2 purchased a flat in Mandikini from DDA. The said flat was sold and defendant No.2 purchased a floor i.e. first floor in East of Kailash. The said floor was also sold in 2005 and defendant No.2 purchased the present property being J 5 Ground Floor Saket New Delhi 110007 in 2005 and shifted in the same year. Regarding Sagar Apartments office it is stated that the same is a self owned property of defendant No.1 that was purchased in 1990. The Godown in Mahipalpur is a rented property. Regarding the plot of 1100 sq.yds in Gurgaon it is stated that there is no such plot. However there is a plot of 404 sq.yds in Gurgaon which is owned by defendant No.1 and was purchased in the year 2003. Further defendant No.2 also owns a flat in Gurgaon which is again a self earned property of defendant No. 2 which was purchased in 2011. The properties documents have been placed on record. CS(OS) 3438 2014 On 30.03.2016 this court had directed the defendants to maintain status quo with regard to title of the property bearing No. J 5 Ground Floor Saket till the next date of hearing. On 07.12.2017 this court passed the following order: “This suit is filed on behalf of the minor children seeking a decree of partition of properties located at J 5 Ground Floor Saket New DeIhi 110007 and 5 B Sagar Apartment 6 Tilak Marg New Delhi. The plea in the plaint is that a property in Darya Ganj was owned by late Shri Lal Chand Kapur the late grand father of the plaintiffs. This property was said to have been sold out to buy the afore noted two properties. Based on this averment it is urged that the plaintiffs are coparceners in the suit properties. It has been put to the learned counsel for the plaintiffs that the plaint does not prima facie disclose any cause of action. List for framing of issues and arguments as above on Hence the matter was heard at the stage of framing of issues and judgment was reserved. After having reserved the judgment the plaintiffs chose to file an application being IA No.9687 2018 seeking amendment of the plaint. This application was allowed. The matter was re heard again on framing of issues. I have heard learned counsel for the parties. 11. Learned counsel for the plaintiffs has reiterated that the plaintiffs are entitled to 1 8th share in the suit properties owned by their great grandfather Late Sh. Lal Chand Kapur who died intestate. The contentions of the plaint are reiterated. It is reiterated that after passing of the Hindu Succession Act the position has undergone a change and if a person after 1956 inherits a CS(OS) 3438 2014 property from his paternal ancestors the said property is not an HUF property in his hands. However there are two exceptions to this proposition. The first exception is that if a person inherits a property which was HUF even prior to passing of the Hindu Succession Act and which continued to be so even after passing of the Hindu Succession Act. In such a case since the HUF existed continued before and after 1956 the property inherited by a member of an HUF after 1956 would be an HUF property in his hands. The second exception it is pleaded is that if a man owns a self acquired property and throws the same into a common hotch potch then such property or properties thrown into a common hotch potch become a joint family property. In such an eventuality an HUF is formed. It is also strongly urged that defendant No. 2 in her cross examination in the suit that has been filed by defendants No. 1 and 2 which is pending in the district courts has admitted the existence of an HUF family at the time of her father in law and other members and that all of them had contributed to the joint family funds for regular maintenance of the property at Darya Ganj. It is strongly urged that there is a clear averment in the plaint that the properties were thrown into a hotch potch to constitute an HUF. The plaintiffs must be given an opportunity to lead evidence. It is further stated that the pleas of defendant No .1cannot be looked into as his right to file written statement stands closed. 12. Learned counsel for defendants No. 1 to 3 states that the plaint fails to state any cause of action. It is stated that the common ancestor of the defendants and the plaintiffs Late Sh. Lal Chand Kapur died intestate admittedly way prior to commencement of the amendment to the Hindu Succession Act. Unamended Section 6 will govern the situation in the CS(OS) 3438 2014 present case. Section 6 of the Act as it stood prior to the amendment provided that if a male Hindu dies leaving behind a female relative in Class I of the Schedule appended to the Act then his interest in the coparcenery properties will devolve as per the Act and not by survivorship. It is reiterated that the legal position is that if a male Hindu dies intestate with his widow or daughter surviving him his interest in the joint family properties will devolve upon the surviving relatives in Class I of the Schedule. The property so inherited takes the character of a self acquired property and the joint family ceases to exist. It is reiterated that admittedly Late Sh. Lal Chand Kapur the great grandfather of the plaintiffs died in 1984 much prior to the Hindu SuccessionAct 2005. He was survived by five daughters who are Class I heirs under the Schedule to the Act. Therefore by virtue of the legal position the property even it was an HUF at the time of Shri Lal Chand Kapur ceased to be an HUF property. Defendant No. 1 and his siblings and their mother took the property as a separate property. Therefore the plaintiffs or even their father namely defendant No. 3 have no right of partition to the properties held by defendants No. 1 and 2. Reliance is placed on the judgments of the Supreme Court in the case of Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum & Ors. 1978) 3 SCC 383 Uttam vs. Saubhag Singh & Ors. 4 SCC 68 Commission of Wealth Tax Kanpur & Ors. Vs. Chander Sen & Ors. 1986) 3 SCC 567 and Yudhister vs. Ashok Kumar 1 SCC 204. 13. The facts as put forward in the plaint are simple. Late Sh. Lal Chand Kapoor the great grandfather of the plaintiffs is said to have acquired the property in Darya Ganj which is said to be an HUF property. He had two sons namely defendant No. 1 and Sh. Parvesh Kapur and four daughters3438 2014 per the plaint though the defendants state he had five daughters). After the death of Sh. Lal Chand Kapur his estate fell in the hands of his sons namely defendant No. 1 and Sh. Parvesh Kapur who became the owner of their shares to the extent of one half each and such estate was held by defendant No.1 as an HUF. It is urged that the HUF and its properties existed prior to 1956 and they continued after 1956. Further the grandfather of the plaintiffs namely defendant No. 1 inherited the Darya Ganj property after 1956 which was thrown into a common hotch potch. Hence the property retains its ancestral character and the plaintiffs are coparceners in such ancestral property. The plaintiffs by birth have a right in the said property. All the properties which are subject matter of this suit were bought from the sale proceeds of the Darya Ganj HUF property. They have become owners of 1 8th share of the properties being held by defendants No. 1 to 4 is the sum and substance of the plea of the plaintiffs. I may look at the legal position in this regard. I may note that the matter is at the stage of framing of issues. What are the powers of this court at this stage In this context it is settled position of law that CPC does not require all matters to be decided only after trial or unless admissions are made. Issues are to be framed on material proposition of law and facts which the plaintiff alleges in order to show a right to sue or the defendant must allege in order to constitute his defence. Where parties are found not in issue on any question of law or fact Order 15 CPC requires the court to at once pass a judgment. I may in this context refer to a recent judgment of a Coordinate Bench of this court in the case of Promod Kumar Jain & Ors. vs. Ram Kali Jain & Ors. MANU DE 1115 2020 where the court held as follows: CS(OS) 3438 2014 “12. Reference on the aspect of framing of issues can be made a) Precision Steels Vs. Reeta Salwan 205 DLT 695 holding it is not as if the CPC requires all matters to be decided only after trial unless admissions are made issues are to be framed on material propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence where parties are found not in issue on any question of law or fact Order XV requires the Court to at once pass judgment if on a meaningful not formal reading the pleading is found to be manifestly vexations and meritless not disclosing a right to sue or defend and implausible the Court should exercise its powers and should not allow it to create an illusion and such defences should not be needlessly permitted to go to trial and v) mere clever drafting by advocates cannot compel the Courts to put a suit to trial and the Court is entitled to see through and clear the maze sought to be raised and see what the real defence b) Kawal Sachdeva Vs. Madhu Bala Rana 2013 SCC OnLine Del. 1479 holdingthe Court would not frame an issue on a point of law which is perfectly clear if the plea is mala fide or preposterous or vexatious and can be disposed of without going into the facts or is contrary to law or the settled legal position the Court will not be justified in adopting a hands off policy and allow the game of the defendant to have its sway iii) it is a notorious fact that to drag a case a litigant often takes all sorts of false untenable pleas legal process should not be allowed to be misused by such persons and only such defence as give rise to clear and bona fide dispute should be put to trial and not illusory or unnecessary or mala fide based on false or untenable please to delay the suit the Court is not bound to frame an issue on unnecessary or baseless pleas thereby causing unnecessary and avoidable inconvenience to the parties and waste of valuable time in order to frame an issue it is necessary to consider whether the plea raised is bona CS(OS) 3438 2014 take pleas to perpetuate it prompts and to so act mechanically fide or merely raised to delay decision in the matter and which entitles the litigant so raising the plea to remain in possession of the property until adjudication of the issue it is necessary to see whether there is sufficient material placed on record to frame an issue the Court is not under any obligation to frame and remit the issue mechanically merely on the same being raised in the written statement and without judicial satisfaction of its necessity and justification if the Courts unmerited possession when a vague plea is taken the Court should hesitate to frame an issue unless the parties are able to give particulars in support of the plea and if it were that on every plea howsoever vague and to be held unsubstantiated an issue needs to be struck there can be no effective application of Order XII Rule 6 of the CPC. c) Adarsh Kumar Puniyani Vs. Lajwanti Piplani 2015 SCC OnLine Del 14022 in addition holding that in the absence of particulars viz. date mode and terms of creation of tenancy in the pleadings an issue on bare claim of tenancy ought not to have been framed that a bogey of a legal defence should not be permitted to prevail. d) Abbott Healthcare Pvt. Ltd. Vs. Raj Kumar Prasad249 DLT 220 holding that a mere plea of invalidity in the pleading would not be enough to raise an issue of invalidity without satisfying the Court that the said plea is prima facie tenable and for which specific averments will ought to be made in the pleadings. e) Anil Kumar Vs. Devender Kumar 2019 SCC OnLine Del 8782 holding thatframing of omnibus issues with respect to the reliefs claimed is in violation of Order XIV Rule 1(3) of the CPC which requires distinct issues to be framed on each material position affirmed by one party and denied by the other party such omnibus issues do not cull out the material proposition of fact or law on which the parties are at variance CS(OS) 3438 2014 and do not tell the Court the issues on which the right decision of the case depends the stage of framing the issues is an important one as on that day the scope of the trial is determined by laying the path on which trial shall proceed excluding diversions and departures therefrom and at the stage of framing of issue the real dispute between the parties is determined the area of conflict is narrowed and a concave mirror held by the Court reflecting the pleadings of the parties pinpointing into issues and disputes on which the two sides f) Bhavna Khanna Vs. Subir Tara Singh 2019 SCC OnLine Del 6978 holding that what is required to be seen at the stage of framing of issues is whether the pleaded defence of the defendant in law entitles the defendant to defeat the claim of the plaintiff. If it does not it will not constitute a material proposition of fact or law for an issue to be framed thereon. g) Satish Kumar Vs. Purshottam Maheshwari MANU DE 2741 2019 where finding the pleaded defence of the defendant to be barred by law no issue was framed and decree passed immediately.” Hence a boggy of a legal right should not be permitted to prevail. Where from a bare reading of the plaint or written statement right to sue or defend is found to be improbable pleadings are found to be vexatious and meritless not disclosing a right to sue or defend the court should exercise its powers and should not allow such matters to go to trial. I may now look at the legal position regarding HUF properties. Section 6 as it existed prior to the Hindu Succession Act 2005 and Section 8 of the Hindu Succession read as follows: “6. Devolution of interest in coparcenary property.—When a male Hindu dues after the commencement of this Act having at the time of his death an interest in a Mitakshara coparcenary CS(OS) 3438 2014 property his interest in this property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act Provided that if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative the interest of the deceased in the Mitakshra coparcenary property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship.” Explanation 1. For the purpose of this section the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim partition or not. Explanation 2. Nothing contained in this proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.” “8. General rules of succession in the case of males The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter a) firstly upon the heirs being the relatives specified in Class I of the Schedule b) secondly if there is no heir of Class I then upon the heirs being the relatives specified in Class II of the Schedule c) thirdly if there is no heir of any of the two classes then upon the agnates of the deceased and d) lastly if there is no agnate then upon the cognates of the deceased.” 16. Reference may also be had to the judgment of the Supreme Court in CS(OS) 3438 2014 the case of Uttam vs. Saubhag Singh & Ors.(supra) where the Court held as follows: coparcener. Dharma “18. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener and if a son is born to such coparcener thereafter the joint family property continues as such there being no hiatus merely by virtue of the fact there is a Agalawe v. Pandurang Miragu Agalawe2 SCC 126] Sheela Devi v. Lal Chand8 SCC 581] and Rohit Chauhan v. Surinder Singh9 SCC 419 :4 SCC Civ) 377] were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4 8 and 19 of the Hindu Succession Act. The law therefore insofar as it applies to joint family property governed by the Mitakshara School prior to the amendment of 2005 could therefore be summarised as follows: i) When a male Hindu dies after the commencement of the Hindu Succession Act 1956 having at the time of his death an interest in Mitakshara coparcenary property his interest in the property will devolve by survivorship upon the surviving members of the coparcenaryTo propositionan exception is contained in Section 30 Explanation of the Act making it clear that notwithstanding anything contained in the Act the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition. iii) A second exception engrafted on proposition is contained in the proviso to Section 6 which states that if such a male Hindu had died leaving behind a female relative specified CS(OS) 3438 2014 in Class I of the Schedule or a male relative specified in that class who claims through such female relative surviving him then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession and not by survivorship. iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso a partition is effected by operation of law immediately before his death. In this partition all the coparceners and the male Hindu s widow get a share in the joint family property. v) On the application of Section 8 of the Act either by reason of the death of a male Hindu leaving self acquired property or by the application of Section 6 proviso such property would devolve only by intestacy and not survivorship. vi) On a conjoint reading of Sections 4 8 and 19 of the Act after joint family property has been distributed in accordance with Section 8 on principles of intestacy the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.” 17. Reference may again be had to the judgment of a Coordinate Bench of this court in the case of Promod Kumar Jain & Ors. vs. Ram Kali Jain & Ors. where the court held as follows: “13. Reference on the aspect of HUF can be made to: i) Neelam Vs. Sada Ram MANU DE 0322 2013 holding that the Hindu Succession Act 1956 did away with the concept of ancestral properties as existed prior thereto after coming into force thereof the property inherited by a male from his father is held as self acquired property in which children of such male do not acquire any right by birth that the plea of property being a joint family property owing to being jointly owned by CS(OS) 3438 2014 members of a family is not the plea of existence of a coparcenary or HUF that HUF and coparcenary are not one and the same under the Hindu law though for the purposes of taxation under the taxation laws are treated as one and the same that the law of succession after coming into force of the Hindu Succession Act is governed thereby only of course Section 6 thereof carves out an exception qua interest held by the deceased in a Mitakshara coparcenary property and provides that such interest shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act however in the absence of any plea of existence of any coparcenary merely on the plea of the property being of inference of a coparcenary arises for a case for claiming a share in the property otherwise than under the Hindu Succession Act it has to be pleaded that there existed a HUF since prior to the coming into force of the Succession Act and which HUF by virtue of Section 6 of the Act has been permitted to be continued. ii) Surender Kumar Vs. Dhani Ram MANU DE 0126 2016 : AIR 2016 Del 120 holding as under: joint family no “5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax Kanpur v. Chander Sen MANU SC 0265 1986 : 3 SCC 567 held that after passing of the Hindu Succession Act 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees automatically an HUF came into existence no longer remained the legal position in view of Section 8 of the Hindu Succession Act 1956. This judgment of the Supreme Court in the case of Chander Sen was thereafter followed by the Supreme Court in the case of Yudhishter v. Ashok Kumar MANU SC 0525 1986 :1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act 1956 inheritance of ancestral property after 1956 does not create an HUF property and CS(OS) 3438 2014 inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property. 6. In view of the ratios of the judgments in the cases of Chander Sen and Yudhishter in law ancestral property can only become an HUF property if inheritance is before 1956 and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case since an HUF already existed prior to 1956 thereafter since the same HUF with joint Hindu its properties continues family HUF properties continues and only in such a case members of such joint Hindu family are coparceners entitling them to a share in the HUF properties. 7. On the legal position which emerges pre 1956 i.e. before passing of the Hindu Succession Act 1956 and post 1956 i.e. after passing of the Hindu Succession Act 1956 the same has been considered by me recently in the judgment in the case of Sunny v. Sh. Raj Singh CS(OS) No. 431 2006 decided on 17.11.2015. In this judgment I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter and have essentially arrived at the following conclusions: the status of i) If a person dies after passing of the Hindu Succession Act 1956 and there is no HUF existing at the time of the death of such a person inheritance of an immovable property of such a person by his successors in interest is no doubt inheritance of an ancestral property but the inheritance is as a self acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits ancestral property i.e. a property belonging to his paternal ancestor. ii) The only way in which a Hindu Undivided Family joint Hindu family can come into existence after 19563438 2014 to 1956) is if an individual s property is thrown into a common hotchpotch. Also once a property is thrown into a common hotchpotch it is necessary that the exact details of the specific date month year etc. of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides that all necessary factual details of the cause of action must be clearly stated. Thus if an HUF property exists because of its such creation by throwing of self acquired property by a person in the common hotchpotch consequently there is entitlement in coparceners etc to a share in such HUF property. iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956 and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from that status and position paternal ancestors. Once continues even after 1956 of the HUF and of its properties existing a coparcener etc. will have a right to seek partition of the properties. iv) Even before 1956 an HUF can come into existence even without inheritance of ancestral property from paternal ancestors as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956 then in such a case a coparcener etc. of an HUF was entitled to partition of the HUF property. 9. I would like to further note that it is not enough to aver a mantra so to say in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual CS(OS) 3438 2014 references qua each property claimed to be an HUF property as to how the same is an HUF property and in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act 1956 there was a presumption as to the existence of an HUF and its properties but after passing of the Hindu Succession Act 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen and Yudhishter supra) there is no such presumption that inheritance of ancestral property creates an HUF and therefore in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties. 11. I may note that the requirement of pleading in a clear cut manner as to how the HUF and its properties exist i.e. whether because of pre 1956 position or because of the post 1956 position on account of throwing of properties into a common hotchpotch needs to be now mentioned especially after passing of the Benami Transaction Act 1988and which Act states that property in the name of an individual has to be taken as owned by that individual and no claim to such property is maintainable as per Section 4(1) of the Benami Act on the ground that monies have come from the person who claims right in the property though title deeds of the CS(OS) 3438 2014 property are not in the name of such person. An exception is created with respect to provision of Section 4 of the Benami Act by its sub Section which allows existence of the concept of HUF. Once existence of the concept of HUF is an exception to the main provision contained in sub Sections 1) andof Section 4 of the Benami Act then to take the case outside sub Sections and of Section 4 of the Benami Act it has to be specifically pleaded as to how and in what manner an HUF and each specific property claimed as being an HUF property has come into existence as an HUF property. If such specific facts are not pleaded this Court in fact would be negating the mandate of the language contained in sub Sections and of Section 4 of the Benami Act. 12. This Court is flooded with litigations where only self serving averments are made in the plaint of existence of HUF and a person being a coparcener without in any manner pleading therein the requisite legally required factual details as to how HUF came into existence. It is a sine qua non that pleadings must contain all the requisite factual ingredients of a cause of action and once the ratios of the judgments of the Supreme Court in the cases of Chander Sen and Yudhishter come in the pre 1956 position and the post 1956 position has to be made clear and also as to how HUF and its properties came into existence whether before 1956 or after 1956. It is no longer enough to simply state in the plaint after passing of the Hindu Succession Act 1956 that there is a joint Hindu family or an HUF and a person is a coparcener in such an HUF joint Hindu family for such person to claim rights in the properties as a coparcener unless the entire factual details of the cause of action of an HUF and each property as an HUF is pleaded. 13. In view of the above actually the application filed under Order VII Rule 11 CPC in fact is treated as an application under Order XII Rule 6 CPC inasmuch as it is observed on the admitted facts as pleaded in the plaint that no HUF and CS(OS) 3438 2014 late Sh. Jage Ram its properties are found to exist. There is no averment in the plaint that late Sh. Jage Ram inherited property(s) from his paternal ancestors prior to 1956. In such a situation therefore the properties in the hands of late Sh. Jage Ram cannot be HUF properties in his hands because there is no averment of inheriting ancestral property(s) from his paternal ancestors prior to 1956. There is no averment in the plaint also of late Sh. Jage Ram s properties being HUF properties because HUF was created after 1956 by late Sh. Jage Ram by throwing properties into a common hotchpotch. I have already elaborated in detail above as to how an HUF has to be pleaded to exist in the pre 1956 and the post 1956 positions and the necessary averments which had to be made in the present plaint. The suit plaint however grossly lacks the necessary averments as required in law to be made for a complete cause of action to be pleaded for existence of an HUF and its properties." iii) Sagar Gambhir Vs. Sukhdev Singh Gambhir MANU DE 0541 2017 : 241 DLT 98 affirming Surender Kumar supra and as noted in Saurabh Sharma Vs. Om Wati MANU DE 1981 2018. iv) Sangeeta Vs. Ramphool @ Bobby MANU DE 2941 2016 Jagdish Singhal Vs. Ram Bhaj Bansal MANU DE 1139 2017 Sukruti Dugal Vs. Jahnavi Dugal MANU DE 3120 2019 : 264 2019) DLT 182 and Raj Kumar Vs. Ram Bhaj Bansal MANU DE 2601 2019 following the above.” 18. The facts of the present case admittedly are that the great grandfather of the plaintiffs Sh. Lal Chand Kapur passed away in 1984. He was survived by two sons and four daughters who all are Class I heirs in the Schedule to the Hindu Succession Act. Assuming that Late Lal Chand Kapur had an HUF property at Darya Ganj as is being claimedthen Section 6 of the Hindu Succession CS(OS) 3438 2014 Act would have no application. The proviso to Section 6clearly states that where a deceased leaves behind a female relative as specified in Class I of the Schedule such devolution of interest by intestate succession in the hands of the successor as noted above is a self acquired property and is not an HUF property. Hence what defendant No. 1 allegedly inherited from Late Lal Chand Kapur in 1984 in terms of Section 6 of the Hindu Succession Actread with the legal position elaborated above is a self acquired property of defendant No. 1. The plaintiffs cannot claim the same to be an HUF property and claim any rights in the same. 19. Another plea that has been vaguely raised is that after the death of the great grandfather of the plaintiffs Late Sh. Lal Chand Kapur in 1984 what defendant No. 1 inherited from his father Late Sh. Chand Kapur was thrown into the common hotch potch and constituted an HUF property. The plea is vague and unsubstantiated. No material particulars or details are given. 20. What is visible from a perusal of the plaint is that vague and unsubstantiated pleas have been raised which lack material facts and particulars. Sweeping allegations have been made that Late Sh. Lal Chand Kapur the great grandfather of the plaintiffs had a property in Darya Ganj which was an HUF property. On his death defendant No. 1 received 1 2 share in the said estate of Late sh. Lal Chand Kapur which is an HUF property in the hands of defendant No. 1. The plaintiffs on birth had 1 8th share in the said properties. The learned counsel for the plaintiffs clarified that Late Sh. Lal Chand Kapur had thrown the Darya Ganj property into a hotch potch and that is why the said property is an HUF property. It is claimed that all the properties now owned by defendants No. 1 to 4 were purchased out of the funds obtained from selling the said HUF property. It CS(OS) 3438 2014 is claimed that in 1981 1982 defendant No. 1 sold away the HUF property at Darya Ganj and out of the proceeds all other properties were bought by defendant No. 1 in his name or in the name of his wife including the properties at Saket Sagar Apartment East of Kailash Mahipalpur and the property at Gurgaon. 21. The legal position as noted above is quite clear. Under Order 6 Rule 4 CPC there is a legal requirement to provide all necessary factual details of the cause of action which must be clearly stated. Once it is claimed that the property was thrown into a common hotch potch it is necessary that the exact details of the specific date month year etc. of creation of the HUF for the first time by throwing the property into a hotch potch must be clearly pleaded. Averments have also to be made by factual reference to each property claimed to be an HUF property as to how the same is an HUF property. As noted above by a Coordinate bench of this court in the case of Promod Kumar Jain & Ors. vs. Ram Kali Jain & Ors.(supra) there is a known tendency of litigants to include unnecessarily many properties as HUF properties which is done for less than an honest motive. Hence a mere ipse dixit statement in the plaint that an HUF exists and the properties are part of the HUF is not a sufficient compliance of the legal requirements of creation or existence of HUF properties. I may also note that there is no plea in the plaint as to when was the Darya Ganj property sold what was the price at which it was sold when were the other properties bought What was the consideration that defendant No. 1 received on sale of the property is not mentioned. Then it is further claimed that from the sale proceeds of this property the defendants bought the other properties namely J 5 Ground Floor Saket New Delhi CS(OS) 3438 2014 measuring 500 sq.yds Office in Sagar Apartments being 5 B Sagar Apartments 6 Tilak Marg New Delhi one Godown in Mahipalpur iv) One office in East of Kailash a plot of 1100 sq.yds in Gurgaon and vi) one more flat in Gurgaon. Again no details are given when were these properties bought in whose name were these properties bought and how much consideration was paid. The entire pleadings are vague evasive and make belief. Only sweeping and general allegations are made. 23. At this stage I may also deal with another submission made by the learned counsel for the plaintiffs namely that in the cross examination of defendant No. 2 in the suit filed by defendants No. 1 and 2 against the mother of the plaintiffs which is pending in the district court there is an admission that there was an HUF property. I may note that the cross examination is spread over 17 18 pages. No attempt was made by the plaintiffs to highlight that portion of the cross examination which according them contains an admission that an HUF property existed. On the contrary at the end of the cross examination defendant No. 2 has categorically stated that the suit property of that suit i.e. the Saket property is not an ancestral property and the same is a self acquired property purchased from the own earnings and savings of defendant No. 2. 24. One cannot help concluding on seeing the factual background of the case that the present suit has merely been filed as a counter blast to the matrimonial proceedings pending between Ms.Shelly Kapur and defendants No. 1 to 4. The attempt is merely to entangle all the properties of defendants No. 1 to 4 in some way or the other. In my opinion the plaintiffs have failed to show any meaningful cause of action that has arisen in their favour. The plaint fails to disclose a CS(OS) 3438 2014 cause of action and is completely devoid of merits on the face of it. It accordingly is required to be dismissed at this stage. The suit is dismissed. Pending applications also stand dismissed. FEBRUARY 12 2021 rb v J AYANT NATH J CS(OS) 3438 2014

Once an affidavit is filed and the witness is being cross-examined on the same, the Court cannot permit the witness to withdraw his affidavit of evidence: Delhi High Court

Once an affidavit is filed and the witness is being cross-examined on the same, the Court or the authority concerned cannot permit the witness to withdraw his affidavit of evidence in any manner as upheld by the High Court of Delhi through the learned bench led by Justice Prathiba M. Singh in the case of M/S Sharat Dass and Associates v. Rameshwar Singh and Anr (W.P.(C) 12292/2021 and CM APPLs. 38585/2021, 38587/2021). Brief facts of the case are that the present petition challenges the impugned order dated 7th October, 2021, passed by the Authority under the Payment of Gratuity Act, 1972, by which the witness of the Claimant/ Respondent, who was under cross-examination, has been permitted to withdraw his affidavit of evidence, and file a fresh affidavit of evidence. The case of the Petitioner in the present petition is that once the affidavit of evidence was filed by the Claimant/ Respondent’s witness, and the cross-examination was also taking place, such permission and liberty could not have been granted by the Authority under the Act. Mr. Manan, ld. Counsel for the Petitioner, submits that in fact the claim of the Claimant/Respondent was earlier even decreed in his favour of 4 the basis of the said affidavit, which is now sought to be withdrawn, and now a fresh affidavit of evidence has been permitted to be tendered, which is contrary to law. Ms. Richa Sharma, ld. Counsel appearing for the Claimant/ Respondent submits that during cross-examination, some questions were put in respect of certain records and the claimant wished to file certain documents in response to those questions. It is due to the said fact that a further affidavit has been permitted by the Authority under the Act. After the perusal of facts and arguments by the learned counsel, the Hon’ble Court held, “ If in response to any questions put in cross-examination in respect of any documents, the witness wishes to produce any documents, the witness can say so when the cross-examination commences, on the next date of hearing. This Court has perused the cross-examination conducted before the Authority under the Act, which has been filed before this Court. After perusing the same, it is clear that the cross-examination has not concluded, and various questions relating to various records have in fact been put to the Workman. Accordingly, the impugned order is set aside.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 28th October 2021 W.P.(C) 12292 2021 and CM APPLs. 38585 2021 38587 2021 M S SHARAT DASS AND ASSOCIATES ..... Petitioner Through: Mr. Sarthak Manan Mr. Bhumit Solanki Mr. Onkareshwar Kandpal & Mr. Ayush Bhist Advocates. RAMESHWAR SINGH AND ANR ..... Respondents Through: Mr. Manoj Joshi Advocate for R 1. Ms. Richa Sharma present in person. Mr. Shadan Farasat ASC with Ms. Hafsa Advocate for GNCTD. JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.(Oral) This hearing has been done through hybrid mode. The present petition challenges the impugned order dated 7th October 2021 passed by the Authority under the Payment of Gratuity Act 1972 hereinafter “Act”)by which the witness of the Claimant Respondent who was under cross examination has been permitted to withdraw his affidavit of evidence and file a fresh affidavit of evidence. The case of the Petitioner in the present petition is that once the affidavit of evidence was filed by the Claimant Respondent’s witness and the cross examination was also taking place such permission and liberty could not have been granted by the Authority under the Act. 4. Mr. Manan ld. Counsel for the Petitioner submits that in fact the claim of the Claimant Respondent was earlier even decreed in his favour on W.P.(C) 12292 2021 Digitally Signed By:DEVANSHUJOSHISigning Date:30.10.2021 15:22:37 the basis of the said affidavit which is now sought to be withdrawn and now a fresh affidavit of evidence has been permitted to be tendered which is contrary to law. 5. Ms. Richa Sharma ld. Counsel appearing for the Claimant Respondent submits that during cross examination some questions were put in respect of certain records and the claimant wished to file certain documents in response to those questions. It is due to the said fact that a further affidavit has been permitted by the Authority under the Act. Heard ld. Counsel for the parties and perused the record. The impugned order reads as under: “Present Sh. Bhumit Solanki Counsel of respondent filed moved an application Under Section 151 of CPC to take off the record the documents filed by the workman alongwith its Evidence affidavit. The evidence documents alongwith affidavit was supplied by the claimant on 20 02 2020 and the copy of the same was also received physically by the respondent on 20 09 2021. Heard both parties on the application filed today. The application does not carry any merit same is dismissed. The cross examination of the claimant to continue. Cross examination was done and the witness was deferred. The claimant witness withdraws its evidence affidavit and wants to file fresh evidence. The counsel for the respondent objects to the same. In the interest of justice one opportunity is granted to claimant to rely upon relevant documents by filing a fresh affidavit of evidence. Next date fixed for 11 10 2021 at 10:30 As per the above order it is clear that the evidence by way of affidavit filed by the Claimant was on record and the cross examination had commenced. While the cross examination was continuing the Claimant had W.P.(C) 12292 2021 Digitally Signed By:DEVANSHUJOSHISigning Date:30.10.2021 15:22:37 made a statement that he wishes to withdraw the evidence and file a fresh affidavit. The same has been permitted by the Authority under the Act vide the impugned order. In the opinion of this Court this would not be permissible. The Bombay High Court in Banganga Cooperative Housing Society Ltd. and Ors. v. Vasanti Gajanan Nerurkar and Ors. Bom CR813] has categorically held as under: What is not in doubt is that there can never be a withdrawal of an evidence affidavit just as there can never be a withdrawal of an examination in chief conducted directly in Court.” Accordingly once an affidavit is filed and the witness is being cross examined on the same the Court or the authority concerned cannot permit the witness to withdraw his affidavit of evidence in this manner. If in response to any questions put in cross examination in respect of any documents the witness wishes to produce any documents the witness can say so when the cross examination commences on the next date of hearing. directions are issued: 11. Accordingly the impugned order is set aside and the following i) The original affidavit by way of evidence on which the cross examination was taking place shall be brought back on record. ii) The part cross examination already recorded shall also be considered as being part of the record. iii) Further cross examination shall continue on the basis of the old affidavit itself. W.P.(C) 12292 2021 Digitally Signed By:DEVANSHUJOSHISigning Date:30.10.2021 15:22:37 iv) If the witness wishes to rely on any documents in response to any questions put in cross examination he shall say so at the outset on the next date when the cross examination is to recommence. v) The Authority shall consider the said statement of the witness and if the documents are relevant in context of the question asked the said documents shall be taken on record as per law. 12. At this stage Mr. Manan ld. Counsel submits that cross examination was in fact concluded on 7th October 2021 but the Authority has recorded to the contrary that the same was deferred and is to be continued. 13. This Court has perused the cross examination conducted before the Authority under the Act which has been filed before this Court. After perusing the same it is clear that the cross examination has not concluded and various questions relating to various records have in fact been put to the In view of the same the above directions shall be complied with in 15. The present writ petition and all pending applications are disposed of PRATHIBA M. SINGH Workman. accordance with law. in the above terms. OCTOBER 28 2021 W.P.(C) 12292 2021 Digitally Signed By:DEVANSHUJOSHISigning Date:30.10.2021 15:22:37

The market value as determined by the High Court is unsustainable: Supreme Court of India

The market value as determined by the High Court of Allahabad cannot be sustained either on the basis of the sale deeds or on the strength of judicial orders. There was no justification of enhancement of compensation awarded by the Reference Court i.e. Rs.120/- per square yard. This remarkable judgment was passed by the Hon’ble Supreme court in the matter of U.P. AWAS EVAM VIKASH PARISHAD vs. ASHA RAM (D) THR. LRS & ORS. [CIVIL APPEAL NO. 337 OF 2021 (ARISING OUT OF SLP (CIVIL) NO. 4445 OF 2020)] by Justice HEMANT GUPTA, J. This appeal arose from the set of 51 appeals, 38 appeals pertain to land situated at Village Prahlad Garhi; 2 appeals pertain to land situated at Village Jhandapur; 3 appeals pertain to land situated at Village Sahibabad; 2 appeals pertain to land situated at Village Jhandapur/ Sahibabad; 1 appeal pertains to land situated at Village Arthala and 5 appeals pertain to land situated at Village Makanpur, where the present appeals arose out of an order passed by the Division Bench of the High Court of Judicature at Allahabad on 19.07.2019 whereby compensation of Rs. 297/- per square yard was awarded for the land acquired in six villages apart from the statutory benefits. The landowners being aggrieved of the compensation awarded by the Special Land Acquisition Officer sought a Reference for determining the market value where value Rs. 120/- per square yard as the compensation apart from the statutory benefits vide award dated 23.05.2000 was awarded by the learned Additional District Judge. The court opined that “The principles of determining the market value are delineated under Sections 23 and 24 of the LA Act and are well-settled by the plethora of judgments on the said subject matter.” The court referred to its precedents on this act by referring to the case of Gujarat Industrial Development Corpn. v. Narottambhai Morarbhai & Anr., (1996) 11 SCC 159, and held that “the acid test which the court should always adopt in determining the market value in matters of compulsory acquisition is to eschew feats of imagination and sit in the armchair of a prudent willing purchaser”. This court further referred to the judgment of Land Acquisition Officer v. B. Vijender Reddy & Ors., (2001) 10 SCC 669 where it was held that “in fixation of rate of compensation under the Land Acquisition Act, there is always some element of guesswork but that has to spring from the totality of the evidence, the pattern of rate, the pattern of escalation and escalation of price in the years preceding and succeeding the notification under Section 4 of the LA Act.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 337 OF 2021 ARISING OUT OF SLPNO. 4445 OF 2020 U.P. AWAS EVAM VIKASH PARISHAD ASHA RAMTHR. LRS & ORS CIVIL APPEAL NO. 360 OF 2021 ARISING OUT OF SLPNO. 5184 OF 2020 CIVIL APPEAL NO. 340 OF 2021 ARISING OUT OF SLPNO. 4447 OF 2020 CIVIL APPEAL NO. 338 OF 2021 ARISING OUT OF SLPNO. 4444 OF 2020 CIVIL APPEAL NO. 361 OF 2021 ARISING OUT OF SLPNO. 5185 OF 2020 CIVIL APPEAL NO. 362 OF 2021 ARISING OUT OF SLPNO. 5188 OF 2020 CIVIL APPEAL NO. 348 OF 2021 ARISING OUT OF SLPNO. 4685 OF 2020 CIVIL APPEAL NO. 343 OF 2021 ARISING OUT OF SLPNO. 4680 OF 2020 CIVIL APPEAL NO. 382 OF 2021 ARISING OUT OF SLPNO. 5244 OF 2020 CIVIL APPEAL NO. 363 OF 2021 ARISING OUT OF SLPNO. 5190 OF 2020 CIVIL APPEAL NO. 381 OF 2021 ARISING OUT OF SLPNO. 5242 OF 2020 CIVIL APPEAL NO. 339 OF 2021 ARISING OUT OF SLPNO. 4446 OF 2020 CIVIL APPEAL NO. 349 OF 2021 ARISING OUT OF SLPNO. 4686 OF 2020 CIVIL APPEAL NO. 383 OF 2021 ARISING OUT OF SLPNO. 5245 OF 2020 CIVIL APPEAL NO. 350 OF 2021 ARISING OUT OF SLPNO. 4687 OF 2020 CIVIL APPEAL NO. 351 OF 2021 ARISING OUT OF SLPNO. 4688 OF 2020 CIVIL APPEAL NO. 352 OF 2021 ARISING OUT OF SLPNO. 4690 OF 2020 CIVIL APPEAL NO. 384 OF 2021 ARISING OUT OF SLPNO. 5246 OF 2020 CIVIL APPEAL NO. 341 OF 2021 ARISING OUT OF SLPNO. 4448 OF 2020 CIVIL APPEAL NO. 364 OF 2021 ARISING OUT OF SLPNO. 5191 OF 2020 CIVIL APPEAL NO. 353 OF 2021 ARISING OUT OF SLPNO. 4691 OF 2020 CIVIL APPEAL NO. 354 OF 2021 ARISING OUT OF SLPNO. 4692 OF 2020 CIVIL APPEAL NO. 385 OF 2021 ARISING OUT OF SLPNO. 5247 OF 2020 CIVIL APPEAL NO. 357 OF 2021 ARISING OUT OF SLPNO. 4695 OF 2020 CIVIL APPEAL NO. 365 OF 2021 ARISING OUT OF SLPNO. 5192 OF 2020 CIVIL APPEAL NO. 355 OF 2021 ARISING OUT OF SLPNO. 4693 OF 2020 CIVIL APPEAL NO. 366 OF 2021 ARISING OUT OF SLPNO. 5193 OF 2020 CIVIL APPEAL NO. 347 OF 2021 ARISING OUT OF SLPNO. 4684 OF 2020 CIVIL APPEAL NO. 342 OF 2021 ARISING OUT OF SLPNO. 4679 OF 2020 CIVIL APPEAL NO. 367 OF 2021 ARISING OUT OF SLPNO. 5194 OF 2020 CIVIL APPEAL NO. 358 OF 2021 ARISING OUT OF SLPNO. 4696 OF 2020 CIVIL APPEAL NO. 368 OF 2021 ARISING OUT OF SLPNO. 5195 OF 2020 CIVIL APPEAL NO. 356 OF 2021 ARISING OUT OF SLPNO. 4694 OF 2020 CIVIL APPEAL NO. 369 OF 2021 ARISING OUT OF SLPNO. 5197 OF 2020 CIVIL APPEAL NO. 344 OF 2021 ARISING OUT OF SLPNO. 4681 OF 2020 CIVIL APPEAL NO. 370 OF 2021 ARISING OUT OF SLPNO. 5198 OF 2020 CIVIL APPEAL NO. 371 OF 2021 ARISING OUT OF SLPNO. 5230 OF 2020 CIVIL APPEAL NO. 372 OF 2021 ARISING OUT OF SLPNO. 5231 OF 2020 CIVIL APPEAL NO. 373 OF 2021 ARISING OUT OF SLPNO. 5232 OF 2020 CIVIL APPEAL NO. 374 OF 2021 ARISING OUT OF SLPNO. 5233 OF 2020 CIVIL APPEAL NO. 345 OF 2021 ARISING OUT OF SLPNO. 4682 OF 2020 CIVIL APPEAL NO. 386 OF 2021 ARISING OUT OF SLPNO. 5248 OF 2020 CIVIL APPEAL NO. 346 OF 2021 ARISING OUT OF SLPNO. 4683 OF 2020 CIVIL APPEAL NO. 375 OF 2021 ARISING OUT OF SLPNO. 5236 OF 2020 CIVIL APPEAL NO. 376 OF 2021 ARISING OUT OF SLPNO. 5237 OF 2020 CIVIL APPEAL NO. 377 OF 2021 ARISING OUT OF SLPNO. 5238 OF 2020 CIVIL APPEAL NO. 387 OF 2021 ARISING OUT OF SLPNO. 5249 OF 2020 CIVIL APPEAL NO. 359 OF 2021 ARISING OUT OF SLPNO. 4698 OF 2020 CIVIL APPEAL NO. 378 OF 2021 ARISING OUT OF SLPNO. 5239 OF 2020 CIVIL APPEAL NO. 379 OF 2021 ARISING OUT OF SLPNO. 5240 OF 2020 CIVIL APPEAL NO. 380 OF 2021 ARISING OUT OF SLPNO. 5241 OF 2020 JUDGMENT HEMANT GUPTA J The present appeals arise out of an order passed by the Division Bench of the High Court of Judicature at Allahabad on 19.07.2019 whereby a compensation of Rs. 297 per square yard was awarded for the land acquired in six villages apart from the statutory benefits. In the present set of 51 appeals 38 appeals pertain to land situated at Village Prahlad Garhi 2 appeals pertain to land situated at Village Jhandapur 3 appeals pertain to land situated at Village Sahibabad 2 appeals pertain to land situated at Village Jhandapur Sahibabad 1 appeal pertains to land situated at Village Arthala and 5 appeals pertain to land situated at The appellant U.P. Awas Evam Vikas Parishad1 has been constituted under the Uttar Pradesh Awas Evam Vikas Parishad Adhiniyam 19652. A notification was published on 26.06.1982 by the Parishad under Section 28 of the Act intending to acquire 1229.914 acres of land. Subsequently a notification under Section 32 of the Act was published on 28.02.1987 Sections 28 and 32 of the Act are equivalent to Sections 4 and 6 of the Land Acquisition Act 18943 1 For Short the ‘Parishad’ 2For short the ‘Act’ 3 For short the ‘LA Act’ The Special Land Acquisition Officer announced an award on 27.02.1989 awarding compensation of Rs. 50 per square yard in respect of land of all the six villages and compensation of Rs. 35 per square yard was awarded in respect of land owners owning more than 8 acres. The area of the land for which the compensation was awarded in the six villages is Sr. No. Name of Village Mahiuddin Re Kanawani AreaThe remaining area measuring 72.019 acres was the land of the Gram Panchayat or the State Government for which no compensation was awarded by Special Land Acquisition Officer The land owners being aggrieved of the compensation awarded by the Special Land Acquisition Officer sought a Reference for determining the market value. The Learned Additional District Judge while deciding the Reference awarded Rs. 120 per square yard as the compensation apart from the statutory benefits vide award dated 23.05.2000 The landowners as well as the Parishad filed appeals against the decision of the Reference Court. Such appeals were decided separately by the High Court in respect of land acquired by the above stated notification under Section 28 of the Act. The first appeal in U.P. Avas Evam Vikash Parishad v. Jawahar Lal & Ors.4 filed by the Parishad in respect of land situated in Village Prahladgarhi was dismissed on 21.07.2015. The land owners have relied upon the following three sale deeds in appeal before the High Court to claim higher compensation Date of Sale Deed 130 sq. mtr. Village 125 sq. mtr. Village 242 sq. mtr. Village Rs. 150 Rs. 150 Rate per square Rs. 180 The High Court considering the three sale deeds held as under “28. Considering the aforesaid facts and circumstances as also the factum that the court below has already applied deduction of 25% we do not find any fault on the part of Reference Court in determining market value of acquired land at Rs. 120 per sq yard. It can neither be said to be excessive or unreasonable nor it can be said that appropriate principles in determining market value have not been considered by court below. The two judgments cited by appellant do not help it in any manner since the principles laid down therein have already been noticed by court below. In these facts and circumstances in our view the aforesaid point for determination formulated above is answered in favour of respondents and against appellant.” The compensation awarded @ Rs.120 per square yard vide order dated 21.7.2015 attained finality when the Special Leave Petition No 46316through LRs & Ors.) filed by the Parishad was dismissed on 28.03.2016. Another appeal Asha Ram & Anr. v. U.P. Awas Evam Vikash 4 First Appeal No. 505 decided on 21.7.2015 Parishad & Anr.5 arising against the award of the Reference Court dated 23.5.2000 filed by the land owners in respect of land situated in Village Jhandapur was initially dismissed by the High Court on 16.12.2015. The land owners in the appeal relied upon the following sale deeds in support of their contention for determining the market value: RateSale deed 125 sq. yard 150 per sq. yard Sale deed 50 sq. yard 200 per sq. yard Sale deed 60 sq. yard 200 per sq. yard Sale deed 107 sq. yard 200 per sq. yard The sale deeds dated 13.1.1986 and 15.1.1986 were not relied upon by the High Court for the reason that such sale instances were of more than 3½ years after the publication of notification intending to acquire land The High Court found that if the compensation has to be awarded on the basis of sale deeds dated 5.5.1982 and 8.6.1982 the compensation would be lower than what has been awarded by the Reference Court The Court in its order dated 28.10.2015 held as under “13. We find that reliance placed by appellants on the aforesaid sale deeds would not help claimants in any manner. In our view the court below has already been considerate enough in determining market value at Rs. 120 per square yard else the aforesaid two sale deeds if relied would have cause in a lower market value. Before elaborating our aforesaid observation we 5 First Appeal No. 8200 decided on 28.10.2015 find it appropriate to remind ourselves with principles laid down in last several decades on the question how market value of land acquired forcibly under provisions of Act 1894 should be In Asha Ram & Anr. v. U.P. Awas Evam Vikas Parishad & Anr.6 the above order of the High Court was taken as the basis to determine the market value of land acquired in the said appeal. Another appeal by the land owners Asha Ram & Anr. v. U.P. Awas Evam Vikas Parishad Anr.7 was decided on 01.03.2016 relying upon the earlier two orders. The aforesaid orders dated 28.10.2015 16.12.2015 and 1.3.2016 were set aside by this Court on 9.11.2017 and the matters were remanded to the High Court vide the following order Learned counsel for the parties have filed certain documents along with the Special Leave Petitions. The said documents are taken on record particularly the decision of this Court in SLP(C Nos.1506 1517 2016 titled as Pradeep Kapoor vs. State of U.P. documents were not on record before the High Court. They are taken on record. These appeals are remitted back to the High Court for deciding afresh. A prayer is made for consideration of the aforesaid documents. It is open to the parties if they so desire to adduce additional evidence in that event the High Court may ask Reference Court to record additional evidence and to record finding and then High Court may decide the appeals afresh The judgment of the High Court is set aside and the appeals are remitted to the High Court for being decided afresh in accordance The appeals are disposed of accordingly.” The IA to produce additional documents as mentioned in the above 6 First Appeal No. 5501 decided on 16.12.2015 7 First Appeal No. 4101 decided on 1.3.2016 order has been placed along with the written submissions by the land owners before this Court. Apart from the award by the Special Land Acquisition Officer and the order of the Reference Court various other judgments pertaining to different acquisitions were produced The High Court thereafter decided the 53 appeals on 19.07.2019 awarding a sum of Rs. 297 per square yard as compensation for acquiring the land of the six villages as mentioned in the notification. 51 appeals were preferred in respect of acquisition of land by the Parishad and the others are in respect of the acquisition by Ghaziabad Development Authority8. The High Court proceeded as if the notification for the acquisition for the Parishad and GDA is the same and for the same acquisition proceedings. The land acquired by the Parishad vide notification dated 26.06.1982 is the subject matter of the present appeals. It is pertinent to note that the said land is not for the benefit of the GDA. The High Court in the impugned judgment held as under “Accordingly we find that all the appellants in both the sets of first appeals are entitled to compensation at the rate of Rs. 297 per square yard. We have mentioned in detail regarding the other similar cases where compensation has been awarded at the rate of Rs. 297 per square yard even though there were gaps between the different notifications but the villages are same. As discussed above Narendralays emphasis on fair compensation and on parity of compensation in respect of similarly situated land. A careful analysis of the said judgment clearly shows that gaps of a few years in the notifications have been ignored by the Supreme Court and this Court also in the subsequent judgment in First Appeal No. 522 of 2009 Pradeep Kumar v. State of U.P. which has been affirmed by the Supreme Court. We do not find any reason for not awarding compensation 8 For short ‘GDA’ at the same rate. Accordingly the orders of the Reference Court dated 13th April 1998 18th February 2000 23rd May 2000 29th March 2001 and 02nd April 2002 which are under challenge in the respective appeals are set aside. The appellants are entitled to compensation of the land at the rate of Rs. 297 per square yard along with other statutory benefits under the law which shall be calculated and paid to them expeditiously within six months from today.” The High Court referred to the judgment of this Court in Narendra Ors. v. State of Uttar Pradesh & Ors.9 wherein compensation of Rs 297 per square yard was provided in respect of acquisition by the State vide notification dated 12.9.1986 for the land situated in Village Makanpur for planned development of Vaishali. The High Court in a judgment under appeal had restricted the amount of compensation to the amount on which Court fees was affixed. This Court held as under “16) Simply because the appellants had paid court fee on the claim at the rate of Rs.115 square yards could not be the reason to deny the compensation at a higher rate. This could be taken care of by directing the appellants to pay the difference in court fee after calculating the same at the rate of Rs.297 per square In another matter referred by the High Court Pradeep Kumar v State of U.P.10 this Court had remanded the appeals to the High Court on 16.2.2016 as it awarded Rs.135 per square yard as compensation vide its order dated 15.4.2015. The appeals arose out of a notification under Section 4 of the LA Act published on 15.03.1988 for acquisition of land in Village Makanpur for planned industrial development at New 9 Civil Appeal Nos. 10429 104317 decided on 11.09.2017 106 SCC 308 Okhla Industrial Development Authority11 constituted under “The Uttar Pradesh Industrial Area Development Act 1976”. After remand by this Court the High Court on 21.04.2016 awarded Rs. 297 per square yard as the compensation for the land acquired 16. Mr. Mishra learned senior counsel appearing for the Parishad argued that the High Court has ignored the date of notification i.e. 26.6.1982 by which the land in the present matter was acquired. In the matter of Pradeep Kumar the notification was dated 15.03.1988 in respect of land located in village Makanpur at Noida. However in the present matter more than 1000 acres of land situated in five other villages is to be acquired. The land in district Ghaziabad sought to be acquired by the Parishad is on the northern side of the National Highway 24 which passes through Village Makanpur whereas the land on the southern side of National Highway is a part of Noida District Gautam Budh Nagar Noida is a well developed town as compared to the developing town of Ghaziabad situated on the other side of the National Highway. 17. Mr. Gupta on the other hand vehemently argued on behalf of the land owners that the land situated in Village Makanpur was the subject matter of acquisition for Noida as well as GDA apart from the Parishad It was contended that the purpose for which the land is acquired or the authority which acquired the land is inconsequential as the land owners are entitled to compensation irrespective of any such factors. In the written submissions reference has been made to the statement of 11 For short ‘Noida’ Inderraj Singh to submit that at the time of acquisition there were industrial units as well as residential colonies of Vaishali and Kaushambi. Reliance was placed upon finding of the Reference Court which is to the following effect “10. From the above averments it is proved that the position and status of disputed acquired land is of high quality and these lands are of good potential with a view to productivity and other usages and is fit for residential and commercial capacity.” In the written submissions filed on behalf of the land owners two maps have also been referred. First map is of Ghaziabad which is on the northern side of National Highway 24 and the second map is stated to be of an area now covered within the jurisdiction of Noida i.e. in respect of Chalera Banger Bhangel Begampur Nagla Charandas Tilpatabad Kakrana Khawaspur. Such map submitted with the written submissions is not legible. It is submitted that the Village Makanpur is close to Delhi as compared to the above said villages which are now parts of Noida. It has been stated that a compensation of Rs.297 per square yard has been awarded under the notification dated 19.12.1980 for the land situated in Village Makanpur hence the present land owners are also entitled to the same amount of compensation. As per the argument of Mr. Gupta the land acquired is better located than the land which is the subject matter of acquisition for Noida. The distances of the villages presently under the jurisdiction of Noida and Ghaziabad from the borders of Delhi have also been submitted before us. Though such distances are not part of the pleadings or evidence before the Reference Court or the High Court the said table has been reproduced hereunder “There is no dispute that landowners of village across NH 24 ex amples of which were cited before this Court during the course of hearing have all been awarded compensation @ Rs.297 per square yard. The approximate distance to Delhi from the villages involved in the present case and those across NH 24 is as under 24. Matters to be neglected in determining compensation. fifthly any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired sixthly any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put ” A three Judge Bench of this Court12 indicated methods of valuation to be adopted to ascertain the market value of land on the date of the notification under Section 4(1) as:opinion of experts the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages anda number of years purchase of the actual or immediately prospective profits of the lands acquired This Court13 held that the acid test which the court should always adopt in determining the market value in matters of compulsory acquisition is to eschew feats of imagination and sit in the armchair of a prudent willing purchaser. It was held as under “6. No prudent purchaser would purchase large extent of land on the basis of sale of a small extent of land in the open market. The acid test the court should always adopt in determining market value in the matter of compulsory acquisition would be to eschew feats of imagination sit in the armchair of a prudent willing purchaser it should consider whether the willing vendee would offer the rate at which the trial court proposes to determine the compensation. Taking these facts into consideration we are of the view that the reasonable and adequate compensation for the lands would be at a net rate of Rs 22 per sq. mtr. after giving deduction of 1 3rd of the amount towards developmental charges Therefore the claimants would be entitled to the compensation Rs 22 per sq. mtr. They are also entitled to the statutory benefits on the enhanced compensation.” This Court14 has also held that in fixation of rate of compensation under the Land Acquisition Act there is always some element of guesswork but 12 Smt. Tribeni Devi & Ors. v. Collector of Ranchi and Vice Versa 1 SCC 480 13 Gujarat Industrial Development Corpn. v. Narottambhai Morarbhai & Anr. 11 SCC 159 14 Land Acquisition Officer v. B. Vijender Reddy & Ors. 10 SCC 669 that has to spring from the totality of evidence the pattern of rate the pattern of escalation and escalation of price in the years preceding and succeeding the notification under Section 4 of the LA Act. The Court has “13. The first question we proceed to consider is whether the High Court was right to enhance the rate from the rate recorded in Exhibits A 1 and A 2 by Rs 10 000 per acre per year for three years. It is true in the fixation of rate of compensation under the Land Acquisition Act there is always some element of guesswork But that has to be based on some foundation. It must spring from the totality of evidence the pattern of rate the pattern of escalation and escalation of price in the years preceding and succeeding Section 4 notification etc. In other words the guesswork could reasonably be inferable from it. It is always possible to assess the rate within this realm. In the present case we find there are three exemplars i.e. Exhibits A 1 and A 2 which are three years preceding the date of notification and Exhibit A 3 which is of the same point of time when Section 4 notification was Further this Court15 has held that for determining the market value of the land under acquisition suitable adjustments have to be made while considering the various positive and negative factors. The following observations have been made “18. One of the principles for determination of the amount of compensation for acquisition of land would be the willingness of an informed buyer to offer the price therefor. It is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the cases where he is not 19. Market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaffected by the special 15 Viluben Jhalejar Contractorby LRs. v. State of Gujarat 4 SCC 789 needs of a particular purchase. Where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under Section 4(1) or otherwise other sale instances as well as other evidences have to be considered 21. Whereas a smaller plot may be within the reach of many a large block of land will have to be developed preparing a layout plan carving out roads leaving open spaces plotting out smaller plots waiting for purchasers and the hazards of an entrepreneur Such development charges may range between 20% and 50% of the total price.” This Court16 has delineated the following factors responsible for increase in land prices such as situation of the land nature of development in surrounding area availability of land for development in the area and demand for the land in the area. It was held relating the statistics “16. Much more unsafe is the recent trend to determine the market value of acquired lands with reference to future sale transactions or acquisitions. To illustrate if the market value of a land acquired in 1992 has to be determined and if there are no sale transactions acquisitions of 1991 or 1992sales acquisitions in future say of the years 1994 1995 or 1995 1996 are taken as the base price and the market value in 1992 is worked back by making deductions at the rate of 10% to 15% per annum. How far is this safe One of the fundamental principles of valuation is that the transactions subsequent to the acquisition should be ignored for determining the market value of acquired lands as the very acquisition and the consequential development would accelerate the overall development of the surrounding areas resulting in a sudden or steep spurt in the prices. Let us illustrate. Let us assume there was no development activity in a particular area. The appreciation in market price in such area would be slow and minimal. But if some lands in that area are 16 General Manager Oil and Natural Gas Corporation Limited v. Rameshbhai Jivanbhai Patel & Anr. 2008) 14 SCC 745 acquired for a residential commercial industrial layout there will be all round development and improvement in the infrastructure amenities facilities in the next one or two years as a result of which the surrounding lands will become more valuable Even if there is no actual improvement in infrastructure the potential and possibility of improvement on account of the proposed residential commercial industrial layout will result in a higher rate of escalation in prices. As a result if the annual increase in market value was around 10% per annum before the acquisition the annual increase of market value of lands in the areas neighbouring the acquired land will become much more say 20% to 30% or even more on account of the development proposed development. Therefore if the percentage to be added with reference to previous acquisitions sale transactions is 10% per annum the percentage to be deducted to arrive at a market value with reference to future acquisitions sale transactions should not be 10% per annum but much more. The percentage of standard increase becomes unreliable. Courts should therefore avoid determination of market value with reference to subsequent future transactions. Even if it becomes inevitable there should be greater caution in applying the prices fetched for transactions in future. Be that as it may.” The relationship between the market value of land and its potentiality has also been discussed by this Court17 wherein it was observed that “4. … The market value is the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when led out in most advantageous manner excluding any advantage due to carrying out of the scheme for which the property is compulsorily acquired. In considering market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. The guiding star would be the conduct of hypothetical willing vendor who would offer the land and a purchaser in normal human conduct would be willing to buy as a prudent man in normal market conditions but not an anxious dealing at arm s length nor facade of sale nor fictitious sale brought about in quick succession or otherwise to inflate the market value. The determination of market value is the prediction of an economic event viz. a price 17 Atma Singhthrough LRs & Ors. v. State of Haryana & Anr. 2 SCC 568 outcome of hypothetical sale expressed in terms of probabilities… 5. For ascertaining the market value of the land the potentiality of the acquired land should also be taken into consideration Potentiality means capacity or possibility for changing or developing into state of actuality. It is well settled that market value of a property has to be determined having due regard to its existing condition with all its existing advantages and its potential possibility when led out in its most advantageous manner. The question whether a land has potential value or not is primarily one of fact depending upon its condition situation user to which it is put or is reasonably capable of being put and proximity to residential commercial or industrial areas or institutions. The existing amenities like water electricity possibility of their further extension whether near about town is developing or has prospect of development have to be taken into consideration…” In another three Judge Bench of this Court18 the Court held as under “13. One other important factor which also should be borne in mind is that it may not be safe to rely only on an award involving a neighbouring area irrespective of the nature and quality of the land. For determination of market value again the positive and negative factors germane therefor should be taken into consideration as laid down by this Court in Viluben Jhalejar Contractor v. State of Gujarat4 SCC 789] namely:4 sale instances two are almost four years later than the publication of notification under Section 28 of the Act and thus cannot be taken into consideration in terms of the Section 24 of the LA Act. The potentiality of the acquired land is one of the primary factors to be taken into consideration to determine the market value of the land Potentiality refers to the capacity or possibility for changing or developing into the state of actuality. The market value of a property has to be determined while having due regard to its existing conditions with all the existing advantages and its potential possibility when led out in its most advantageous manner. The question whether a land has potential value or not primarily depends upon its condition situation use to which it is put or its reasonable capability of being put and also its proximity to residential commercial or industrial areas institutions. The existing amenities like water electricity as well as the possibility of their further extension for instance whether near about town is developing or has prospects of development have to be taken into consideration. It also depends upon the connectivity and the overall development of the area. The record in the present matter does not suggest that there were large scale development activities. The evidence is rather of sale of small areas. There is nothing on record as to when the industrial units were set up and what was the cost of land. Furthermore there are no sale instances of land situated in Village Makanpur prior to date of notification i.e. 26.6.1982. The sale instances produced by the land owners pertain to Village Sahibabad and Jhandapur which are at a distance of about 3.5 kms from Delhi border. This Court19 while dealing with comparable sale instances has held that “14. Thus comparable sale instances of similar lands in the neighbourhood at or about the date of notification under Section 4(1) of the Act are the best guide for determination of the market value of the land to arrive at a fair estimate of the amount of compensation payable to a landowner. Nevertheless while ascertaining compensation it is the duty of the Court to see that the compensation so determined is just and fair not merely to the individual whose property has been acquired but also to the public which is to pay for it.” The sale instances of a smaller area have to be considered while keeping in view the principle that where a large area is the subject matter of acquisition suitable deduction is required to be made as no prudent purchaser would purchase large extent of land on the basis of sale of a small extent in the open market. The Court thus has to consider whether the willing vendee would offer the rate at which the trial court proposes to determine the compensation. This Court has even provided for 50 deduction for development charges on the price mentioned in the sale The land owners have not produced any other sale deed or award of compensation on account of acquisition of land in the northern side of National Highway 24 prior to notification in question. It could thus lead to an inference that there were not many sale transactions prior to the 19 Mohammad Raofuddin v. Land Acquisition Officer 14 SCC 367 20 Himmat Singh & Ors. v. State of Madhya Pradesh & Anr. 16 SCC 392 notification in question. Some industries might have set up their units keeping in view the proximity to Delhi but details regarding when such units were set up and at what price these units purchased the land have not been brought on record. As mentioned earlier the market value has to be determined on the basis of what a purchaser is willing to pay on the date of notification. It cannot be as per any rule of thumb without any reference to the prevalent market value on the date of acquisition The Reference Court had applied 1 3rd deduction in respect of land situated in Village Sahibabad on the sale price of Rs.180 per square meters of land measuring 130 square meters vide sale deed dated 26.12.1980 whereas the deduction of 40% deduction in respect of land situated in Village Jhandapur on the sale price of Rs.200 per square meters of land measuring 50 square yards vide sale deed dated 5.5.1982 in view of the fact that the area sold was very small. The High Court has affirmed such deduction. Thus we are of the view that the same is reasonable and adequate deduction. Therefore the market value determined at Rs.120 per square yard is the appropriate market value on the basis of comparable sale instances. The other method to determine the market value is the judicial precedents which are proximate to the time of the acquisition and proximate to the subject matter of land acquired. A table of judicial precedents with the dates of publication of notification under Section 28 of the Act and Section 4 of the LA Act the village where the land is situated and the authority for which the land was acquired to arrive at the market value is produced below. Such table includes the judgments referred to by Mr. Gupta that a sum of Rs.297 per square yard is the market value of the land acquired Date of Purpose of UP Awas FA 56 of 2005 decided n per square by the High Rs. 120 per square yard awarded by 297 Makanpur Rs.115 FA No. 522 of Pradeep Kumar v. State of UP Anr. and other decided FA No. 451 of Narendra v State of U.P. Ors.) decided SLP No 2016 4636 of 2015) Earlier Civil Appeal No. 1506 1507 of 2016 Nos. 25237 25248 Pradeep Kumar etc. etc. v. State of U.P. & Anr. allowed 2016) 6 SCC 308 Civil Appeals No 10429 10430 of 2017 preferred by land owners was 11.9.2017 and the compensation was square yards SLP No 5815 of 2015 with connected SLPs filed by GDA 297 t Authority FA No. 910 of 2000 with appeals by the land owners decided per square yard awarded by Rs.297 1983 1986 and 1988 1986 1988 1991 and Rs.297 Rs. 297.50 Rs. 297 were issued in Names of Villages not available from the order but land acquired is said to be situated near to the villages FA no. 41 of Dayal v. State Decided on FA No. 310 of Mohkam Anr. v. State of Decided on Khazan & Ors v. State of U.P decided Singh & Ors. v State of U.P. Decided on FA No. 744 of Chandra and other appeals decided FA 1687 Kareem v. State of UP and other decided Civil Appeal No 169616 Jai Prakash v. State of UP allowed on enhanced to Rs 297 per square Appeal filed by the SLP(C) No. 15867 15883 of 2013 by Noida dismissed on Appeals preferred by Authority in CA No. 1593 1594 of SLP No. 17209 of 2008 NOIDA vs Jagdish Chandra SLPfor the benefit of Noida. This Court in Narendra awarded compensation of Rs.297 per square yard for the land acquired in Village Makanpur in pursuance of the notification under Section 4 of the LA Act published on 12.9.1986No. 4636 of 2016 on 28.3.2016. The compensation assessed in the other aforementioned cases is subsequent to the date of notification therefore none of the orders are determinative of the amount of compensation. Hence the market value as determined by the High Court cannot be sustained either on the basis of the sale deeds or on the strength of judicial orders. There is no justification of enhancement of compensation awarded by the Reference Court i.e. Rs.120 per square yard. Consequently the present appeals are hereby allowed. The order passed by the High Court in the appeals preferred by the land owners is set aside and the compensation awarded by the Reference Court Rs.120 per square yard apart from statutory benefits is restored. UDAY UMESH LALIT S. RAVINDRA BHAT NEW DELHI MARCH 23 2021

“If you are patient in one moment of anger, you will escape hundred days of sorrow”: Bombay High Court

The demon in you may awake for a single moment or then you may have reached that penultimate stage where you can ignore and forgive, this was opined by the court, in the recent matter of Pravin Khimji Chauhan v. The State Of Maharashtra [CRIMINAL APPEAL NO.978 OF 2012], at listed Bombay High Court, Criminal Appellate Jurisdiction. The judgement was pronounced on February 15th 2022, and the said proceedings were presided by a coram comprising of Justice SMT. Sadhana S. Jadhav & Justice Prithviraj K. Chavan. The facts, as presented before the court of law, are as follows. The appellant herein was convicted for the offence punishable under section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and fine of Rs.1,000/- in default to suffer simple imprisonment for 3 months by the learned Sessions Judge. Hence, this appeal. On 24 April 2011 at about 4.00 am, the appellant visited Kalamboli Police Station with blood stained clothes on his person and informed PSI that he suspected the character of his wife. There was a quarrel on that count at about 12.30 midnight, after which he killed her by assaulting her with a knife. First information was recorded in the station diary. The said information was further conveyed to the patrolling officers of the said area. The informant led the police to his house. Upon entering the house they saw the dead body of his wife in a pool of blood. There were injuries all over her body. He went to the Police and divulged the whole episode. Court, after perusal of facts and evidences, opined that “It is rightly said that ‘if you are patient in one moment of anger, you will escape hundred days of sorrow’. Anger is that element of human psychology that may express itself in many ways. The demon in you may awake for a single moment or then you may have reached that penultimate stage where you can ignore and forgive. The statement of the accused recorded by the police would show that he was left with a feeling of mortification. According to him, he was left with a wounded pride, which resulted in the brutal death of his wife.” The court related the case with the principle and held that “Taking into consideration the circumstances in which the incident has occurred, it cannot be said that it is a case of murder but it is a case of culpable homicidal and actual imprisonment for 10 years would meet the ends of justice.” Judgment reviewed by Pranav Sharma

on 15 02 2022 on 15 02 apeal 978.12.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONCRIMINAL APPEAL NO.978 OF 2012Pravin Khimji ChauhanAge 36 years Occupation : Service Residing at “Matoshri” ApartmentRoom No.N.D 104 Plot No.37 Sector 6 Kamotha Colony Tal. Panvel Dist. Raigad OriginallyResident of Damala Tal. Palitana Dist. Bhavnagar Gujarath.(At present in judicial custody and lodgedat Kolhapur Central Prison)…Appellant1. The appellant herein is convicted for the offencepunishable under section 302 of the Indian Penal Code and sentencedpmw on 15 02 2022 on 15 02 apeal 978.12.docto suffer imprisonment for life and fine of Rs.1 000 in default tosuffer simple imprisonment for 3 months by the learned SessionsJudge Raigad Alibaug in Sessions Case No.1011 vide judgmentand order dated 5th April 2012. Hence this appeal.2.Such of the facts that are necessary for the decision of thisappeal are as follows :that hesuspected the character of his wife. There was a quarrel on that countat about 12.30 midnight after which he killed her by assaulting herwith a knife. First information was recorded in the station diary. Thesaid information was further conveyed to the patrolling officers of thesaid area. The informant led the police to his house. Upon entering thehouse they saw the dead body of his wife Renu in a pool of blood.There were injuries all over her body.(ii)On the basis of the said report Crime No. 2211 wasregistered. At the trial the prosecution has examined as many as 11witnesses to bring home the guilt of the accused. The prosecution restspmw on 15 02 2022 on 15 02 apeal 978.12.docupon the statement of the accused recorded by P.W.2 Mr. DattatrayKhade P.W.4 Narayan Air watchman of Matoshri Apartments wherethe accused and the deceased lived in Room No.D 103 P.W5. VinodKoli father of the deceased and P.W.11 Gulabrao Patil InvestigatingOfficer.3.The statement of the accused was recorded by the Police on28th April 2011 to ascertain the background in which the accused hadcommitted the offence. The accused had disclosed as follows :In the year 1999 he got married to one Aruna Khadotra.She was unable to conceive. Upon clinical examination thegynaecologist had opined that Aruna was incapable of becoming amother. Once again the marriage was dissolved before the CastePanchayat. Thereafter he had got married to RenuOn 23rd April 2011 at about 8.00 pm when he wasascending the staircase leading to his house he saw a stranger leavinghis house hurriedly. He inquired with the deceased about the same.She lost her temper and started abusing him and making indecentpmw on 15 02 2022 on 15 02 apeal 978.12.docgestures. She had not cooked food. They had ordered food fromrestaurant. Thereafter they both had consumed alcohol to large extent.She had lost her control and had started babbling and hurling abusesat him at his mother and other family members. She referred to himas a transgender and pimp. He had tried to maintain his mentalbalance since his daughters were present. He then fed his daughtersand put them to sleep.(VI)In the meanwhile Renu had become extremely aggressive.She created a ruckus went into the kitchen and brought a kitchenknife directed towards her husband. She reiterated her slang abuses inreference to his mother and offered him the knife challenging him toshow as to whether he had the courage to assault her. It was at thisjuncture that he lost his mental balance and being totally deprived ofhis self control he mounted assault with the same knife and ventilatedhis anger by stabbing her about 20 to 25 times. He washed the knifeand the blood that had spurted on his face and went into the room toput his children to sleep. He switched on the television to put hischildren to sleep. After the children slept he called upon the father ofRenu. However the call was not replied. He also called upon the eldersister of Renu but there was no response. Finally he called his sisterpmw on 15 02 2022 on 15 02 apeal 978.12.docand informed her about the whole episode. His sister and her husbandvisited the building after an hour but he did not allow them to come tohis house and met them in the premises of the building. Thereafter hewent to the Police and divulged the whole episode.4.P.W.2 Khade is the complainant. He has deposed beforethe Court that the accused had approached the Police Station at about4.00 am in blood stained clothes and admitted his guilt voluntarily.The accused led the police to his house. He then identified the deadbody to be that of his wife. Thereafter the accused led the Police to thehouse of the parents of the deceased at Kamothe. The Police informedthe father in law of the accused about the death of his daughter. Theparents of Renu accompanied the Police to Matoshree Apartment. Theywere in no mood of visiting the Police Station and lodge a report andtherefore P.W.2 lodged the report on behalf of them. He has proved thecontents of the said FIR which is marked at Exh.25. It is categoricallyadmitted in the cross examination that the knife with which theaccused had assaulted his wife was lying on the spot. It is alsoadmitted that the crime was registered on the basis of the disclosurestatement made by the accused. The station diary entry is at Exh.26.pmw on 15 02 2022 on 15 02 apeal 978.12.doc5.P.W.4 Narayan Kumar Navasir Air was working as awatchman in Matoshree Apartment Kamothe for about more than 9months. He was therefore acquainted with the accused and his wife.According to him he was on night duty on the day of incident. Atabout 3.00 am the sister brother in law and paternal aunt of accusedhad visited the building. They expressed their desire to visit the houseof the accused however the aunt of the accused was unable to climbthe staircase and therefore she did not go to his house. The sister andbrother in law had been to the house of the accused however after 10minutes all of them descended the staircase and went outside thebuilding. The accused then requested P.W.4 to open the gate and thenproceeded on his motorcycle wearing blood stained clothes. After halfan hour Police had visited the building. Being the watchman hereiterated the said fact to the Secretary of the building. There is nomaterial omission or contradiction in his depositions.6.P.W.5 Vinod Koli happens to be the father of the deceased.He has admitted that he learnt about the death of his daughter at 4.00am when the Police accompanied by the accused visited his house andpmw on 15 02 2022 on 15 02 apeal 978.12.docinformed him about the same. After post mortem the dead body washanded over to the father of the deceased to perform last rites uponthe deceased. He has admitted that there were disputes between hisdaughter and his son in law.7.P.W.6 Dr. Basavraj Lohare had performed autopsy on thedead body of Renu. He had noticed 26 incised and stab wounds. Thecause of death was “multiple stab injuries with injury to both lungs liver and spleen”. The accused was examined on 24th April 2011 byP.W.6 at about 10.45 am at Rural Hospital Panvel.It is pertinent tonote that the accused had also sustained incised wounds on his righthand palmer aspect ulnar border right hand dorsal aspect over thenareminence and between the web spaces of thumb and index finger. Thesaid certificate is at Exh.36 and the post mortem notes of Renu are atExh.37.8.The learned counsel for the appellant has submitted that infact the act committed by the accused was not premeditated and hewas provoked by his wife and therefore he had lost his self control andamounted assault upon her and the same shall be considered with apmw on 15 02 2022 on 15 02 apeal 978.12.docsympathetic view. It is also submitted that the deceased had pointedthe knife towards the accused in the course of avoiding the attack hehad sustained injuries on his palmer aspect. Therefore it can be saidthat the act was committed in self defence. 9.Per contra the learned APP has submitted that the numberof injuries caused to the deceased by themselves would show thebrutality and the violent mind of the accused who deserves nosympathy. It is submitted that the defence of the accused is anafterthought and requires no consideration. 10.With the help of the learned counsel for the appellant andthe learned APP we have gone through the papers meticulously. Thefirst and foremost observation is that the incident has been brought tolight by none other than the accused himself who had gone to thePolice Station and set the law into motion because the reality wasstaring at his face and he was sure that there was no escape. Theaccused is indeed the author of the 26 injuries caused to Renu. It issurprising that at the trial the accused has pleaded not guilty and hiscontention in his statement under section 313 of Cr.P.C. is that he haspmw on 15 02 2022 on 15 02 apeal 978.12.docbeen falsely implicated. In the facts of the case the said defence wouldrecede into background. It is surprising that the Investigating Agencyhas made no efforts to get the statement of the accused recorded undersection 164 of Cr.P.C. It is also not known as to how the prosecutionhas not recorded the substantive evidence of the sister and brother in law of the accused. In fact the statement made to his sister wouldamount to extra judicial confession and therefore it was necessary toexamine the sister of the accused. The accused had set the law intomotion. It was a case of custodial death. He had even led the Police tothe house of his father in law and had disclosed about the death of hiswife at his hands.11.Now coming to the circumstances in which the incidenthad occurred it would be necessary to see that in fact the marriage ofthe accused as well as the deceased had failed on two occasions beforethey got married to each other. After examining the phone call recordshe had started suspecting the honesty of his wife in their maritalrelationship. At the time of incident the accused as well as thedeceased had consumed alcohol. It is true that the Police has notinvestigated this statement made by the accused as if to say that it waspmw1 on 15 02 2022 on 15 02 apeal 978.12.docan open and shut case. That at the time of incident they werequarreling. The tempers were high. It is the case of the accused thatthe conduct of his wife at the relevant time was beyond reproach.According to him he had maintained his cool for quite sometime.However he lost it when she brought the knife from the kitchen andprovoked him to hurt her if he could. Probably the chauvinism in himhas arisen. She had expressed disgust and abhorrence at his verymanliness and had forgotten for a moment that he is a father of theirtwo daughters.12.It is rightly said that “if you are patient in one moment ofanger you will escape hundred days of sorrow”. Anger is that elementof human psychology that may express itself in many ways. The demonin you may awake for a single moment or then you may have reachedthat penultimate stage where you can ignore and forgive. Thestatement of the accused recorded by the police would show that hewas left with a feeling of mortification. According to him he was leftwith a wounded pride which resulted in the brutal death of his wife. 13.At the same time it is necessary to consider the submissionpmw1 on 15 02 2022 on 15 02 apeal 978.12.docof the learned APP. The number of injuries inflicted on the deceasedwere as many as 26 blows. In every alternative case where we aredealing with a murder of the wife at the hands of her husband in amoment of grave and sudden provocation by the wife the husbandviolently attacks his wife. There is physical violence there is sexualviolence however this sort of physical violence is less seen amongstwomen even in a moment of anger and in all probabilities it is themother in a woman which supersedes her element of physical violence.There could be psychological violence by women. In the present case in that moment of anger both the spouses had almost forgotten thetwo children who were hardly three year and 1½ year old at the timeof incident. The mother died and the father was thrown to the gallowsby his own act.14The Indian Penal Code would define such an act in thegiven circumstances not as murder but as culpable homicide notamounting to murder. The offence was committed in a heat of passionbut the accused had acted in a cruel and unusual manner. 15The statement of the accused given to the Police beforepmw1 on 15 02 2022 on 15 02 apeal 978.12.docregistration of crime inspires the confidence of the Court and thecircumstances spelt out by him in which the incident has occurredneeds to be taken into consideration. 16Section 304 part I of the Indian Penal Code reads asunder :304. Punishment for culpable homicide not amounting tomurder.—Whoever commits culpable homicide notamounting to murder shall be punished with1[imprisonment for life] or imprisonment of eitherdescription for a term which may extend to ten years andshall also be liable to fine if the act by which the death iscaused is done with the intention of causing death or ofcausing such bodily injury as is likely to cause death orwith imprisonment of either description for a term whichmay extend to ten years or with fine or with both if theact is done with the knowledge that it is likely to causedeath but without any intention to cause death or to causesuch bodily injury as is likely to cause death.17The fact that the accused has sustained incised injury onhis right palmer aspect would show that he had indeed held the knifon the sharper side when there was an attempt to attack him. Adefence injury cannot be ruled out.pmw1 on 15 02 2022 on 15 02 apeal 978.12.doc18The conduct of the accused also needs to be appreciatedunder section 8 of the Indian Evidence Act. He had made no attemptto cause disappearance of evidence. He had called upon the father andsister of the deceased. He has also called upon his aunt sister andbrother in law and admitted the guilt before he approached the policestation. 19Taking into consideration the circumstances in which theincident has occurred it cannot be said that it is a case of murder but itis a case of culpable homicidal and actual imprisonment for 10 yearswould meet the ends of justice. Hence we pass the following order: ORDER(i)The Appeal is partly allowedof the Indian Penal Code and is sentenced tosuffer Rigourous Imprisonment for 10 years. Fine ismaintained.(iv)The appellant is entitled to set off for the period alreadyundergone(SMT. SADHANA S. JADHAV J)pmw1

Non-examination of any independent witness results in impairing the credibility of the prosecution side: Delhi High Court

Non-examination of any independent witness culminated in hampering the credibility on the behalf of prosecution side. In a criminal suit filed under section 374 (2) read with section 383 of Criminal Procedure Code, 1973. The case involved a matter subjected to be heard as per 392, 394 & 34 of India Penal Code, 1860. The same was held in the matters of Sonu v. The State (Government of NCT), Delhi [CRL.A. 633/2020] on September 6th, 2021. Moreover, the bench was presided by a single judge bench, consisting of Justice Manoj Kumar Ohri. The facts of the case are as follows. The complainant, Sunil, filed an FIR with the police on the following facts. One night while he was returning home, Sonu along with his 3 accomplices came and put knife to Sunil’s waist and demanded money and as a result they stole his belongings through coercive use of force. Further, Sunil was also given death threats, if he had told anything about the incident to anyone or any authority. However, without having second thoughts, Sunil went to the police station to lodge a complaint under the above mentioned legislations. Further on investigation, the facts were proven and the statements were recorded from both the side. At the time of cross-examination, in the trial court, discrepancies on the subject matter of the incident were seen and thereby, a dispute arose as to what constitute facts that can be taken as valid evidences. Due to the lack of clarity from the trial court judgment, the aggrieved party filed the case to the Delhi Court upon the same lines. The learned counsel in the submission said that there existed material contradiction in the present case as to the place of the incident as both the FIR and the witnesses show two distinct places of incident. Various cases like Dudh Nath Pandey v. State of Uttar Pradesh, [(1981) 2 SCC 166], State of U.P. v. Babu Ram,  [(2000) 4 SCC 515], Munshi Prasad and Others v. State of Bihar, [(2002) 1 SCC 351] etc. were re-examined. The court in its decision held that “it was imperative for the prosecution to cite independent public witnesses but none was produced. It is also worthwhile to note that evidence in the present case is replete with CRL.A. 633/2020 Page 10 of 10 statements that public persons were present at the time of incident and also at the time of arrest. However, for both occasions, no public witness has been cited. In fact, the first information about the quarrel was given by a third person from mobile number 9213970007, which resulted in recording of DD No. 69B. In the entire evidence, there is not even a whisper of any efforts having been made to trace the caller.”

IN THE HIGH COURT OF DELHI AT NEW DELHI IN THE MATTER OF: CRL.A. 633 2020 Reserved on: Date of Decision: 06.09.2021 13.08.2021 ..... Appellant Through: Mr. S.S. Ahluwalia Advocate DHCLSC) alongwith Mr. Mohit Bangwal Advocate. THE STATEDELHI Respondent Through: Mr. Sanjeev Sabharwal APP for State with SI Deepak P.S. Mukherjee Nagar. HON BLE MR. JUSTICE MANOJ KUMAR OHRI MANOJ KUMAR OHRI J. The present appeal has been preferred under Section 374(2) read with Section 383 Cr.P.C. on behalf of the appellant challenging the judgment on conviction dated 09.08.2019 and the order on sentence dated 09.08.2019 passed by the learned Additional Sessions Judge 05 North District) Rohini Courts Delhi in SC No. 58477 2016 arising out of FIR No. 605 2015 registered under Sections 392 394 34 IPC at Police Station Mukherjee Nagar Delhi whereby the appellant was convicted for the offences punishable under Section 392 IPC read with Section 397 IPC and sentenced to undergo Rigorous Imprisonment for a period of 07 years along with fine of Rs.1 000 in default whereof to undergo Simple Imprisonment for a period of one month. CRL.A. 633 2020 For the sake of felicity the facts of the case as noted by the Trial Court are extracted hereunder: “1. Prosecution case in brief is that on 01.05.2015 a PCR call was received in Police Station Mukherjee Nagar vide DD No. 69 B. After receipt of call SI Manzoor Alam along with staff reached at H. No. 33 1 Indira Vikas Colony Delhi where the complainant Sunil got recorded his statement that he was going towards his home after meeting his friend. When he reached in front of H. No. 22 7 Indira Vikas Colony Delhi suddenly one Sonu S o Nanak Chand who earlier used to reside in Munshi Ram Dairy came along with three persons and pointed a knife at his waist and demanded money. When the complainant objected this Sonu slapped him. His three accomplices caught hold of the complainant and Sonu took out Rs.1000 from his pocket and said that if the complainant told anything to anyone he would kill him. On the complaint of the complainant the above case was registered and investigation was taken up. 2. During investigation the accused was searched at H. No. 118 Jhuggi Munshi Ram Dairy Delhi but he was not found there. It was transpired that the accused and his family had vacated the house and were living somewhere else. The accused and his accomplices were searched but could not be 3. On 05.05.2015 the complainant came to PS and stated that he had seen accused Sonu along with some of his friends sitting at Yograj Colony Bus Stand. The said facts were brought into the notice of SHO who prepared a raiding team to arrest the accused. A raid was conducted on the instance of complainant and accused Sonu was arrested in the case. During the search of accused one knife was also recovered and the same was identified by the complainant. The recovered knife was seized vide seizure memo Ex.PW2 C and deposited in Malkhana. During his interrogation accused CRL.A. 633 2020 Sonu stated that he along with his three accomplices robbed the complainant. He further stated that he did not know the address of the accomplices namely Raju Monu and Sunil but he could get arrest the accomplices. One day PC remand of the accused was obtained and search of other co accused was made but the accused Sonu did not cooperate in the investigation and the co accused persons could not be arrested. After one day PC remand accused was sent to JC”. After completion of investigation a charge sheet was filed and the appellant was charged under Sections 392 34 IPC read with Section 397 IPC by the Trial Court. The appellant pleaded not guilty and claimed 4. While arguing the present appeal learned counsel for the appellant has assailed the conclusions arrived at in the impugned judgment by contending that: there are contradictions in proving of the place of incident by the prosecution as to whether it occurred near 22 7 Indira Vikas Colony or at 33 1 Gurdwara Wali Gali no public witness present at the time of arrest of the appellant was made to join the proceedings the knife recovered during apprehension of the appellant could not be connected with him as no fingerprints were taken and the Trial Court did not consider the testimony of DW 1 Raju Paswan @ Pannu Chai Wala who had stated that he had seen a quarrel take place between the appellant and one boy whom he could not name but no incident of robbery or snatching had taken place in that quarrel. Learned APP for the State on the other hand has supported the impugned judgment. He has submitted that the appellant was already known to the complainant. It is also submitted that besides the present case the appellant has other previous involvements. CRL.A. 633 2020 I have heard learned counsels for the parties and gone through the Trial Court Record. A perusal of the record would show that Sunil the complainant deposed in his testimony that on 01.05.2015 when he was coming back from the house of his friend the appellant along with his three associates met him. The appellant put a knife on the waist of the complainant and demanded money. When the complainant refused the appellant slapped him. While the associates of the appellant caught hold of the complainant the appellant took out Rs.1 000 from the complainant’s pocket and extended threats to him thereafter. The complainant further deposed that the site plan was prepared at his instance. On 05.05.2015 he is stated to have spotted the appellant with some boys at Yograj Colony Bus Stand wherefore he informed the police and the police personnel approached the Bus Stand along with him. On seeing the police party the appellant is stated to have tried fleeing away but he was apprehended after a chase. The other associates of the appellant however managed to escape. In the appellant’s personal search a knife was recovered and it was identified by the complainant as the same knife which was used at the time of the incident. The complainant has identified his signatures on the sketch of the knife Ex.PW2 B) as well as on the seizure memo vide which recovery of the knife was effected. On being confronted with the site plan during his cross examination the complainant stated that he was unable to understand it and that the police officials had not asked him anything regarding preparation of the site plan. He stated that on 05.05.2015 at about 4:00 p.m. he saw the appellant at the Bus Stand of Yograj Colony. He CRL.A. 633 2020 admitted that Yograj Colony Bus Stand was a highly inhabited area. He admitted that he was aware of the address of the appellant who was an erstwhile classmate and that he had told the Investigating Officer about it. He denied the suggestion that he had falsely implicated the appellant at the behest of Nitin with whom the appellant had a quarrel. He also denied that he had an altercation with the appellant on the issue of driving motorcycle when the appellant was living at Village Gopalpur Delhi. He stated that the distance between Yograj Colony and Police Station Mukherjee Nagar could be covered on foot in 25 30 minutes. SI Manzoor Alam the Investigating Officer was examined as PW 6. He deposed that on receipt of DD No. 69B he had reached the spot i.e. 33 1 Gurdwara Wali Gali Indira Vikas Colony Mukherjee Nagar and recorded the statement of the complainant. On 05.05.2015 the complainant had come to the Police Station Mukherjee Nagar and informed him that the appellant was present with his associates at the Bus Stand of Yograj Colony. He along with Ct. Madan Ct. Narender and the complainant had gone to the Bus Stand Yograj Colony. Some passers by were requested to join the investigation but they refused. On the identification of the complainant the appellant was apprehended after a chase and from the right side pocket of his jeans pant a knife was recovered. In cross examination he stated that on 05.05.2015 complainant had come to the Police Station at about 7:00 p.m. and after about 30 minutes from his arrival they had left the Police Station. HC Madan who had joined the proceedings with the Investigating Officer on 05.05.2015 was examined as PW 4. His testimony is cumulative to the testimony of SI Manzoor Alam. CRL.A. 633 2020 10. Ct. Rahul deposed that he along with the Investigating Officer had gone to search for the appellant in Munshi Ram Colony Delhi but there they came to know that the appellant had already vacated his Jhuggi. In cross examination he stated that when he reached the spot on the day of the incident there were many persons present. He stated that there was a five minute walking distance between the Police Station and the spot of incident. 11. The statement of the appellant was recorded under Section 313 Cr.P.C. wherein he stated that on the day of the incident he had an altercation with the complainant who was an employee of one Nitin a supplier of water gallons and the testimony of the Investigating Officer mentions the place of incident as 33 1 Gurudwara Wali Gali Indira Vikas Colony Mukherjee Nagar however on the other hand the Rukka and the site plan mention the place of incident as “mark A” at 22 7 Indira Vikas Colony. In the site plan no mention has been made of 33 1 Gurudwara Wali Gali Indira Vikas Colony. In fact HC Madan has deposed that the appellant had pointed out the place of incident in front of 22 7 Indira Vikas Colony. Making matters worse the complainant had stated that the site plan was not prepared at his instance while SI Manzoor Alam deposed that the site plan was prepared at the instance of the complainant. 15. There also appears to be greater inconsistency on the point of arrest of the appellant. While the complainant deposed that on 05.05.2015 after seeing the appellant at Yograj Colony Bus Stand at about 4:00 p.m. he had reached the Police Station in an auto rickshaw and the police personnel immediately accompanied him to the Bus Stand the Investigating Officer testified that the complainant had reached Police Station Mukherjee Nagar at about 7:00 p.m. on the said date. He further stated that they had left the Police Station after 30 minutes from the arrival of the complainant. He also stated that the distance between CRL.A. 633 2020 the Yograj Colony and the Police Station was about 6 7 kms and it took them 10 15 minutes to reach. The aforesaid two testimonies are in clear contrast to each other and when looked at in light of the testimonies given by the appellant and his brother that the appellant was arrested from his house it seems highly improbable that the appellant continued to remain at the Bus Stand for more than 3 and ½ hours or that it took the complainant about 3 hours to reach the Police Station. In this regard it may also be noted that the Supreme Court in Dudh Nath Pandey v. State of Uttar Pradesh reported as 2 SCC 166 opined that Courts should avoid the error of attributing motives to defence witnesses merely because they are examined by the defence. Defence witnesses are entitled to equal treatment with those of the prosecution and Courts ought to overcome their traditional instinctive disbelief in defence witnesses. To a similar extent in State of U.P. v. Babu Ram reported as 4 SCC 515 the Supreme Court has observed as under: “23. Depositions of witnesses whether they are examined on the prosecution side or defence side or as court witnesses are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses.” 17. Later in Munshi Prasad and Others v. State of Bihar reported as 2002) 1 SCC 351 the Supreme Court made the following observation on the appreciation of evidence of defence witnesses: “3. …we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed to be a tainted CRL.A. 633 2020 one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution a lapse on the part of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutors witnesses.” In the present case the Trial Court has brushed aside the evidence of defence witnesses as one coming from interested witnesses. In view of the inconsistency noted above in the events leading to the appellant’s arrest it is equally probable that the appellant was arrested from his house and not in the manner stated by the prosecution. It is an admitted fact that both the complainant and the appellant were known to each other being erstwhile classmates. The appellant from the inception has taken the consistent defence of false implication at the instance of one Nitin and also on account of previous quarrel between him and the complainant. The Trial Court incorrectly reached the conclusion that the appellant had taken contradictory defences in the trial. In opining so the Trial Court noted that while cross examining the complainant no suggestion was given on behalf of the appellant that the altercation with Nitin had taken place in a Gulli Danda match. The Trial Court failed to appreciate that the suggestion of an altercation with Nitin was duly given and only the word ‘Gulli Danda match’ was not mentioned which was clarified by the appellant in his statement recorded under Section 313 Cr.P.C. In light of the above analysis it was imperative for the prosecution to cite independent public witnesses but none was produced. It is also worthwhile to note that evidence in the present case is replete with CRL.A. 633 2020 statements that public persons were present at the time of incident and also at the time of arrest. However for both occasions no public witness has been cited. In fact the first information about the quarrel was given by a third person from mobile number 9213970007 which resulted in recording of DD No. 69B. In the entire evidence there is not even a whisper of any efforts having been made to trace the caller. He could have been cited as an independent witness. In the facts of the case the deposition of such independent witness would have lent a much needed corroboration to the prosecution case and assured fairness in the conduct of the Investigating Officer. The non examination of any independent witness has seriously impaired the credibility of the prosecution case. 21. On a conspectus of the entire evidence brought on record and as analyzed hereinabove this Court is of the opinion that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. 22. Consequently the impugned judgment on conviction and order on sentence are set aside. The appeal is allowed and the appellant is acquitted of the charges framed against him. He is directed to be set free unless required in any other case. 23. A copy of this judgment be communicated electronically to the Trial Court as well as to the concerned Jail Superintendent forthwith. SEPTEMBER 6 2021 MANOJ KUMAR OHRI) JUDGE CRL.A. 633 2020

Every offence punishable under Sikkim Anti Drugs Act, 2006 shall be cognizable: High Court of Sikkim

There were reasonable grounds for believing that he was not guilty of such offence and that he won’t commit any offence while on bail. Such was held by The Hon’ble High Court of Sikkim before The Hon’ble Mr. Justice Bhaskar Raj Pradhan in the matter of Pratik Biswakarma Vs. State of Sikkim [BA No. 12 of 2021].  The facts of the case were associated with an application filed under Section 439 of the Code of Criminal Procedure, 1973. It was reported that the applicant Pratik Biswakarma was arrested because of an FIR, as controllable substances were found in the vehicle where he and five others travelled. It was stated by the applicant that five bail appeals were rejected by the Special Judge on various grounds. The Counsel representing the applicant stated that the applicant was a young man of 23 years and thereby should be granted bail. The Public Prosecutor stated that no materials were found that would prove his innocence. The prosecution against the applicant was under section 9(1) (c) and 9(4) of Sikkim Anti Drugs Act, 2006 and section 34 of the Indian Penal Code, 1860. The Prosecutor was against the bail and filed a reply for the same. The PP stated that the applicant cannot be granted any bail unless there were reasonable grounds for believing that he was not guilty of such an offence and that the Court was satisfied with the same.  After considering all the submissions, The Hon’ble Court stated that “This court has examined the records of the case and it is of the firm view that there are no reasonable grounds for believing that the applicant is not guilty of such offence and that he is not likely to commit any offence while on bail. The application for bail is accordingly rejected.”

THE HIGH COURT OF SIKKIM: GANGTOK Criminal Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Bail Application No. 121 Pratik Biswakarma S o Nar Bahadur Biswakarma R o Zoom Daragoan West Sikkim Presently at judicial custody in Boomtar Jail. Namchi South Sikkim. ….. Applicant State of Sikkim ….. Respondent Application under Section 439 of the Code of Criminal Procedure 1973. Ms. Tashi Doma Bhutia Advocate for the Applicant. Mr. Sudesh Joshi Public Prosecutor with Mr. Sujan the State Sunwar Assistant Public Prosecutor Date of hearing : 23.10.2021. ORDERBhaskar Raj Pradhan J. Pratik Biswakarma has moved this application for bail under Section 439 of the Code of Criminal Procedure 1973. He was arrested on 18.02.2021 in connection with the First Information Report lodged on 18.02.2021 after the seizure Bail Application No. 121 Pratik Biswakarma vs. State of Sikkim of controlled substances from the vehicle in which he and five others were travelling. According to the applicant he had applied for bail before the learned Special Judge on five occasions which have all been rejected on various grounds. 2. Ms. Tashi Doma Bhutia learned counsel for the applicant submits that besides the FIR he has not been implicated by any of the materials or statements filed along with the charge sheet. It is submitted that he has no past criminal record he is a young man of 23 years and therefore he should be granted bail. The learned Public Prosecutor however opposes the grant of bail on the ground that there is no material to reflect that he is not guilty of the offence. The prosecution against the applicant is under section 9(1) c) and 9(4) of Sikkim Anti Drugs Act 2006 read with section 34 of the Indian Penal Code 1860Notwithstanding anything contained in the Code of Criminal Procedure 1973 a) every offence punishable under this Act shall be cognizable b) no person accused of an offence punishable under this Act shall be released on bail or on his own bond unless i) the Public Prosecutor has been heard and also given an opportunity to oppose the application for such release and ii) where the Public Prosecutor opposes the application the court is satisfied that there are reasonable grounds for believing that he is not Bail Application No. 121 Pratik Biswakarma vs. State of Sikkim guilty of such offence and that he is not likely to commit any offence while on bail. 2) The limitations on granting of bail specified in clause of sub section are in addition to the limitations under the Code of Criminal Procedure 1973 or any other law for the time being in force on granting of bail.” The learned Public Prosecutor opposes the bail application and has also filed a reply in opposition dated 08.10.2021. Under section 18(1) of the SADA where the learned Public Prosecutor opposes the application for bail the person accused of an offence punishable under the act cannot be released on bail until the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. This court has examined the records of the case and it is of the firm view that there are no reasonable grounds for believing that the applicant is not guilty of such offence and that he is not likely to commit any offence while on bail. The application for bail is accordingly rejected. Bhaskar Raj Pradhan ) Judge Approved for reporting: Yes No :Yes No Internet

Police protection granted to the victim in the case of Dowry demand, Torture and Warning of Dire Consequences: High Court of Patna

The petitioner was alleged of torture and dowry demand from the opposite party. the court on previous orders directed the petitioner to keep the lady with dignity and security. The contentions were made that the petitioner demanded dowry and warned of dire consequences on such failure. The matter was heard and pre-arrest bail was granted. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Ram Kumar v. The State of Bihar[Criminal Miscellaneous No. 78962 of 2019]. The facts of the case were that the Petitioner was apprehended arrest in connection with Complaint Case, instituted under Sections 498-A/34 of the Indian Penal Code and 4 of the Dowry Prohibition Act, 1961. The petitioner is the husband of the opposite party has been accused of demanding dowry and committing mental and physical torture. The Learned Counsel for Petitioner submitted that as per the previous orders given by the courts in a case, Court had directed to keep the informant with full dignity, honor, and security. The Counsel for the Opposite party submitted that the previous day they communicated about threatening and warning for dire consequences. The Learned Additional Public Prosecutor submitted that he had no other instructions to give to the superintendent to look into the matter and follow the guidelines provided in the previous case hearing. The Court was surprised at such a stand of him. The Hon’ble High Court of Patna held after considering all facts and considerations, allowed the grant of pre-arrest bail. The court added,”… the petitioner shall give an undertaking before the Court that he shall keep the opposite party no. 2 with fully dignity, honor and security and shall take care of all her needs and that she would be free to talk and to and meet anybody she desires, without any let or hindrance, either from the petitioner or his family members. Any violation of the terms and conditions of the bonds or undertaking and failure to cooperate shall lead to cancellation of his bail bonds.” Police protection was also provided to the opposite party.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.789619 Arising Out of PS. Case No. 1926 Year 2017 Thana VAISALI COMPLAINT CASE District Vaishali Ram Kumar @ Ram Kumar Giri aged about 36 years Male son of Muneshwar Giri resident of village Jogia Math P.S. Samastipur Muffasil Distt Samastipur ... Petitioner s The State of Bihar 2. Archana Kumari aged about 30 years Female daughter of Ram Nihora Puri resident of village Mahathi Dharmchand P.S. Tisiauta Distt ... Opposite Party s For the Petitioner s For the State For the OP No. 2 CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Mr. Surya Narayan Roy Advocate Mr. Gauri Shankar Gupta APP Mr. Amit Kumar Rakesh Advocate Date : 22 06 2021 The matter has been heard via video conferencing. 2. Heard Mr. Surya Narayan Roy learned counsel for the petitioner Mr. Gauri Shankar Gupta learned Additional Public Prosecutorfor the State and Mr. Amit Kumar Rakesh learned counsel for the opposite party no. 2. 3. The petitioner apprehends arrest in connection with Complaint Case No. 19217 dated 02.08.2017 instituted under Sections 498 A 34 of the Indian Penal Code and 4 of the Dowry Prohibition Act 1961. Patna High Court CR. MISC. No.789619 dt.22 06 2021 4. The petitioner who is the husband of the opposite party no. 2 along with other family members is accused of demanding dowry and committing mental and physical torture to her. 5. Learned counsel for the petitioner submitted that pursuant to the earlier orders the opposite party no. 2 is now living in the matrimonial home with him for over six months. It was submitted that earlier the Court had directed the petitioner to keep the opposite party no. 2 with full dignity honour and security and to take care of all her needs which he is doing. It was submitted that the opposite party no. 2 has not made any complaint before any authority that she is not being treated 6. Learned APP submitted that the allegation is of demand of rupees five lakhs as dowry 7. Learned counsel for the opposite party no. 2 submitted that as per his telephonic instructions yesterday the opposite party no. 2 has communicated that the attitude of the petitioner and his family members has not changed and that the petitioner is also threatening her with dire consequences. 8. At this juncture when the Court put a query to learned counsel for the opposite party no. 2 as to how such stand Patna High Court CR. MISC. No.789619 dt.22 06 2021 has been taken when the Court in its order dated 09.02.2021 had directed the Superintendent of Police Samastipur to instruct a senior lady Police Officer of the local Police Station to visit the house of the petitioner and provide her mobile contact number to the opposite party no. 2 who was given liberty to call her in case of any emergency and the Superintendent of Police Samastipur was required to direct the concerned Police Station and the lady Police Officer to promptly respond to any such call by the opposite party no. 2 whether in terms thereof she has made any complaint either to the Superintendent of Police Samastipur or the local Police Station or to the concerned lady Police Officer learned counsel submitted that no such complaint has been made. The Court is surprised at such stand taken before the Court on behalf of the opposite party no. 2 when already adequate protection and mechanism has been provided by the Court for protection of the opposite party no. 2 in order dated 09.02.2021. 9. Again on a further query of the Court to learned counsel for the opposite party no. 2 to take a categorical stand in the present matter he submitted that the opposite party no. 2 has expressed her desire to live in the matrimonial home. 10. At this juncture when the Court called upon the Patna High Court CR. MISC. No.789619 dt.22 06 2021 learned APP to inform as to whether the directions to the Superintendent of Police Samastipur in order dated 09.02.2021 have been complied with learned APP submitted that he has no 11. The Court is surprised at such stand of learned APP. However be that as it may having considered the matter in totality in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 with two sureties of the like amount each to the satisfaction of the learned SDJM Vaishali at Hajipur in Complaint Case No. C 19217 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioner that the petitioner and the bailors shall execute bond with regard to good behaviour of the petitioner that the petitioner shall cooperate with the Court andthe petitioner shall give an undertaking before the Court that he shall keep the opposite party no. 2 with fully dignity honour and security and shall take care of all her needs and that she would be free to talk and to and meet anybody she desires without any let or hindrance either from the petitioner or his Patna High Court CR. MISC. No.789619 dt.22 06 2021 family members. Any violation of the terms and conditions of the bonds or undertaking and failure to cooperate shall lead to cancellation of his bail bonds 12. It shall be open for the opposite party no. 2 or her guardian to bring to the notice of the Court concerned any violation of the terms and conditions or the undertaking or otherwise if she feels harassed or threatened in any manner. If such a petition is filed the Court below shall immediately take up and consider the matter and pass appropriate orders after hearing the petitioner. 13. Further the direction issued to the Superintendent of Police Samastipur in order dated 09.02.2021 at paragraph no. 6 is reiterated. He shall instruct a senior lady Police Officer of the local Police Station to visit the house of the petitioner and provide her mobile contact number to the opposite party no. 2 who will be at liberty to call her in case of any emergency. The Superintendent of Police shall direct the concerned Police Station and the lady Police Officer to promptly respond to any such call by the opposite party no. 2. 14. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner to the notice of the Court concerned which shall take Patna High Court CR. MISC. No.789619 dt.22 06 2021 immediate action on the same after giving opportunity of hearing to the petitioner 15. Registry shall communicate the order to the Superintendent of Police Samastipur who shall act in terms of the directions issued immediately 16. The application stands disposed off in the (Ahsanuddin Amanullah J J. Alam

Guest lecturer has the right against being replaced with another guest lecturer unless there are complaints regarding performance: High Court of Chhattisgarh

Guest lecturers may not be permanent employees but they still have certain right by law. The state cannot replace a guest lecturer with another guest lecturer unless there are complaints regarding their performance or competence. This was held in the case of Kanchan Gupta v State of Chhattisgarh & others [Writ Petition (S) No. 3568 of 2021] by a single member bench of the High Court of Chhattisgarh consisting of Justice P. Sam Koshy on the 14th of July 2021. The petitioner, Kanchan Gupta was working as a guest lecturer for the Government Rani Durgawati College Wadrafnagar in Chhatisgarh through the academic year 2020-21. In the present writ petition, she prays that the respondents should not be permitted to replace the petitioner with another set of contractual guest lecturers. It was further contended that the petitioner has undergone a due process of selection before being appointed as a guest lecturer and furthermore that there was never at any point any complaint about the petitioner’s performance or competence. The state counsel opposed the petition stating that the petitioner filed the present writ petition only on apprehension and that since there was no cause of action, the matter was premature and deserved to be rejected. The petitioner cited the very similar case of Manju Gupta & others v State of Chhattisgarh & others [WPS No. 4406/2016], where it was held that a guest lecturer working under a government institution was granted protection from being replaced by another guest lecturer. The High Court in that case stated that “It is directed that the Respondents would not be entitled for filling up the posts of Guest Lecturer by replacing the Petitioners unless the Respondents come up with a stand that the services of the Petitioners were dis-satisfactory. The quashment of the advertisement issued by the Respondents would also not come in the way of the Respondents for filling up of the sanctioned vacant posts by regular recruitment or by way of contractual appointment for which the Respondents shall be free”.

1 HIGH COURT OF CHHATTISGARH AT BILASPUR Writ PetitionNo. 35621 1. Kanchan Gupta D o. Naresh Prasad Aged About 25 Years Working As Guest FacultyAt Govt. Rani Durgavati College Wadrafnagar District Balrampur RamanujganjDistrict : Raipur Chhattisgarh 2. Additional Director Directorate Of Higher Education Department Atal Nagar Naya Raipur District Raipur District : Raipur 3. Principal Govt. Rani Durgawati College Wadrafnagar District Balrampur RamanujganjDistrict : Balrampur Chhattisgarh Respondents Shri Govind Dewangan Advocate. Shri Ishan Verma Panel Lawyer Hon ble Shri Justice P. Sam Koshy Order on Board 1. The grievance of the petitioner in the present writ petition is that since the petitioner was working as a Guest Lecturer under the respondent No.3 for the academic session 2020 21 the respondents should not be permitted to replace the petitioner by another set of contractual Guest Lecturers 2. The contention of the petitioner is that the petitioner has undergone a due process of selection for being appointed as a Guest Lecturer and that the services of the petitioner also was satisfactory as there is no complaint whatsoever so far as the competency of the petitioner is concerned. It is further the contention of the petitioner that now that the academic session is over the respondents should not be permitted to go in for a fresh recruitment process for filling up of the posts of Guest Lecturers under the respondent No.3 for the subject in which the petitioner was taking classes 3. Counsel for the petitioner relies upon the judgment of this Court passed in the case of “Manju Gupta & others v. State of Chhattisgarh & others” WPS No. 4406 2016 decided on 27.02.2017 whereby the similarly placed Guest Lecturers under the Directorhave been granted protection from being replaced by another set of Guest Lecturers 2 4. The State counsel opposing the petition submits that it is a case where no cause of action has till date arisen in as much as the petitioner has filed the writ petition only on apprehension and since there is no cause of action the matter is premature and deserves to be rejected 5. Having heard the contentions put forth on either side and on perusal of record what is admitted is that the petitioner was appointed vide Annexure P 1. The order of appointment specifically had a clause mentioning that the appointment so made are till an alternative arrangement is made by way of regular recruitment contractual transfer 6. Further from the records it also does not appear that the performance of the petitioner at any point of time was found to be unsatisfactory. In the case of “Manju Gupta”this Court in paragraphs No. 8 to 11 has held as under: “8. True it is that the Petitioners status is that of a Guest Lecturer but that does not mean that they do not have any right. There is always a legitimate expectation of the Petitioners that since the filling up of the posts has not been initiated by way of a regular appointment or by contractual appointments the Petitioners would be permitted to continue 9. The undisputed fact is that the Petitioners were given appointment only on undertaking given by them pursuant to an advertisement by the Respondents. In the undertaking which was made to be furnished by the Petitioners they were made to undertake that their appointment would be till the posts are filled up by regular contractual appointment This by itself clearly gives an indication that unless the Respondents fill up the sanctioned vacant posts by either regular recruitment or by way of contractual appointment the Petitioners would continue as Guest Lecturers. On the practical aspect also the fact that the Petitioners are discharging the duties of Guest Lecturers for last more than 1 2 years itself is a good ground for permitting the Petitioners to continue on the said posts as Guest Lecturers simply for the reason of their experience on the said post as fresh recruitment would mean that persons with no or less experience would be participating in the recruitment process which also would not be in the interest of the students who are undertaking training in the respective institutions 10. Taking into consideration the decision of the Supreme Court in the case of Piara Singh and which has been further reiterated in the case of Dr. Chanchal Goyalthis Court has no hesitation in reaching to the conclusion that the advertisement so issued by the Respondents is definitely not in the interest of the students undertaking training at Industrial Training Institute Ambikapur and the same would amount to violation of Article 21 of the Constitution of India and the same therefore 3 deserves to be and is accordingly quashed. The advertisement would be deemed to be quashed only to the extent of the recruitment against the posts at which the Petitioners are discharging. That is to say the Respondents would be entitled to fill up the posts which are lying vacant by way of Guest Lecturers where there are no Guest Lecturers 11. It is directed that the Respondents would not be entitled for filling up the posts of Guest Lecturer by replacing the Petitioners unless the Respondents come up with a stand that the services of the Petitioners were dis satisfactory. The qaushment of the advertisement issued by the Respondents would also not come in the way of the Respondents for filling up of the sanctioned vacant posts by regular recruitment or by way of contractual appointment for which the Respondents shall be free.” 7. This Court under the given circumstances is inclined to accept the same analogy in the case of the petitioner also and accordingly it is ordered that unless there is any complaint received against the performance of the petitioner the respondents are restrained from going in for any fresh recruitment of a Guest Lecturer for the said subject under the respondent No.3 college against which the petitioner was engaged 8. It is however made clear that the protection to the petitioner would be only to the extent of not being replaced by another set of Guest Lecturers. This would not preclude the State Government from going in for filling up of the post by way of a regular appointment or by way of engaging contractual teachers under the rules for contractual employment 9. So far as the claim of remuneration as per the guidelines of the UGC is concerned it would be open for the petitioner to make a suitable representation before the respondent No.1 in this regard who in turn would take a policy decision so far as the remuneration part payable to the Guest Lecturers keeping in view of the guidelines that have been laid 10. With the aforesaid observations the present writ petition stands disposed down by the UGC P. Sam Koshy

Goodwill, misinterpretation and damage to be established in a trademark infringement case: Delhi High Court

Actions of infringement of trademark have a public interest element of protecting customers at large from the possibility of confusion. The Supreme Court bench consisting of J. Rajiv Sahai Endlaw decided upon the criteria to determine trademark infringement in the case of Roland Corporation v. Sandeep Jain & Ors. [CS (COMM) 565/2018 & CC (COMM) No. 6/2018]. The plaintiff is a company incorporated in Japan in1972 and is the registered proprietor of various trademarks including BOSS, RODGERS, RSS, EDIROL and ROLAND. The trademark BOSS had been registered in favour of the plaintiff in India, in Class 9 and 15, with effect from 2nd July, 2004. The plaintiff through Rivera Digitec (India) Pvt. Ltd., their distributor, has been importing products bearing the trademark BOSS to India since 1993 and have acquired an excellent reputation for the same. The defendant Hi Tone Electronics, of which Sandeep Jain is the proprietor and Janata Electronics the retailer, is engaged in similar business under the trademark of BOSS and also exporting under the trademark of Hi Tone BOSS (registered under Class 9). The plaintiff instituted a suit against the defendants in the year 2007 to restrain them by way of permanent injunction from passing off their goods as that of the plaintiffs by using the trademark BOSS or Hi Tone BOSS and for ancillary reliefs. Relief was granted to which the defendants contested by filing a written statement along with a counter0claim, pleading that that the trademark was being used by the defendants and registered well before the plaintiffs started using it and that the defendant was not trying to ride on the goodwill of the plaintiff. A counter claim was again filed by the plaintiffs to the same. The HC relied on Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Limited [(2018) 2 SCC 1], wherein it was observed that “(a) to prove and establish an action of passing off, three ingredients are required to be proved by the plaintiff, i.e., his goodwill, misrepresentation by the defendant and damage; (b) the test, of whether a foreign claimant may succeed in a passing-off action, is whether his business has a goodwill in a particular jurisdiction, which criterion is broader than the “obsolete test” of whether a claimant has a business/place of business in that jurisdiction; if there are customers for the plaintiff’s products in that jurisdiction, then the plaintiff stands in the same position as a domestic trader; (c) the overwhelming judicial and academic opinion all over the globe, therefore, seems to be in favour of the territoriality principle which should apply to this country also; (d) to give effect to the territoriality principle, the Courts must necessarily have to determine if there has been a spillover of the reputation and goodwill of the mark used by the claimant who has brought the passing off action; and, (e) if goodwill or reputation in the particular jurisdiction i.e. in India is not established by the plaintiff, no other issue really would need any further examination to determine the extent of the plaintiff’s right in the action of passing off”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 6th January 2021. CS(COMM) 565 2018 & CCNO.6 2018 ROLAND CORPORATION ..... Plaintiff Through: Mr. Pravin Anand Mr. Shrawan Chopra Mr. Vibhav Mithal Mr. Bobby Jain and Mr. Souradeep Mukhopadhyay Advs. SANDEEP JAIN & ORS. ..... Defendants Through: Mr. Neel Mason Mr. Vihan Dang and Mr. Shivang Sharma Advs. HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW The plaintiff in the year 2007 instituted this suit to restrain Sandeep Jain Proprietor Hi Tone Electronics Hi Tone Electronics and c) Janata Electronics by way of permanent injunction from passing off their goods as that of the plaintiffs by using the trade mark BOSS or Hi Tone BOSS and for ancillary reliefs. It is the case of the plaintiff that the plaintiff is a company incorporated in Japan in the year 1972 engaged in manufacturing marketing and exporting electronic musical instruments electronic equipment and software and is a world leader in design manufacture and distribution of electronic musical instruments including keyboards and synthesizers guitar products electronic percussion kits digital recording equipment amplifiers and audio processing devices the plaintiff is the registered proprietor of various trade marks including BOSS RODGERS CS(COMM) 565 2018 & CC No.6 2018 RSS EDIROL and ROLAND in respect of electronic equipments the trade mark BOSS is used in respect of compact effect pedals twin effect pedals multi effect pedals acoustic processors metronomes tuners rhythm machines sound recording equipment and also accessories and is recognized across the world as a hallmark in musical equipment the BOSS mark was first used in June 1976 in respect of Chorus Ensemble products in Japan and was adopted to connote “lead role” the trade mark BOSS has been registered in favour of the plaintiff in India in Classes 9 and 15 with effect from 2nd July 2004 Rivera Digitec Pvt. Ltd. was established in Mumbai as exclusive distributor of products of the plaintiff to serve the Indian music industry by making available to them the musical instruments under the brands Roland BOSS and Edirol the plaintiffs through their distributor have been importing products bearing the mark BOSS in India since 1993 and have acquired an excellent reputation by continuous import and sale of BOSS products the sales in India of goods bearing the mark BOSS have risen from Rs.68 68 330 in 2002 2003 to Rs.96 79 190 in 2006 2007 the defendant no.2 Hi Tone Electronics of which defendant no.1 Sandeep Jain is the proprietor and defendant no.3 Janata Electronics is retailer is engaged in the business of manufacturing and marketing musical instruments such as amplifiers microphones speakers stereos mixers and cassette players under the trade mark BOSS and also exporting products under the mark Hi Tone BOSS the defendant no.2 on its website www.hitoneelectronics.com advertises products under the trade mark BOSS the defendants have also registered the trade mark BOSS in India in Class 9 the manner of use and of the trade mark BOSS by the defendant is the same as that of the trade CS(COMM) 565 2018 & CC No.6 2018 mark of the plaintiff the defendants have dishonestly adopted the trade mark and trade dress of the plaintiff and at the time when the defendants registered the trade mark the plaintiff’s products were already well known under the said trade mark. The suit accompanied with an application for ex parte ad interim relief came up first before this Court on 23rd April 2007 when though summons of the suit and notice of the application were ordered to be issued no ex parte relief claimed granted. The defendant no.2 has contested the suit by filing written statement and also filed a Counter Claim pleading that the defendant no.2 a partnership concern adopted the trade mark BOSS in relation to public address amplifiers echo and reverb amplifiers microphones speakers disco lights and sound invertors and other similar products way back on 15th January 1979 and have been using the trade mark BOSS continuously and extensively since then the trade mark BOSS was adopted since the defendant no.2 was the first entity in India to start manufacturing echo reverb amplifiers disco lights sound invertors the defendant no.2 commissioned an artist Mr. Kedar Nath of Lalit Kala Kuteer for designing and stylizing the representation of the trade mark BOSS that the alphabet ‘B’ in the word BOSS was stylized to look like a chair of the boss v) the defendant no.2 in the year 1999 participated in India Tech 1999 Exhibition in Nigeria and has also exported its products to Syria Bangladesh Dubai Sri Lanka Yemen Ethiopia Uganda and Kenya the sales of the defendant have multiplied from Rs.19 786.78 paise as on 31st March 1979 to Rs.2 61 31 241 as on 31st March 2007 the CS(COMM) 565 2018 & CC No.6 2018 defendant no.2 on 14th August 1985 applied for registration of the trade mark BOSS in Class 9 in respect of public address amplifiers echo amplifiers reverb amplifiers microphones speakers disco lights and sound invertors the said registration was granted on 29th November 1991 and is existing till date the said registration has not been challenged by any person the plaintiff has acquiesced the use by the defendant by not opposing the registration the registration claimed by the plaintiff is of a word mark and not of a logo the plaintiff did not have any reputation in India on 15th January 1979 when the trade mark BOSS was adopted by the defendant and according to the plaintiff also the goods of the plaintiff became available in India first in the year 1993 only the plaintiff must have been aware of use of the trade mark BOSS by the defendant for long xiii) that the plaintiff’s claim of having adopted the mark BOSS in 1976 is denied BOSS is a common dictionary word and used by several entities and the bona fides of the defendant are evident from the use of the trade mark BOSS by the defendant in conjunction with Hi Tone in the manner of “Hi Tone BOSS” making it clear that the defendant is not attempting to ride on the goodwill of the plaintiff or any other person. On the said pleas the defendant no.2 in its Counter Claim against the plaintiff seeks permanent injunction restraining the plaintiff from using the trade mark BOSS in relation to electronic musical equipment and ancillary Vide order dated 27th August 2018 the name of the defendant no.1 Sandeep Jain was ordered to be deleted from the array of defendants. CS(COMM) 565 2018 & CC No.6 2018 No written statement is found to have been filed by the defendant no.3 Janata Electronics and there is no order recording service of summons of the suit on the defendant no.3 Janata Electronics and no order proceeding ex parte against the defendant no.3 the defendant no.3 Janata Electronics is now deleted from array of defendants leaving Hi Tone Electronics as the sole defendant to the suit. Though the plaintiff filed replication to the written statement of defendant no.2 and written statement to the Counter Claim of the defendant no.2 Hi Tone Electronics and defendants filed replication thereto but the need to refer thereto is not felt. On the pleadings in the suit and the counter claim the following issues were framed on 16th January 2009: “1. Whether the suit has been signed verified and instituted by a duly authorized person on behalf of plaintiff OPP Whether the plaintiff is the proprietor of the BOSS trademark OPP acquiescence OPD India OPD Whether the plaintiff is guilty of delay latches and Whether the defendant is the prior user of the trademark in terms of statutory is barred acquiescence in terms of Section 33 of the Trade Marks Act 1999 the suit Whether the defendants have passed off their products as those originating from the plaintiff OPP Whether the adoption of the BOSS trademark by the Defendants is dishonest OPP Whether the defendants’ adoption of the BOSS trademark is honest and concurrent OPD CS(COMM) 565 2018 & CC No.6 2018 Whether the plaintiff had a reputation in India at the time of adoption of the defendants adoption of the trademark OPP AND “1. Whether the counter claimant is the proprietor of the trademark BOSS in India OPCC Whether the counterclaim is liable to be rejected under the provisions of Order VII Rule 11(d) of the Code of Civil Procedure in view of Section 28(3) of t he Trade Marks Act 1999 OPD Whether the counter claimant has a reputation in relation to the BOSS trademark OPCC Whether the use of the trademark BOSS by the counter claimant will amount to passing off OPD Whether the defendant is the prior user of the trademark BOSS OPD Whether the adoption of the trademark BOSS and the logo by the counter claimant is dishonest OPD Whether the counter claimant is the owner of copyright in the stylized manner of representation of HiTone OPCC Whether the manner of adoption by the counter claimant amounts to infringement of copyright in the stylized manner of representation OPD and the parties relegated to evidence. 10. No order is found to have been made on the application of the plaintiff for interim relief. 11. On 24th November 2015 the counsels for the parties informed that recording of evidence stood concluded. The suit and the Counter Claim were accordingly directed to be listed in the category of ‘Finals’. The plaintiff applied under Order XV A of the CPC read with Commercial CS(COMM) 565 2018 & CC No.6 2018 Courts Act 2015 and the suit and the Counter Claim vide order dated 25th April 2017 were ordered to be listed for final hearing in the category of ‘After Notice Miscellaneous Matters’. 12. Vide order dated 15th January 2019 on the application of the plaintiff under Order XV A the time for making arguments in the suit was limited. 13. On 12th September 2019 inter alia the following order was passed: The counsel for the plaintiff has sought to demonstrate similarity between the products of the plaintiff and the defendants. At this stage the counsel for the defendants are interrupted and stated that the defendants are now no longer using the said mark for Guitar Pedal Effects as was being done earlier and are now using the mark only with respect to Public Address Systems and have no intention to use the mark for any other goods. On enquiry as to what all falls in Public Address System the counsel for the defendants has shown its catalogue and has handed over a copy thereof to the counsel for the plaintiff and states that the defendants will in future also use the subject mark only with respect to the goods as shown in the said catalogue and not for other goods. On enquiry it is stated that though the Guitar Pedal Effects may fall in Class 9 itself in which Public Address System fall but the musical instruments with respect whereto the plaintiff is also using the mark fall in Class 15. The counsel for the plaintiff states that he will study the catalogue handed over today in the Court to verify whether the plaintiff has any objection to use by the defendants of the subject mark with respect to the goods as shown in the said catalogue. The counsel for the defendants has also stated that the defendants are willing to make a statement that the defendants will use the prefix ‘Hi Tone’ along with the mark ‘BOSS’ in the manner as shown in the catalogue and will obtain instructions whether the CS(COMM) 565 2018 & CC No.6 2018 defendants are open to change the font of the alphabet “B” in the word ‘BOSS’. The counsel for the defendants to inform the counsel for the plaintiff in this respect within one week and if workable also share the font in which the alphabet ‘B’ is intended to be used in the word ‘BOSS’ in future. It is made clear that the aforesaid is only for the purpose of injunction and the aforesaid will not affect the claim if any of the plaintiff for damages for use by the defendants of the subject mark for other goods as the defendants were earlier using. List on 11th October 2019.” 14. However no settlement was arrived at between the parties and the counsels were heard further on 11th October 2019 and 14th October 2019. Though the order judgment was expected to be dictated in Chamber on the same day and was indeed dictated but the draft of the order judgment remained in the files for correction and went on the back burner. The counsel for the plaintiff mentioned the matter to the Court Master before the Winter Break of the year 2020 and now this judgment after making corrections is being listed for pronouncement. 15. The counsel for the plaintiff has referred to: i) Neon Laboratories Ltd. Vs. Medical Technologies Ltd.2 SCC 672 holding that it would not be unfair or fanciful to favour the view that the defendant appellant’s delayed use was to exploit the niche already created and built up by the plaintiff respondent and that the ‘first in the market’ test has always enjoyed pre eminence CS(COMM) 565 2018 & CC No.6 2018 ii) Milmet Oftho Industries Vs. Allergan Inc.12 SCC 624 holding in the context of trade mark with respect to medicines that if a mark in respect of a drug is associated with the plaintiff worldwide it would lead to an anomalous situation if an identical mark in respect of a similar drug is allowed to be sold in India and that the mere fact that the plaintiff respondent had not been using the mark in India would be irrelevant if they were the first in the world market iii) Staples Incorporation Vs. Staples Paper Converters Pvt. Ltd. 2014 SCC OnLine Del 2092 where I have held that though injunction in N.R. Dongre Vs. Whirlpool Corporation 5 SCC 714 may have been granted on the premise of trans border reputation in India but the injunction in Milmet Oftho Industries supra was de hors the same and merely on the test of who is first in the world market and granting interim injunction on the said premise alone iv) Prius Auto Industries Ltd. Vs. Toyota Jidosha Kabushiki Kaisha236 DLT 343holding that post the internet era the law of trans border reputation has expanded because the internet virtually broke the domestic walls in areas of trade and business and that on the internet through search engines one can access information put up on the website be it by the manufacturer of the goods or in e journals and e magazines. v) Suzuki Motor Vs. SuzukiLtd. 2019PTC 227holding that it is natural for the parties who have copied the trade mark of another to try and explain their conduct and derivation of words so adopted copied that if the trade mark has element of CS(COMM) 565 2018 & CC No.6 2018 prior continuous use and has been copied no amount of explanation even if it is plausible is capable of defending infringement of the trade mark and that mere concurrent user is not sufficient in law it must be honest. In that case injunction was granted in spite of use by the defendant therein since 1982 finding dishonesty in vi) William Grant & Sons Ltd. Vs. McDowell & Company Ltd. 1994DRJ 105 where finding the defendant to have taken all the features of the label of the plaintiff it was held to be deliberate and it was further held that what is deliberate copying cannot but be 16. The counsel for the plaintiff has contended that the DW 1 Arun Jain examined by the plaintiff has not been able to prove that the font and style of the mark BOSS used by the defendant was designed by him. It is contended that the plaintiff having proved its prior use of the mark there is no possibility of the plaintiff having copied from the defendant and that the explanation put forth by the defendant of the defendant’s marks being of the same font and style as the plaintiff’s is improbable. It is further argued that the defendant being in the same trade since 1950 is bound to have had knowledge of mark of the plaintiff. Attention is invited to registrations in favour of the plaintiff of the mark BOSS and logo in respect of electronic musical instruments and parts and fittings therefor granted on 9th April 1976 in Australia. It is further contended that the mark used by the defendant is an exact copy of the logo of the plaintiff. It is also stated that CS(COMM) 565 2018 & CC No.6 2018 the dimensions of the mark of the defendant are identical to that of the 17. Per contra the counsel for the defendant has argued that in an action for passing off the plaintiff is required to prove goodwill and reputation in the relevant territory. It is contended that it is the pleaded case of the plaintiff that the plaintiff started business in India for the first time in the year 1993 and thus the question of the mark of the plaintiff having goodwill and reputation in India prior thereto does not arise and the defendant has been able to prove use of the mark in India since the year 1979. Reliance is placed on Toyota Jidosha Kabushiki Kaisha Vs. Prius Auto Industries Limited2 SCC 1 and Vishnudas Trading as Vishnudas Kishendas Vs. Vazir Sultan Tobacco Co. Ltd. Hyderabad4 SCC 201. It was clarified that the injunction claimed by the defendant in the counter claim is only with respect to use of the mark BOSS in respect of the same goods as manufactured and sold by the defendant. 18. Attention is also drawn by the counsel for the defendant counter claimant to cross examination by the defendant of PW 1 Mr. Paul Youngblood President of BOSS US whose 100% subsidiary the plaintiff claims to be to the effect that the area of business of the plaintiff is electronic musical instruments and computer peripherals and that the plaintiff does not manufacture public address mega phones or cassette players with public address amplifiers. It is argued that the plaintiff learnt of the defendant when the examination report pursuant to an application for registration by the plaintiff disclosed the defendant and inspite of which the plaintiff did not respond thereto. Attention is also invited to the affidavit by CS(COMM) 565 2018 & CC No.6 2018 way of examination in chief of PW 3 Yasuji Shirai an employee of the plaintiff to the effect that in 2004 though the examination report disclosed the defendant but in the absence of any information of use by the defendant of the mark on any specific product mentioned in their trade mark application under the BOSS mark the plaintiff believed that the conflict was adequately addressed by the plaintiff by pursuing their trade mark application for the BOSS mark. It is thus stated that there is a delay from 1986 till 2007 when the suit was filed and that the plaintiff is not entitled to any reliefs on the cause of action for passing off on the said ground alone. Attention is also invited to the communication of the year 2004 Ex.PW 3 1 of the plaintiff to its agent G.L. Sanghi in India asking the agent to enquire about the popularity of the products of the defendant under the subject mark BOSS. It is stated that thus on 2nd September 2004 the plaintiff knew of the website of the defendant but did not sue because the plaintiff then did not have registration. 19. The counsel for the defendant has contended that the products of the defendants are different from that of plaintiff’s and no ground for injuncting the defendant which is having large volumes of sales is made out. It was also informed that the defendant is primarily selling to Africa and to Middle East. Attention was invited to Section 12 of the Trademarks Act 1999 with respect to honest concurrent user and it is contended that if it is possible for both trademarks to exist no injunction will be granted. 20. The counsel for the plaintiff in rejoinder arguedthat the defendant in its written statement has admitted possibility of confusion that the defendant has an alternative mark attention is invited to Ex.DW 2 B where CS(COMM) 565 2018 & CC No.6 2018 the defendant is using the mark it is contended thus that the defendant will thus not suffer any prejudice even if injuncted the explanation given by DW 4 Kedar Nath who designed the logo of BOSS sitting on a chair is unbelievable and in Prius Auto Industries Ltd. Supra the explanation of the defendant therein was believed by the High Court and Supreme Court did not go into the question and injunction was denied because the defendant had not copied the logo or the model numbers. 21. The counsel for the defendant added that in a claim on the ground of passing of it is essential to establish reputation and goodwill and it is contended that it was for the plaintiff to establish possibility of confusion and which the plaintiff has failed to do and the that counter claim of the defendant cannot be the basis of confusion especially when PW 1 has admitted that the plaintiff is not manufacturing the same products as the defendant. It is contended that in 1979 when the defendant adopted the mark there was no internet and access could only be through magazines and the plaintiff has not proved any magazines containing the advertisements of the plaintiff having circulation in India. It is further argued that use by the defendant of the mark with the words "Hi Tone" distinguishes the mark of the defendant from that of the plaintiff and had the defendant been dishonest the defendant would not have used the mark "BOSS" along with Hi Tone". With respect to the mark "Hi Tone BOSS" attention is drawn to IA No.17065 2018 filed by the defendant where the defendant has pleaded that the partnership firm which comprised of Arun Jain and Sushila Jain as CS(COMM) 565 2018 & CC No.6 2018 its partners had been reconstituted on 1st April 2018 with Sushila Jain retiring and Sunny Jain replacing Sushila Jain as partner in the defendant. It is stated that it is the outgoing partner Sushila Jain who is using the mark Hi Tune BASS". It is further argued that there is no presumption of dishonesty. The delay on the part of the plaintiff from 1979 till 2007 in instituting the suit is reiterated. 22. The counsel for the plaintiff during the hearing handed over the opinion of Ahuja Radios with respect to the catalogue handed over to the counsel for the plaintiff in the Court on 12th September 2019 and as recorded in the order dated 12th September 2019 in this suit reproduced above to the effect that the goods being marketed by the defendant under the subject mark are the same as those marketed by the plaintiff under the mark. It is reminded that the plaintiff besides injunction is also entitled to damages. It was also informed during the hearing that rectification applications filed by both plaintiff and the defendant are pending consideration. 24. As would be obvious from the above the plaintiff has pegged its case merely on the principle of being the first adopter of the mark in the world even if not in India and being entitled to restrain the defendant even without proving any goodwill or reputation in India at the time when the defendant adopted the mark. The other leg of the argument of the plaintiff is that since the manner and style adopted by the defendant in respect of the mark is identical to that of the plaintiff copying by the defendant is writ CS(COMM) 565 2018 & CC No.6 2018 25. As would also be obvious from the above the defendant contests by taking the defense of honest and concurrent user difference in goods and 26. As far as the plea noticed above of the defendant of concurrent user and there being no possibility of confusion and of the mark BOSS being generic and a dictionary word are concerned the same are belied from the defendant making a counter claim against the plaintiff and also seeking rectification before the authorities concerned of the registration in favour of the plaintiff. The defendant in the counter claim and in the Rectification Petition has admitted inherent confusion owing to similarity of the two marks and the defendant cannot as an after thought now argue that there is no possibility of confusion. Similarly defendant who has itself obtained registration of the same mark is not permitted to take the plea of the same being generic. Reference in this regard may be made to Ozone Spa Vs. Ozone Club MANU DE 0151 2010 and Mind Gym Ltd. Vs. Mind Gym Kids Library 2014 SCC OnLine Del 1240. 27. The first question to be adjudicated is the test to be applied to determine passing off i.e. whether the appropriate test is that of first in the market wheresoever in the world as contended by the counsel for the plaintiff relying primarily on Neon Laboratories Ltd. supra and Milmet Oftho Industries supra or of first in the market in India and or even if not first in the market in India having goodwill and reputation in India as contended by the defendant counter claimant relying on Toyota Jidosha Kabushiki Kaisha supra. CS(COMM) 565 2018 & CC No.6 2018 28. All the three judgments are of Benches of two Hon’ble Judges of the Supreme Court. Having examined all the three judgments minutely in my view in the facts of the present case the law as laid down in Toyota Jidosha Kabushiki Kaisha supra would apply and not the law laid down in Neon Laboratories Ltd. supra and Milmet Oftho Industries supra. Though Milmet Oftho Industries supra unequivocally lays down that the mere fact that the mark had not been used in India would be irrelevant if the mark was first used in the world market but holds so in the context of drugs and medicinal products and after holdingthat nowadays the field of medicine is of an international character that doctors particularly eminent doctors medical practitioners and persons or companies connected with medical field keep abreast of latest developments in medicine and preparations worldwide that medical literature is freely available in this country that doctors medical practitioners and persons connected with the medical field regularly attend medical conferences symposiums lectures etc and that nowadays goods are widely advertised in newspapers periodicals magazines and other media which is available in the country leading to a product acquiring a worldwide reputation and all of which increase the possibility of likelihood of deception or confusion and the possibility that with the passage of time some conflict may occur between the use of the mark by the Indian company and the use of the mark by the overseas company and the Court must ensure that public interest is in no way imperiled. The Supreme Court after holding so also cautioned that multinational corporations which have no intention of coming to India or introducing their product in India may not attempt to throttle Indian companies by not permitting it to sell a product in India if the Indian CS(COMM) 565 2018 & CC No.6 2018 company has genuinely adopted the mark and developed the product and is first in the market. I am afraid the said reasoning cannot be extrapolated to apply with respect to musical instruments and public address system and their parts. Moreover Supreme Court in Milmet Oftho Industries supra was concerned with an application for interim injunction. The stage at which the Supreme Court was approached in Neon Laboratories Ltd. supra was also at the stage of application for interim relief. Though the said judgment also holds that the “‘first in the market’ test has always enjoyed pre eminence” but again has observed so in the context of manufacture and marketing of pharmaceutical products and medicinal preparations and after finding that though the defendant appellant therein had applied for registration on 19th October 1992 and was granted registration on 14th September 2001 but commenced use of the mark only from 16th October 2004 onwards and that the mark had remained dormant for 12 years and that by the time the defendant appellant therein commenced use of the mark the plaintiff respondent therein was already in the market and was thus first in the market with the subject trademark. Again this distinguishing fact is enough for what is laid down in the said judgment not to be blindly followed. DW 1 Arun Jain partner of the defendant in his affidavit by way of examination in chief unequivocally deposed use of the mark since 1979. Though he was cross examined at length but a dissection thereof does not show the plaintiff to have challenged the use of the mark by the defendant since 1979 as deposed by DW 1 Arun Jain in examination in chief. The plaintiff in its written arguments has contended that there is no documentary evidence on record of use of the mark by the defendant in 1979. Plaintiff in its written arguments has further contended that evidence CS(COMM) 565 2018 & CC No.6 2018 of first use of the mark by the defendant is of the year 1996. However in the face of no challenge in cross examination to the deposition of DW 1 Arun Jain of use since 1979 the plaintiff is found to have admitted the same. The emphasis of the plaintiff even otherwise has been on establishing that some international registrations of the mark in favour of the plaintiff are of prior to 1979 when the defendant claims first use of the mark in India. I may notice that in Neon Laboratories Ltd. supra relied upon by the counsel for the plaintiff herein the plaintiff Neon Laboratories Ltd. was the first user of the mark in the Indian market despite earlier registration in favour of the defendant therein who was ultimately injuncted from using the mark subject matter of that case. Here the defendant counter claimant is the first user of the mark in the Indian market. 29. Supreme Court in Toyota Jidosha Kabushiki Kaisha supra was concerned with a final decree in a suit for permanent injunction restraining passing off. The plaintiff therein claimed to be the first worldwide user of the mark ‘PRIUS’. However the defendants therein were the first user of the mark in India. The Single Judge of this Court relying on Milmet Oftho Industries supra granted a decree for injunction in favour of the plaintiff therein restraining the defendants from use of the mark ‘PRIUS’. In appeal the Division Bench of this Court reversed the decree holding that the first use by the plaintiff outside India of the mark though widely reported and advertised did not have much reportage in India that the Territoriality Doctrineholds the field that prior use of the trade mark in one jurisdiction CS(COMM) 565 2018 & CC No.6 2018 would not ipso facto entitle its owner or user to claim exclusive rights to the said mark in another dominion that it is necessary for the plaintiff to establish that its reputation had spilled over to Indian market prior to commencement of the use of the mark by defendant in India that internet penetration in India in 1997 was lean and it could not be said that prior to April 2001 the plaintiff had established its goodwill and reputation in the Indian market which the defendants had taken advantage of and that the test of possibility likelihood of confusion would be valid at the stage of quia timet action and not at the stage of final adjudication of the suit particularly when the defendants had used the impugned mark for a long period—the test would be one of actual confusion and no evidence with respect whereto was led by the plaintiff in that case. The Supreme Court while affirming the order of the Division Bench of this Court further held that to prove and establish an action of passing off three ingredients are required to be proved by the plaintiff i.e. his goodwill misrepresentation by the defendant and damage the test of whether a foreign claimant may succeed in a passing off action is whether his business has a goodwill in a particular jurisdiction which criterion is broader than the “obsolete test" of whether a claimant has a business place of business in that jurisdiction if there are customers for the plaintiff s products in that jurisdiction then the plaintiff stands in the same position as a domestic trader the overwhelming judicial and academic opinion all over the globe therefore seems to be in favour of the territoriality principle which should apply to this country also to give effect to the territoriality principle the Courts must necessarily have to determine if there has been a spillover of the reputation and goodwill of the mark used by the claimant who has brought CS(COMM) 565 2018 & CC No.6 2018 the passing off action and if goodwill or reputation in the particular jurisdiction i.e. in India is not established by the plaintiff no other issue really would need any further examination to determine the extent of the plaintiff’s right in the action of passing off. In my view in the light of the aforesaid judgment in an action for passing off as the present suit is the factum of the plaintiff being first in the world is irrelevant without the plaintiff establishing goodwill and reputation in India and which the plaintiff has failed to prove. Though the plaintiff has claimed having an exclusive distributor in India since 1993 but the same also remained to be proved. Thus as far as India is concerned defendants are the first user and that being the position the action for passing off has to I may mention another interesting facet of the present case. Though the registrations of the plaintiff outside India are of the registration in favour of the plaintiff in India is not the same and is of the word mark ‘BOSS’ with the alphabet ‘B’ depicted only in commonly used font and not in the stylized logo found in in the registrations outside India. Else the use by the plaintiff of the mark is as and by the defendants is as It would thus be seen that while the registration in favour of the plaintiff is of the word mark ‘BOSS’ with the alphabet ‘B’ therein being not in the style as in the logo registrations of plaintiff abroad the registration in favour of the CS(COMM) 565 2018 & CC No.6 2018 defendant is of a device with the word ‘BOSS’ with alphabet ‘B’ in the same style as used by the plaintiff in its international registrations as under: In the light of the aforesaid discussion I now proceed to return issue wise findings. Issues in the suit: 1. Whether the suit has been signed verified and instituted by a duly authorized person on behalf of plaintiff OPP 2. Whether the plaintiff is the proprietor of the BOSS trademark Issue in the Counter Claim: 1. Whether the counter claimant is the proprietor of the trademark BOSS in India OPCC 33. No arguments were addressed by the counsels on these issues though of course in the written arguments the said issues have been referred to. On perusal of the evidence these issues are found to have been proved. It is thus held that the suit has been signed verified and instituted by a duly authorised person on behalf of the plaintiff that the plaintiff is the proprietor of word mark ‘BOSS’ and that the defendants counter claimants are the proprietor of device mark ‘Hi Tone BOSS’. Issues in the suit: 4. Whether the defendant is the prior user of the trademark in India OPD CS(COMM) 565 2018 & CC No.6 2018 6. Whether the defendants have passed off their products as those originating from the plaintiff OPP 9. Whether the plaintiff had a reputation in India at the time of adoption of the defendants adoption of the trademark OPP Issues in the Counter Claim: 3. Whether the counter claimant has a reputation in relation to the BOSS trademark OPCC 4. Whether the use of the trademark BOSS by the counter claimant will amount to passing off OPD 5. Whether the defendant is the prior user of the trademark BOSS 8. Whether the manner of adoption by the counter claimant amounts to infringement of copyright in the stylized manner of representation OPD I have already hereinabove held that the plaintiff has failed to prove that marks had reputation and goodwill in India prior to commencement of use of the mark in India by the defendants and the plaintiff is thus not entitled to any relief in an action for passing off. Resultantly it is heldthat the defendants are the prior user of the trade mark in India that the defendants have not passed off their products as those originating from the plaintiff that the plaintiff did not have a reputation in India at the time of adoption of the mark by the defendant that the defendants by use had a reputation in relation to the ‘BOSS’ trade mark that the use by the defendants will not amount to passing off and that the defendants are the prior user in India of the trade mark. Issues in the suit: 7. Whether the adoption of the BOSS trademark by the Defendants is dishonest OPP CS(COMM) 565 2018 & CC No.6 2018 Issues in the Counter Claim: 6. Whether the adoption of the trademark BOSS and the logo by the counter claimant is dishonest OPD 7. Whether the counter claimant is the owner of copyright in the stylized manner of representation of HiTone OPCC 8. Whether the manner of adoption by the counter claimant amounts to infringement of copyright in the stylized manner of representation OPD 35. Adoption by the defendant of the mark ‘BOSS’ with alphabet ‘B’ thereof in the same style as in the first use of the mark by the plaintiff though not in India but outside India appears to be more than a coincidence. It is highly unlikely that the defendant carrying on business in allied even if not same goods would conceive the same mark as the plaintiff’s would style the alphabet ‘B’ thereof identically to that in the mark of the plaintiff launched a few years earlier though not in India but outside India. The defendant on this aspect has examined the son of the artist who is claimed to have designed the device mark of the defendant and who deposed that his father who has since died had designed the mark for the defendant but the same is not sufficient to dispel the doubt in this regard. Though there is no definite evidence in this context but the smell on delving deep into the evidence is of the probability of the defendant being aware while adopting its device mark being aware of the mark conceived by the plaintiff outside India in relation to allied if not similar goods. The evidence of the defendant having styled the alphabet ‘B’ of its mark on the basis of the chair of a boss in an office is also unbelievable. However inspite of the aforesaid I am unable to on the existing evidence return a finding of dishonesty against the defendant. Merit is found in the contention of the CS(COMM) 565 2018 & CC No.6 2018 counsel for the defendant that the use by the defendant of the mark Hi Tone BOSS and not BOSS alone dispels any notion of dishonesty. It is significant that the plaintiff has failed to prove use or registration in India at that time and had the defendant being dishonest the defendant would have blatantly copied the mark of the plaintiff. The awareness of the defendant of the goods and marks of the plaintiff can thus only be said to have led to the idea behind the mark of the defendant. Accordingly I holdthe adoption of the mark by the defendant is not dishonest the defendants’ adoption of the mark is honest that the adoption of the mark and logo by the defendant is not dishonest and the defendant is the owner of copyright in the stylized manner of representation of Hi Tone. Issue in the suit: 3. Whether the plaintiff is guilty of delay latches and acquiescence It has come on record that the plaintiff at the time of applying and obtaining registration in India was made aware of the prior registration in favour of the defendant. The plaintiff has not proved the enquires made by it at that time on the basis of which it is claimed that the existence of the mark of the defendant and or use thereof did not affect the plaintiff. The suit has undoubtedly been filed long thereafter. Though it is the case of the plaintiff that the plaintiff instituted the suit when found the defendant was passing off its goods as those of the plaintiff but again there is no evidence of actual passing off of its goods by the defendant or of any confusion in the market or of any complaints having been made to the plaintiff by anyone CS(COMM) 565 2018 & CC No.6 2018 who may have dealt with the defendant believing that the dealing was with the plaintiff. I thus hold the plaintiff to be guilty of laches and acquiescence. Issue in the suit: 10. Relief. Issue in the Counter Claim: 37. As a result of the findings above the plaintiff is not entitled to any injunction or ancillary relief against the defendant. As far as the Counter Claim is concerned the defendant made the same only as a counter blast to the suit brought by the plaintiff and the defendant even now as recorded in the order dated 12th September 2019 reproduced above has offered to restrict the use of the mark. In any case the claim of the defendant is of the goods of the defendant being different from that of the plaintiff. In these circumstances the defendant cannot succeed on its Counter Claim. 38. However actions for infringement of trade mark and passing off also have a public interest element of protecting the customers at large from possibility of confusion and of being misled into buying goods of one assuming them to be of another. In the said light it is deemed apposite to notwithstanding the above bind the defendant to its statement as recorded in the order dated 12th September 2019 reproduced above of confining the use of the mark to the goods catalogue whereof was handed over to the counsel for the plaintiff on 12th September 2019 and to not use the mark ‘BOSS’ without using the prefix Hi Tone as is presently being done and in the manner as shown in the said catalogue and to not expand their business in CS(COMM) 565 2018 & CC No.6 2018 the goods under the said mark beyond the jurisdictions where the same is presently being carried on. 39. Accordingly the suit of the plaintiff is disposed of by passing a decree in favour of the plaintiff and against the defendant restraining the defendant from using the subject mark in contravention of its statement as recorded in the order dated 12th September 2019 and binding the defendant to the said statement and the Counter Claim of the defendant is disposed of by passing a decree of dismissal thereof. 40. The parties are left to bear their own costs. Decree sheets be drawn up. JANUARY 6 2021 RAJIV SAHAI ENDLAW J. CS(COMM) 565 2018 & CC No.6 2018

There is no absolute rule that an extra-judicial confession can never be the basis of a conviction: Orissa High Court

An extra-judicial confession is a weak piece of evidence or not, it depends upon the facts of that particular case and it should be examined by the Court with great care and caution. If from the very nature of the confession itself to the person it was made, and under the circumstances, it has been made, the slightest doubt arises to the mind of the Court, then it shall be proper on the part of the Court to proceed with the presumption that the extra-judicial confession, in that case, is a weak piece of evidence by itself. The judgment was passed by The High Court of Orissa in the case of Renta Nag alias Shyam Sundar Nag Vs the State of Odisha [JCRLA No.78 of 2007] by a Division Bench consisting of Hon’ble Shri Justice S. K. Mishra & Justice Savitri Ratho. The facts of the case are that the appellant and deceased were husband and wife. They were residing together in one house. There was some dispute between the deceased and the appellant in the night for which the appellant murdered the deceased by assaulting her using a crowbar and paniki. Further, the appellant assails his conviction and sentence to suffer imprisonment for life and to pay a fine of Rs.2,000, in default, to undergo rigorous imprisonment for a further period of two months under Section 302 of the Indian Penal Code, 1860. Learned Counsel for the appellant seriously disputing the finding of the Sessions Judge that it is the appellant and no one else who has murdered the deceased and the Sessions Judge has not appreciated the evidence available on record in its proper perspective and has come to the erroneous conclusion. Pointing out that there is no eye witness to the occurrence, He further, submits that the circumstances established in this case are not fully established and, therefore, there is reasonable doubt regarding the complicity of the appellant in the commission of the crime. He, therefore, urges to allow this appeal and to set aside the conviction and set the appellant free holding him to be not guilty. Learned Counsel for the respondent, on the other hand, submits that the circumstances of last seen theory and the leading to the discovery of weapon of offence, in this case, have established the prosecution case beyond a reasonable doubt. There is no dispute in this case that the prosecution has not put forth any eyewitness to establish its case. Instead, the prosecution based its case on circumstantial evidence. The circumstances that have been accepted by the sessions Judge. While relying on The Supreme Court Judgment Ram Lal Vs. State of Himachal Pradesh it was observed that “there is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material.”

HIGH COURT OF ORISSA: CUTTACK. JCRLA No.707 From the judgment of conviction and order of sentence dated 09.08.2007 passed by Smt. V. Jayashree learned Additional Sessions Judge Rourkela in Sessions Trial No.78 of 2006recorded by the learned Additional Sessions Judge Rourkela in Sessions Trial No.78 of 2006 happens to be the brother of the deceased and the informant in this case. P.W.2is the wife of the informant. She also stated about the post occurrence scenario and alleged extra judicial confession. P.W.4is a witness to inquest. P.W.5is a witness to seizure of wearing apparels under Ext. 4. P.W.6 and P.W.7 were examined to prove the disclosure statement made before the Investigating Officer. P.W. Nos.6 and 7 have not supported the case of the prosecution and have been declared hostile. P.W.8 is a Constable of Lathikata Police Station. He escorted the dead body for post mortem examination and after the post mortem examination he had produced the wearing apparels of the deceased before the Investigating Officer. P.W.3 had conducted post mortem examination over the dead body of the deceased. P.W.9 Madan Mohan Mallik) the Sub Inspector of Police Lathikata Police Station is the Investigating Officer. The prosecution also led into evidence 11 exhibits and 9 material objects to substantiate its case. The defence on the other hand neither examined any witness nor relied upon any document to establish the defence case. In this case there is no dispute regarding identity of the dead body of the deceased which was subjected to post mortem examination by P.W.3. Learned Amicus Curiae also does not dispute the finding of the learned Additional Sessions Judge Rourkela so far it relates to the homicidal nature of death of the deceased. Moreover a conjoint reading of the evidence of P.W.3 Dr. R.R. Sadwal) Ext.1 post mortem examination report Ext.3 inquest report and Ext.2 the medical opinion on examination of weapon of offence leaves no reasonable doubt that the deceased met a homicidal death. Mr. B. Nayak learned Amicus Curiae seriously disputing the finding of the learned Additional Sessions Judge Rourkela that it is the accused appellant and no one else who has committed the murder of the deceased submits that the learned Additional Sessions Judge Rourkela has not appreciated the evidence available on record in its proper prospective and has come to the erroneous conclusion. Pointing out that there is no eye witness to the occurrence learned Amicus Curiae further submits that the circumstances established in this case are not fully established and therefore there is reasonable doubt regarding complicity of the appellant in commission of the crime. He therefore urges to allow this appeal and to set aside the conviction and set the appellant free holding him to be not guilty. Mr. G.N. Rout learned Additional Standing Counsel for the State on the other hand submits that the circumstances of last seen theory and the leading to discovery of weapon of offence in this case have established the prosecution case beyond reasonable doubt. There is no dispute in this case that the prosecution has not put forth any eye witness to establish its case. Instead the prosecution based its case on circumstantial evidence. The circumstances that have been accepted to have been established by the learned Additional Sessions Judge Rourkela by the prosecution in this case are as follows: Homicidal nature of death of the deceased the undisputed fact that the appellant and the deceased were in the house in the alleged night and leading to discovery of the weapon of offence M.Os. I and II on the disclosure statement of the accused recorded under Section 27 of the Indian Evidence Act 1872 and finding of blood patches on the wearing apparels of the appellant. So far as the 1st circumstance is concerned there is no dispute that the death of the deceased was homicidal in nature. The 2nd circumstance is of much importance in this case as the learned Additional Sessions Judge Rourkela proceeded with the conviction that there were only two members of the family residing in the house on the date and time of the occurrence and they happen to be the deceased and the appellant. The learned Additional Sessions Judge Rourkela further held that they were in the house in the alleged night is not disputed. However a cross reference to the accused statement of the appellant reveals that no such question has been put to the appellant in his examination under Section 313 of the Code of Criminal Procedure 1973 hereinafter referred to as “the Code” for brevity). To answer the 7th question that was asked him regarding his defence case the appellant has categorically stated that he was not present at the time of occurrence. Therefore it was erroneous on the part of the learned Additional Sessions Judge Rourkela to come to a conclusion that there is no dispute that the appellant and the deceased and or no one else was present in the alleged night of occurrence in their house. The circumstance of the husband and the wife and or none else was there in the house in the alleged night and on the next day discovery of the dead body of the deceased only with the appellant remaining there is a very strong circumstance and in the absence of any explanation an adverse inference can be drawn. Like any other fact this fact has also to be proved by the prosecution beyond all reasonable doubt. In this case P.W.19 who happens to be the brother of the deceased stated that on being informed by his friend that his sister had died he himself his mother his wife and another villager had gone to the house of the accused and found the dead body of his sister lying in the house of the accused. P.W.1 who belongs to village Sonaparbat under Tangripali Police Station in the district of Sundargarh. Whereas the appellant is a resident of village Ergeda under Lathikata Police Station in the district of Sundargarh. P.W.1 has not specified the exact time of their reaching in the house of the appellant. It can be safely assumed that they must have reached there by the time the death body was already discovered. P.W.2the wife of P.W.1 has given a slightly different version. She stated that on 09.01.2006 at about 9.30 A.M. the accused came to her house and told them that on the previous night the deceased vomited blood and died. Hearing such information she herself and her mother in law went to the house of the accused and sent information to her husband P.W.1 through his friend. Her husband also came to the spot at 12.00 Noon. Then they entered into the house and found cut injuries on the body of the deceased. While they questioned the accused admitted to have killed her by assaulting her by means of a crowbar and vegetable cutter. Thus by the time the informant and his wife reached at the spot the dead body of the deceased was already discovered and it is not the case of the prosecution that P.W.1 and his friend had seen the appellant Renta Nag @ Shyam Sundar Nag along with the dead body. The other materials available on record reveal that P.W.4is a witness to inquest. He has not said anything about any of the circumstances available on record. P.W.5stated that he did not know anything about the incident. On 10.01.2006 the police seized the wearing apparels under seizure list Ext.4. P.W.6 and P.W.7 Subrat Ali) are the witnesses to the discovery statement seizure of the weapon of offence and as stated earlier they have turned hostile. P.W.8is the police constable who had carried the dead body for post mortem examination. Madan Mohan Mallik) the Sub Inspector of Police Lathikata Police Station is the Investigating Officer. This being the entire evidence on record the court has to decide on the evidence given by P.Ws.1 and 2 and has to come to the conclusion that whether the prosecution has proved its case beyond reasonable doubt that in the night of occurrence the appellant and the deceased were only present and none else and immediately on the next morning the dead body was recovered from that house. Having carefully gone through the entire materials on record in the light of the arguments made by the learned Amicus Curiae as well as the learned Additional Standing Counsel this Court is of the opinion that this circumstance has not been established by the prosecution beyond all reasonable doubt. It has been decided by the Hon‟ble Supreme Court in the case of Hanumant Govind Nargundkar and another vrs. State of Madhya Pradesh: reported in 1952SC 343 wherein the Hon‟ble Supreme Court has held as “xx xx xx xx xx In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson to the jury in Reg. v. Hodge 2 Lewin 227) where he said : The mind was apt to take pleasure in adapting circumstances to one another and even in straining them a little if need be to force them to form parts of one connected whole and the more ingenious the mind of the individual the more likely was it considering such matters to overreach and mislead itself to supply some little link that is wanting consistent with theories and necessary to render them complete." for granted some its previous It is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. Xx xx xx xx xx xx ” In a case which is based on circumstantial evidence it is the duty of the prosecution to establish each and every circumstances beyond reasonable doubt. Further in a case which is based on circumstantial evidence the court must come to the conclusion that the circumstance has been established by the prosecution conclusively. Therefore there is no material on that the prosecution has established its case beyond reasonable doubt that in the night between 9th and 10th January 2006 only the appellant and the deceased were present in their house. It is also not established that in the next morning when the dead body of the deceased was discovered it was the appellant who present in the house. So this circumstance is not proved by the prosecution beyond reasonable doubt. The discovery of weapon of offence has been given much weightage by the learned Additional Sessions Judge Rourkela. The Investigating Officer has stated that on 10.01.2006 he apprehended the appellant in the jungle near the Primary School of Ergeda. At about 1.30 P.M. he arrested the appellant. In police custody on that day at about 2.30 P.M. the appellant confessed to have killed his wife by means of a vegetable cutterand a crowbar. He had concealed the weapon of offence under a heap of planks inside the bed room in a dark place. The appellant led him and other witnesses to the place of concealment and gave recovery of the crowbar and the PANIKI in presence of witnesses. Ext.7 is the relevant portion of that statement of the accused recorded by him under Section 27 of the Indian Evidence Act 1872. Ext.7 reveals that the crowbar and the PANIKI were kept by the appellant under the wood heap in a dark place inside the bed room. Ext.3 reveals that the dead body of the deceased was also lying in the same room. P.Ws.6 and 7 as stated earlier have not supported the prosecution case and have been declared hostile. The prosecution put forth the case that the Investigating Officer had prayed the learned S.D.J.M. Panposh to send the material objects for chemical the State Forensic Science Laboratory Rasulgarh Bhubaneswar Odisha. However the forwarding report has not been exhibited in this case. The Investigating Officer has also not said as to how material objects 18 in numbers were sent to the Regional Forensic Science Laboratory Ainthapalli Sambalpur for chemical examination. Though he has stated that material objects were sent to the State Forensic Science Laboratory Rasulgarh Bhubaneswar Odisha Ext.11 shows that the chemical examination has been conducted by the Deputy Director and Chemical Examiner to the Government of Orissa Regional Forensic Science Laboratory Ainthapalli Sambalpur. Admittedly out of 18 material objects the wearing apparels of the deceased namely Saya Saree and Blouse which were stained with moderate and extensive human blood. The iron crowbar and Paniki were found to be stained with human blood but no opinion has been rendered as far as its group is concerned. The blood group of the accused has also not been established in this case. Therefore when there is no other evidence forthcoming and the prosecution has relied only upon the disclosure statement of the appellant while in police custody and the recovery of weapon of offence on his statement then it is the duty of the prosecution to establish the blood group of the deceased and further establish that that group of human blood was found on the weapon of offence. In this case though the iron crowbar and the Paniki were stained with human blood grouping has not been done. Similarly blood grouping of the deceased has not been done. Though it can be argued and accepted at this stage that most probably blood group of the deceased was „A‟ group. At the same time when no blood grouping is done so far as the appellant is concerned so finding of few patches of blood of Group „A‟ on his wearing Lungi will not establish the prosecution case beyond reasonable doubt. Now coming to the extra judicial confession of the appellant before P.Ws.1 and 2 both of them have stated that on their asking the accused confessed that he has committed murder of the deceased as there was dispute between them. We have the opportunity to examine the law of appreciation of evidence with respect to extra judicial confession. In a recently decided case i.e. in the case of Buta @ Bidyadhar Parida and another Versus State of Odishawe have observed as follows: “17. In this case the prosecution heavily relies upon the extra judicial confession component of the evidence as led before the learned Sessions Judge. Section 24 of the Indian Evidence Act 1872 is relevant for the purpose of appreciation of this case. It reads as follows: “24.Confessions caused by inducement threat or promise when irrelevant in criminal proceeding. A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement threat or promise having reference to the charge against the accused person proceeding from a person in authority 15 and sufficient in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.” Over the years through judicial pronouncements Courts in India have laid down the guidelines for appreciation of retracted extra judicial confession it can be summarized as I) The Hon‟ble Supreme Court in the case of Sahadevan & Anr Vs State of Tamilnadu as per the judgment delivered on 8th May 2012 in Criminal Appeal No.1405 of 2008 after analyzing several judgments stated the principles regarding appreciation of extra judicial confession in the following manner: I a) The extra judicial confession is a weak evidence by itself. It has to be examined by the court with great care and caution. I b) It should be made voluntarily and should be I c) It should inspire confidence. I d) An extra judicial confession to be the basis of conviction it should not suffer 16 from any material discrepancies and inherent improbabilities. I e) Such statement essentially has to be proved like any other fact and in accordance with In case of Ram Lal Vs. State of Himachal Pradesh the Hon‟ble Supreme court as per the judgment delivered on 3rd October 2018 in Criminal Appeal No.5710 observed that there is no absolute rule that an extra judicial confession can never be the basis of a conviction although ordinarily an extra judicial confession should be corroborated by some other material. If the witness proving the confession generally reliable III B) If the relation of the witness with the accused is of such a nature that the later would confine in him III C) Is there any motive for the witness to implicate the accused persons Is the witness interested in the outcome of the criminal trial being a relation of the deceased or having any interest in the affairs of the deceased and If the circumstances brought on record consistent with If all the four questions are answered in favour of the prosecution then it shall be safe appropriate and expedient to accept such retracted extra judicial confessions to record a conviction of the accused arraigned of committing the circumstances and further corroborated by other evidence. The extra judicial confessions attains greater is 18 supported by clear and cogent V) The extra judicial confessions to form the basis of conviction should not suffer from any material discrepancy and inherent improbabilities. VI) Such confession has to be proved like any other fact in accordance with the provisions of the Evidence Act.” Applying the above principles to the case in hand it is seen that P.W.2 has stated that on 09.01.2006 at about 9.30 A.M. the appellant came to their house and told them that on the previous night the deceased had blood vomiting and died which reveals that the accused volunteered that the deceased died due to vomiting and later on at 12.00 Noon after arriving of her husband P.W.1 the appellant disclosed that he has committed murder of the deceased. P.W.1 however stated that when he got the information from his friend he went to the house of the appellant along with his wife his mother and another villager and they found the deceased lying in the house of the accused with serious bleeding injuries and the accused on being asked told them that he had committed murder of the deceased. It is thus clear that there are certain discrepancies regarding the very time and place where the extra judicial confession was made. The substance of the extra judicial confession have not been produced. Moreover P.Ws.1 and 2 being related to the deceased are interested witnesses. So keeping in view this aspect of the case we are of the opinion that it is not expedient or in the interest of justice to rely upon the retracted extra judicial confession. Hence the learned Additional Sessions Judge Rourkela has committed error by accepting the alleged extra judicial confession made by the In the result the appeal is allowed. The conviction of the appellant Renta Nag alias Shyam Sundar Nag under Section 302 of the Penal Code and sentence to undergo imprisonment for life and to pay a fine of Rs.2 000 only and in default to undergo imprisonment for a further period of two months recorded vide the impugned judgment and order dated 09.08.2007 by the learned Additional Sessions Judge Rourkela in Sessions Trial No.78 of 2006 are hereby set aside. The appellant is acquitted of the charge under Section 302 of the Penal Code. Since the appellant namely Renta Nag alias Shyam Sundar Nag is in custody he be set at liberty forthwith unless his detention is required in any other case. The L.C.R. be returned back forthwith. As restrictions are continuing due to COVID 19 pandemic learned counsel for the parties may utilize the soft copy of this order available in the High Court‟s official website or print out thereof at par with certified copies in the manner prescribed vide Court‟s Notice No.4587 dated 25.03.2020. S. K. Mishra J. Savitri Ratho J. Savitri Ratho J. I agree. Orissa High Court Cuttack Dated the 8th January 2021 B. Jhankar

The respondent is not expected to obtain any information from the stock exchanges for the sole purpose of providing the same to an applicant under the RTI Act. : Appellate Authority, SEBI.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of Geeta Khattar v CPIO, SEBI, Mumbai (Appeal No. 4306 and Appeal No. 4307 of 2021) dealt with an issue in connection with the Section 2 (f) of the Right to Information Act, 2005. The appellant, Ms Geeta Khattar had filed an application via RTI MIS Portal on the 14th of April, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 7th of May, 2021, filed by the appellate. After receiving a letter from the respondent on 7th of May, 2021, on her application, the appellate decided to file two similar appeals on the 14th of June, 2021 ((SEBIH/A/E/21/00210 and SEBIH/A/E/21/00211). The appellant had filed the appeal on the grounds that she was not satisfied with the response provided to her query number 3 of her application. The appellant, vide query number 3 of her application dated April 14, 2021, inter alia, sought copy of the letter ref. no. KS/COMPLIANCE/NSE/CORR/…..1 which was requested under the email dated 17th of July, 2020. The appellant, in her appeals, requested that the requested information which is available with NSE, may be sought and provided to her. The respondent in response to the query number 3, informed that the query is in the nature of seeking clarification/opinion and accordingly, cannot be construed as seeking “information’ as defined under section 2(f) of the RTI Act. However, the respondent informed that the letter no. KS/COMPLIANCE/NSE/CORR/…..1 does not seem to be issued by SEBI. For the query no. 3, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Sh. Pattipati Rama Murthy vs. CPIO, SEBI (Decision dated July 8, 2013), held: “… if it (SEBI) does not have any such information in its possession, the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations, he found that the information sought by the appellant was not available with SEBI and therefore, the respondent cannot be obliged to provide such non–available information. Further, the appellant, in her appeals, submitted that the requested data is available with NSE and has requested SEBI to seek information from them. Mr Baiwar found that the respondent is only expected to see that the information to be furnished to an applicant is the one which exists with the public authority when it receives an application under the RTI Act. The respondent is not expected to obtain any information from the stock exchanges for the sole purpose of providing the same to an applicant under the RTI Act.

Appeal No. 4306 and 43021 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43021 Appeal No. 43021 Geeta Khattar CPIO SEBI Mumbai The appellant had filed an application dated April 14 2021 under the Right to Information Act 2005 against the said response dated May 07 2021. I have carefully considered the application the response and the appeals and find that the matter can be decided based on the material available on record. 2. Ground of appeal On perusal of the appeals it appears that the appellant is not satisfied with the response provided with respect to query number 3 of her application. In view of the submissions of the appellant I am only dealing with the said query in this appeal. 3. Query number 3 The appellant vide query number 3 of her application dated April 14 2021 inter alia sought copy of the letter ref. no. KS COMPLIANCE NSE CORR …..1 which was requested under the email dated 17 July 2020. The appellant in her appeals requested that the requested information which is available with NSE may be sought and provided to her. The respondent in response to the query number 3 informed that the query is in the nature of seeking clarification opinion and accordingly cannot be construed as seeking “information’ as defined under section 2(f) of the RTI Act. However letter no. KS COMPLIANCE NSE CORR …..1 does not seem to be issued by SEBI. 5. On perusal of the query I do not find any reason to disbelieve the observation of the respondent that the letter under reference was not issued by SEBI. It is understood that the same is not available with Appeal No. 4306 and 43021 SEBI. In this context I note that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO SEBIheld: “… if itdoes not have any such information in its possession the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations I find that the information sought by the appellant was not available with SEBI and therefore the respondent cannot be obliged to provide such nonavailable information. Further the appellant in her appeals submitted that the requested data is available with NSE and has requested SEBI to seek information from them. I find that the respondent is only expected to see that the information to be furnished to an applicant is the one which exists with the public authority when it receives an application under the RTI Act. The respondent is not expected to obtain any information from the stock exchanges for the sole purpose of providing the same to an applicant under the RTI Act. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The appeals are accordingly dismissed. ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA Place: Mumbai Date: July 12 2021

Lawfully wedded wife of a deceased government servant has claim to a share of pension even if another person was nominated by deceased: High Court of Jharkhand

The lawfully wedded wife will have the right to claim a share of her deceased husband’s pension from the government even if another person was nominated for the entire pension by the deceased. This was held in the judgement passed by a single member bench of the High Court of Jharkhand consisting of Justice Dr S.N. Pathak in the case of Rita Devi v State of Jharkhand [W.P. (S) No. 96 of 2020] pronounced on 10th August 2021. The petitioner, Rita Devi is the first lawfully wedded wife of a deceased government employee who died in harness while working in Bhandra Block, Lohardaga. The petitioner filed representation soon after the deceased man’s death however was not granted the retiral-cum-death benefits owed to her deceased husband. Subsequently respondent no. 4, Lalita Devi who claims to be the second wife of the deceased man was granted the entire retiral benefits and family pension. The petitioner’s counsel submitted that the petitioner was a widow with no means of income to support herself and that since she was never divorced from her husband, her husband’s marriage to respondent no. 4 was invalid by law. It was further submitted that respondent no. 4 was not legally entitled to retiral benefits of family pension of the deceased man, yet was enjoying both while the lawfully wedded wife had nothing. For this reason the petitioner requested the court for at least 50% of family pension and was willing to let go of the retiral benefits. The case of Rameshwar Devi v. State of Bihar & Other [2000 Supreme Court 202] was cited where the Supreme Court of India held that the right to family pension and retirement benefits of a deceased government who died servant without filing nomination would go to the first wife if she was not divorced and the second wife would not be entitled to any share. However it was pointed out in the immediate case that the deceased man nominated respondent no.4 for the pension and benefits and not the petitioner, whereas in the case cited above the deceased man died without filing any nomination. The court noted that the second wife was entitled to a share on the virtue of being named in the nomination, however the first wife would have a claim nonetheless as she was legally married to the deceased man till his death.

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.No. 920 Rita Devi wife of Late Krishna Sahu Resident of Durga Bari Lane Powerganj P.O. and P.S. Lohardaga District Lohardaga Jharkhand. 1. State of Jharkhand through Chief Secretary Government of Jharkhand … PETITIONER 2. Deputy Commissioner Lohardaga. 3. Block Development Officer Lohardaga 4. Lalita Devi Wife of Late Krishna Prasad Sahu Resident of Durga Bari Lane Poerganj P.O. and P.S. Lohardaga District Lohardaga. … … RESPONDENTS CORAM: HON BLE MR. JUSTICE DR. S. N. PATHAK Through : Video Conferencing) For the Petitioner For the Respondents For the Respondent No. 4: Ms. Khalida Haya Rashmi Advocate. 08 10.08.2021 Mr. Ashok Kumar Pandey Advocate Mr. Deepak Kumar Dubey AC to AAG II In view of outbreak of COVID 19 pandemic case has been taken up through Video Conferencing and heard at length. Concerned lawyers have no objection with regard to the proceeding which has been held through Video Conferencing and there is no complaint in respect to audio and video clarity and quality and after hearing at length the matter is being disposed of finally. Heard the parties. Petitioner has approached this Court with a prayer for a direction upon the respondents to make fifty percent of the Family Pension to the petitioner who is the first legally wedded wife of the deceased employee who died in harness while posted as Jan Sewak in Bhandra Block District Lohardaga. Facts of the case in brief as has been delineated in the writ petition is that petitioner’s husband while posted as Jan Sewak in Bhandra Block within the district of Lohardaga died in harness on 13.05.2010. After his death representation was filed by the petitioner on 30.07.2010 before the Deputy Commissioner Lohardaga for payment of death cum retiral benefits but the same has not been paid till date. Petitioner has come to know that one Lalita Devi claiming to be the second wife of the deceased has received entire retiral benefits and is also getting entire family pension. Being aggrieved petitioner knocked door of this Court in W.P.(S) No. 66218 2 which was heard and disposed of vide order dated 25.02.2019 directing the petitioner to approach before the competent court of civil jurisdiction for recovery of share of the amount from Lalita Devi. Thereafter petitioner approached before the authorities claiming family pension. However even after several representations prayer of the petitioner was not considered regarding payment of family pension and as such she was compelled to knock door of this Court. Mr. Ashok Kumar Pandey learned counsel appearing for the petitioner very fairly submits that petitioner is the widow of the deceased employee and there is none to look after her and in that view of the matter she is not in a position to file suit for recovery of retiral benefits from the second wife of the deceased employee. Learned counsel submits that in the circumstances petitioner confines her prayer for fixation of family pension in her favour to the extent of 50% only. Learned counsel further submits that though second wife of the deceased employee is not entitled for either retiral benefits or the family pension but she is enjoying both this Court may direct the respondents for fixation of at least 50% of the family pension in favour of the petitioner. Respondent no. 4 is being represented by Ms. Khalida Haya Rashmi. Learned counsel vociferously argues that name of the respondent no. 4 finds place in the column of nominee in the service excerpts of the deceased employee and as such she has rightly been paid the retiral benefits as well as the entire family pension. There is no illegality or any infirmity and the writ petition merits dismissal. Mr. Deepak Kumar Dubey AC to learned AAG submits that considering peculiar situation and the settled principles of law both the parties were called for by the respondents but they did not appear and as such no decision could be taken regarding fixation of family pension. Learned counsel further argues that already both the parties had approached before this Court earlier and a direction was given to prefer suit for recovery of retiral benefits etc. This is second round of litigation and as such in view of order passed in earlier writ petition the parties may prefer suit for redressal of their grievance. Be that as it may having heard rival submissions of the parties across the bar this Court is of the considered opinion that case of the petitioner merits consideration. Admittedly petitioner is the first wife and the marriage was 3 never declared null and void. Law is well settled that the second wife is not entitled for retiral benefits as well as pension. It has been held in celebrated Judgment of the Hon’ble Apex Court in the case of Rameshwari Devi Vs. State of Bihar & Others reported in 2000 Supreme 202 that right to family pension and death cum retirement gratuity of deceased father Government Servant contracting second marriage while first wife was alive no nomination made for family pension and other benefits the children of second void marriage legitimate and entitled to share family pension and death cum retirement gratuity along with wife and children of first marriage. It has further been held that they would be entitled to family pension only till they attain majority and second wife would not be entitled to anything. In the instant case the second wife is getting benefits of retiral benefits as well as family pension in view of the fact that her name finds place as a nominee in service excerpts of the deceased employee. However name of the first wife does not find mention in the service excerpts of the deceased employee. As per settled principles of law claim of the first wife merits consideration and she is entitled for the retiral benefits as well as the family pension etc. however learned counsel very fairly submits that at this juncture petitioner is claiming for family pension only and that too only 50% amount. In view of fair submission of learned counsel for the petitioner I hereby direct the petitioner as well as the respondent no. 4 to appear before the Deputy Commissioner Lohardaga on 26.08.2021 at 2:00 p.m. and upon their appearance the Deputy Commissioner Lohardaga after taking consent of the parties shall recommend their cases to the office of the Accountant General Jharkhand for fixation of pension to the extent of 50% each in favour of petitioner and that of the respondent no. 4. The entire exercise shall be completed within a period of four weeks thereafter. Let it be made clear that no further claim made by the parties shall be entertained. With the aforementioned observations and directions the writ petition stands disposed of. Let a copy of this order be given to respondent no. 2. Dr. S.N. Pathak J.)

Interference in the process of election once the calendar of events are notified would fall foul of the law : High Court of Karnataka

The writ petitions which in effect challenge the calendar of events issued by the State Election Commission cannot be entertained at this stage as it would run counter to the prior judgments of the Hon’ble Apex Court. This was held in JEELANI V. The THE DEPUTY COMMISSIONER BIDAR & Ors and connected matters[W.P.NO.200735/2021 and connected matters] in the High Court of Karnataka by a single bench consisting of JUSTICE  M.NAGAPRASANNA. The facts are that multiple petitions have been filed that seek to challenge the electoral process in the municipal wards of Bidar city. These writ petitions call in question certain notifications of reservation concerning ward Nos.5, 6, 26, and 32 Municipal wards of Bidar City. The court while hearing counsels appearing for the parties, found glaring illegality in the actions of the State in varying reservations from draft notification, without there being any objections filed by any stakeholder in the final notification. But also stated that the calendar of events had already been notified by the State Election Commission. The court discussed that Court would have to hold its hands to interfere with the process of election by relying on the judgment of the Hon’ble Apex Court in the case of  N.P.Ponnuswami vs. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., and others, were in the court had observed that “Interference in the process of election once the calendar of events is notified would fall foul of the law.” The court also referred to the judgment of the State of Goa and another vs. Fouziya Imtiaz Shaikh and another, wherein the following observations were made, “I. Under Article 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non-obstante clause contained in Article 243ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is, therefore, a matter of discretion exercisable by a writ court as to whether interference is called for when the electoral process is “imminent” i.e, the notification for elections is yet to be announced”

IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 9TH DAY OF APRIL 2021 THE HON’BLE MR.JUSTICE M.NAGAPRASANNA WRIT PETITION No.200735 2021THE DEPUTY COMMISSIONER BIDAR BIDAR 585401 THE SECRETARY URBAN DEVELOPMENT AND MUNICIPAL AFFAIRS VIKAS SOUDHA 4TH FLOOR BENGALURU 560001 THE COMMISSIONER BIDAR MUNICIPALITY BIDAR MOHANRAJ MARKET BIDAR 585401 BY SRI Y.H.VIJAYAKUMAR AAG A W SMT. ANURADHA M. DESAI GA FOR R1 & R2) RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO NOTIFICATION VIDE NO.£ÀCE 94 PÉJADgï 2018 ¨ÉAUÀ¼ÀÆgÀÄ 16.03.2021 AS PER ANNEXURE B TO WRIT PETITION ISSUED BY RESPONDENT NO.2 AUTHORITY ONLY IN RESPECT OF GRANTING RESERVATION AT WARD NO.26 TO ‘GENERAL WOMEN CATEGORY’ FROM ‘BACKWARD CLASS A CATEGORY’ AS PER ITS PREVIOUS KARNATAKA GAZETTEE NOTIFICATION DATED 13.01.2021 AND ETC BIRJU UPADHAYA S O WARANGAL AGED ABOUT 37 YEARS OCC: SOCIAL WORKER R O DINDAYAL NAGAR HYDERABAD ROAD BIDAR 585401 PETITIONER BY SRI JAIRAJ K. BUKKA ADVOCATE) THE CHIEF SECRETARY TO GOVERNMENT GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BENGALURU 560001 THE PRINCIPAL UNDER SECRETARY URBAN DEVELOPMENT DEPARTMENT MUNICIPALITIES AND URBAN DEVELOPMENT AUTHORITIES) ROOM NO.435 4TH FLOOR VIKASA SOUDHA VIDHANA VEEDHI BENGALURU 560001 THE DIRECTORATE OF MUNICIPAL 9TH AND 10TH FLOORS VISVESHWARAIAH TOWER DR. B.R. AMBEDKAR VEEDHI BENGALURU 560001 THE DEPUTY COMMISSIONER BIDAR DISTRICT BIDAR 585401 THE COMMISSIONER CITY MUNICIPAL COUNCIL BIDAR DISTRICT BIDAR 585401 THE COMMISSIONER KARNATAKA STATE ELECTION COMMISSION NO.08 1ST FLOOR K.S.C.M.F. BUILDING ANNEXE CUNNINGHAM ROAD BENGALURU 560052 RESPONDENTS BY SRI Y.H.VIJAYAKUMAR AAG A W SMT. ANURADHA M. DESAI GA FOR R1 TO R4 SRI K.N.PHANEENDRA SENIOR COUNSEL A W SRI AMARESH S. ROJA ADVOCATE FOR R6) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION PASSED BY THE 2ND RESPONDENT VIDE BEARING NUMBER SL.NO.NAAE 94 KMR 2018 BENGALURU DATED 16.03.2021 OF SERIAL NO.32 AND WARD NO.32 WHICH IS AT ANNEXURE M AND ETC. SYED MANSOOR AHMED QADRI S O LATE SYED AHMED QADRI AGE: 55 YEARS OCC: CONSULTING ENGINEER R O H.NO.5 1 110 AHMED BAAG GOLEKHANA BIDAR 585401 BY SRI SACHIN M. MAHAJAN ADVOCATE) PETITIONER THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF URBAN DEVELOPMENT AND MUNICIPAL ADMINISTRATION VIDHANA SOUDHA BENGALURU 560001 THE KARNATAKA STATE ELECTION COMMISSION NIRVACHANA NILAYA SHESHADRI ROAD BENGALURU 560001 REPRESENTED BY ITS COMMISSIONER UNDER SECRETARY THE DEPUTY COMMISSIONER BIDAR 585401 THE ASSISTANT COMMISSIONER BIDAR 585401 THE TAHASILDAR BIDAR 585401 THE CITY MUNICIPAL COUNCIL BIDAR REPRESENTED BY ITS COMMISSIONER BIDAR 585401 BY SRI Y.H.VIJAYAKUMAR AAG A W SMT. ANURADHA M. DESAI GA FOR R1 & R3 TO R5 SRI K.N.PHANEENDRA SENIOR COUNSEL A W SRI AMARESH S. ROJA ADVOCATE FOR R2) RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH NO.RAA.CHU.AA. 45 EUB 2021 ISSUED BY RESPONDENT NO.2 VIDE ANNEXURE G INSOFAR AS IT RELATES TO WARD NOS.5 AND 6 OF CMC BIDAR AND ETC. THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY THE COURT MADE THE FOLLOWING: These writ petitions call in question certain notifications of reservation concerning ward Nos.5 6 26 and 32 all Municipal wards of Bidar City. No.26 W.P.No.200790 2021 concerns ward No.32 and W.P.No.200817 2021 concerns ward Nos.5 and 6 Since all these petitions seek to challenge electoral process in the aforesaid municipal wards of Bidar city they are taken up together and are disposed of by this common judgment. Reddy Sri Jairaj K. Bukka and Sri Sachin M. Mahajan learned counsel for the petitioners and Sri Y.H.Vijaykumar learned Additional Advocate General for the State and Sri K.N.Phaneendra learned Senior counsel and Sri Amaresh S. Roja learned counsel appearing for the State Election Commission. W.P.No.200735 2021 & W.P.No.200790 2021 The petition in W.P.No.200735 2021 calls in question the notification dated 16.03.2021 reserving municipal ward No.26 of Bidar city for ‘General Woman’. The State Government by a notification dated 13.01.2021 notified ward No.26 to be reserved for Backward Class ‘A’ Category. This was a draft notification calling for objections from the stakeholders with regard to reservation made to all the 35 wards of Bidar City Municipality. that no voters of respective wards filed any objection within the time stipulated to the notification dated 13.01.2021. After about 60 days the State Government issued a final notification on 16.03.2021 altering the reservation insofar as it pertains to ward No.26 from ‘Backward Class ‘A’ Category’ to ‘General Woman’. No reasons are indicated in the notification for a change from ‘Backward Class ‘A’ Category’ to that of ‘General Woman’. 6. W.P.No.200790 2021 concerns ward No.32 of Bidar city and raises an identical question of change of reservation from ‘Scheduled Caste’ to ‘General Woman’. The facts in this writ petition are that reservation of ward No.32 made in favour of ‘General subject matter W.P.No.204314 2018 and connected cases wherein a notification changing the reservation from ‘Scheduled Caste’ to ‘General Woman’ was called in question. The said writ petitions were disposed on an undertaking given by learned Additional Government Advocate that the notification impugned would be withdrawn and were in fact withdrawn in terms of the undertaking. Therefore the ward continued to be reserved in favour of ‘Scheduled Caste’. The Government issued a notification on 13.01.2021 reserving ward No.32 favour of ‘Scheduled Caste’ which was in tune with the undertaking given by the Government before this Court in the aforesaid writ petitions. After about 60 days claiming to be issuing a final notification again there being any objections from any stakeholder before last date changed reservation of ward No.32 from ‘Scheduled Caste’ to ‘General Woman’. These writ petitions were filed on 24.03.2021 and 25.03.2021. The learned Government Advocate was directed to accept notice on 26.03.2021 and seek instructions in the matter. The matter was listed again on 31.03.2021 and at the request of the learned Government Advocate the matter was listed on 01.04.2021 on 01.04.2021 again at the request of learned Government Advocate the matter was adjourned to 05.04.2021 and on 05.04.2021 again on the request of the learned Government Advocate was adjourned to 06.04.2021. In W.P.No.200735 2021 on 06.04.2021 for want of instructions from the Government this Court was constrained to pass an interim order on 06.04.2021 notwithstanding the calendar of events being notified on 29.03.2021 by the State Election Commission. The matter was again listed on 08.04.2021 and the learned Additional Advocate General was heard and the matter was adjourned to 09.04.2021. All the respective counsel appearing for the petitioners in these cases and the and K.N.Phaneendra Senior Counsel representing the State Election Commission were all heard at length. After hearing counsels appearing for the parties though this Court finds glaring illegality in the action of the State in varying reservation from draft notification without there being any objections filed by any stakeholder in the final notification since calendar of events are notified by the State Election Commission on 29.03.2021 this Court would hold its hands to interfere with the process of election by interjecting the same in view of the judgment of the Hon ble Apex Court in the case of N.P.Ponnuswami vs. The Returning Officer Namakkal Constituency Namakkal Salem Dist. and others reported in AIR 1952 SC 64. Interference in the process of election once the calendar of events are notified would fall foul of the law laid down by the Hon ble Apex Court in the case of N.P.Ponnuswami which is reiterated by the Hon ble Apex Court in its latest judgment in the case of State of Goa and another vs. Fouziya Imtiaz Shaikh and another reported in 2021 SCC Online SC 211 wherein the Hon ble Apex Court has held as follows: 65. A conspectus of the aforesaid judgments in the context of municipal elections would yield following results. I. Under Article 243 ZG(b) no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands off mandated by the non obstante clause contained in Article 243ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of discretion exercisable by a writ court as to whether an interference is called for when the electoral process i.e notification for elections is yet to be announced. Therefore in my considered view the writ petitions which in effect challenge the calendar of events issued by the State Election Commission cannot be entertained at this stage as it would run counter to the aforesaid judgments of the Hon ble Apex Court. 10. This writ petition concerns ward Nos.5 and 6 of the City Municipality Bidar. The allegation in the writ petition is 750 voters of ward No.5 are shown as voters in ward No.6. The contention of Sri Sachin M. Mahajan learned counsel for the petitioner that it would tilt the balance in favour of particular party which is illegal and right to vote would be taken away by this method of the State issuing notification on 16.03.2021. This writ petition is filed on 06.04.2021 long after issuance of the notification of calendar of events by the Second Respondent State Election An issue came up consideration before the Hon ble Apex Court in the case of The State of Karnataka and others vs. Gunjahalli Nagappa and others reported in1 SCC 204 the Hon ble Apex Court has held as “ State of Karnataka v. Gunjahalli Nagappa 1 SCC 204 11. That takes us the alternative argument advanced by the learned Solicitor General on behalf of the State Government. He contended that in any event even if the impugned order was bad and the election process was liable to be continued from the stage at which it was interrupted the poll could be taken only on the basis of the revised electoral roll which had come into being in the meanwhile in February 1975 and therefore it was necessary for the designated officer to correct the divisional lists of voters so as to bring them in accord with the revised electoral roll. This contention is also without force. It is true that there is no provision in the Act similar to Section 23 sub section 3) of Representation of the People Act 1950 providing that no amendment transposition or deletion of any entry in the list of voters for a division shall be made and no direction for the inclusion of any name in such list of voters shall be given after the last date for making nominations for an election in the division. But the scheme of the Act and particularly Sections 14 and 15 make it clear that it is one list of voters for each division that is contemplated to be in force during the entire process of election. The list of voters is to be prepared for the election and “election” means the entire process consisting of several stages and embracing several steps by which an elected member is returned whether or not it is found poll. Vide N.P. Ponnuswami v. Returning Officer Namakkal ConstituencySCR 218 : 1 ELR 133] . The list of voters must therefore a fortiori remain throughout the process of election. There cannot be one list of voters for determining the eligibility to stand as a candidate and another for determining the eligibility to vote at the same election. That would not only be irrational but would also introduce confusion and uncertainty the election process. Candidates would not know at the time when they file their nominations as to what is the strength and composition of the electorate in the division in which they are contesting the election. They would also be handicapped in canvassing for votes. It would indeed be a strange and anomalous position if there were two or more different lists of voters at different stages of the same election. Sub sectionof Section 14 does not contemplate a list of voters which keeps on changing from time to time during the election process. It deems the electoral roll for the territorial area of the division in force at the relevant time to be the list of voters for the division “for the purpose of the Act” that is for the purpose of election which is the whole process culminating in a candidate being declared elected and not merely polling. The same list of voters is therefore to prevail for all stages in the election. This we find emphasised also in sub section of Section 14 which enacts that every person whose name is in the list of voters referred to in sub sectionshall be qualified to vote at the election of a member for the division to which such list pertains. Sub sectionof Section 15 also points in the same direction. It says that “the list of voters shall be conclusive evidence for the purpose of determining under this section whether the person is qualified or is not qualified to vote or is qualified or is not qualified to be elected as the case may be at an election”. The reference here as a matter of plain grammar is indisputably to the same list of voters which is to be conclusive for both purposes. It is therefore clear interpretation of the provision of the Act that the Legislature did not intend that the list of voters should change from time to time during the process of election and the relevant electoral roll for the purpose of preparation of the list of voters must consequently be taken to be the electoral roll in force at the date when the election process commenced that is the date the calendar of events was published. The same view was taken by a Division Bench of the Mysore High Court in Basavannappa Gadlappa Sankar2 Mys LJ 289]. We are in agreement with that view. The poll in the present case must therefore be taken on the basis of the list of voters for each division prepared with reference to the electoral roll in force on December 7 1974 that being the date on which the calendar of events was published by the Returning Officer. 12. One other question was also raised us namely whether designated officer can be required to rectify the list of voters for a division if it can be shown that the list of voters does not correspond exactly with the electoral roll for the territorial area of the division for example some voters in a particular house in a census block number falling in the division though shown in the electoral roll as such are through inadvertence omitted to be included in the list of voters for the division. It is not necessary for the purpose of the present appeal to decide this question but we may point out that till the election process has commenced by the issue of notice fixing the calendar of events there is no reason why the designated officer should not be entitled to rectify such defect in the list of voters and bring the list of voters in conformity with the electoral roll. But once the calendar of events is published and the election process has begun it is extremely doubtful whether any changes can be made in the list of voters for the purpose of setting right any such defect. We however do not wish to express any final opinion on this point.” Emphasis supplied) 11. Therefore entertaining the writ petition at this stage on the plea of the petitioner would again fall foul of the judgment of the Hon ble Apex Court supra. The learned counsel for the petitioner submits that on 08.04.2021 there is a new voters list drawn up which also is not in conformity with the notification dated 16.03.2021. If that be so it is for the petitioner to submit a representation forthwith to the respondents who would be obliged to consider the same in accordance with law. 12. For the aforesaid reasons I pass the dismissed. W.P.No.200735 2021 and 200790 2021 are is dismissed with observations made hereinabove. Sd

The High Court has the power to transfer the investigation to the CBI even without the consent of the State Government: Tripura High Court

The investigation must be taken away from the range of the local police authorities and be handed over to a Special Investigation Team(SIT) that shall be constituted by this Court. Such an opinion was held by The Hon’ble High Court Of Tripura before The Hon’ble Chief Justice Mr. Akil Kureshi and The Hon’ble Justice Mr. SG Chattopadhyay in the matter of Mrs. Buddhapati Chakma vs. The State of Tripura [WP(Crl.) No.6/2021].  The facts of the case were associated with a petition filed by the wife of Pindulal Chakma. It was reported that Pindulal Chakma, who belonged to Scheduled Tribe(ST)  succumbed to the injuries on 4th November 2020 caused by a violent mob with deadly weapons dated 22nd October 2020. It seemed that the investigation of the FIR filed for the said case was not proceeding properly. It was because the police failed to arrest the accused. The petitioner stated that the administration forced the tribal protestors to sign an agreement that they would not object to the Vivekananda Memorial Club for organising Durga Puja and after Durga Puja the administration will demarcate the lands allotted to the tribals by the Government.  It was further stated that attackers did not allow the injured victims to be admitted at the nearby health centre and due to which they had to be taken to hospital 10 kms away. The counsel representing the petitioner contended that no arrests were made by the police and that the accused were roaming freely created an atmosphere of terror. Whereas, the State, contended that the investigating officer had recorded the statements of the witnesses and arrested  Rakesh Chandra Nath. The houses of Kalyan Nath, Gokul Nath and Gourab Nath were raided but they weren’t found. It was also stated that the compensation to the family was under consideration before the State Government. The submissions stated that the said agreement alleged to be coerced was denied.  After considering all the arguments, The Hon’ble Court held that “… Considering the issues involved and the factual and legal complexities of the investigation, we do not think that this case presents such rare or exceptional circumstances where the CBI should be involved. However, looking to the slow progress in the investigation and the past incidents noted in the earlier portion of this judgment, the investigation must be taken away from the purview of the local police authorities and be handed over to a Special Investigation Team(SIT) that shall be constituted by this Court.” The Hon’ble High Court Of Tripura stated that “… Further prayers of the petitioner for grant of family pension or Government job to the member of the family of the deceased must rest on the outcome of the investigation particularly with respect to commission of offence under SC ST Act and the Government schemes in this regard which are not brought on record by either side. We, therefore, refrain from giving any such directions and leave it open to the petitioner to agitate these prayers in future if the circumstances so justify… Pending application(s), if any, also stands disposed of.”

Page HIGH COURT OF TRIPURA WP(Crl.) No.6 2021 Mrs. Buddhapati Chakma W o Late Pindulal Chakma Village Burshingpara P.O : Laljuri Kanchanpur Police Station North Tripura district Tripura Pin 799270. .. Petitioner(s). Vs. The State of Tripura represented by the Chief Secretary Government of Tripura New Secretariat Building P.S. NCC P.O Secretariat Agartala West Tripura Pin 799010. .. Respondent(s). B_E_ F_O_R_E_ HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON’BLE JUSTICE MR. S G CHATTOPADHYAY For Petitioner(s) For Respondent(s) Mr. Ratan Datta Public Prosecutor. : Mr. Nitesh Kumar Singh Advocate. Mr. S S Dey Advocate General Date of hearing Date of judgment 22nd June 2021. 11th October 2021. Whether fit for reporting : No. Akil Kureshi CJ). JUDGMENT This petition is filed by the wife of one Pindulal Chakma who died on 4th November 2020 due to the injuries caused by a violent mob with deadly weapons in an incident which took place on 22nd October 2020. The deceased belonged to a Scheduled Tribe(ST). An FIR for the incident in question was Page filed before the Kanchanpur Police Station by one Ratneshwar Chakma believing that the investigation is not proceeding properly. Since the police failed to make arrests of the accused persons or to include the provisions of Scheduled Caste and the Scheduled Tribes Act 1989the wife of the deceased has filed this petition which includes following prayers : i) For transferring the investigation to the Central Bureau of Investigation(CBI). perpetrators. ii) To invoke the penal provisions of SC ST Act against the iii) To declare Burshingpara village under Kanchanpur Police Station as an identified area in terms of Section 2(c) of the Scheduled Castes and Scheduled Tribes Rules 1995 To deploy sufficient force in the area to protect the resident members of Scheduled Tribe. v) To provide compensation of Rs.8 25 000 to the petitioner and the dependents of the deceased in terms of the Rules of 1995 and to Page provide other support such as family pension and Government job to one member. the petitioner. vi) To order inquiry against Officer in Charge of Kanchanpur Police Station and Sub Divisional Magistrate(SDM) of Kanchanpur for wilful neglect of duties which led to murder of the husband of 2] Facts leading to this petition can be summarised as under : i) According to the petitioner her husband and his brother were allotted lands under Forest Rights Act 2006 under two separate allotment orders both dated 3rd May 2009. The non tribal residents of the area wanted to grab these lands. Complaints of illegal land grabbing of the tribals by non tribals were also made to the Minister of Tribal Welfare and Forest in November 2018 who had asked the SDM to look into the matter and do the needful. This however did not lead to any resolution. ii) On 19th October 2020 the members of one Vivekananda Memorial Club of Kanchanpur started constructing pandals for Durga Puja on the lands allotted to Pindulal Chakma and his brother without their consent. The family members of the land allottees objected to this activity. On 21st October 2020 wife of deceased Premlal Chakma along with a community leader also approached the Kanchanpur Page Police Station seeking protection against land grabbing by the members of Vivekananda Memorial Club. They were diverted to the SDM upon which a memorandum was presented to SDM on 21st October 2020. However no action was taken on the same. iii) Due to inaction of the SDM at about 10:00 O’clock in the morning of 22nd October 2020 the members of Chakma tribe of the village organized a peaceful protest at Laljuri bridge Kanchanpur. At around 11.30 a.m a mob of about 150 200 members and supporters of Vivekanda Memorial Club who were non tribals attacked the protestors with dao lathi iron rod spade etc. and caused grievous injuries to Pindulal Chakma and one Bikanta Chakma. iv) These attackers did not allow the injured persons to be admitted at nearby Laljuri Hospital and therefore they had to be taken to Machmara Primary Health Centre situated nearly 10 kilometres away from where Pindulal Chakma was referred to Dharmanagar District Hospital. At Dharmanagar District Hospital condition of Pindulal Chakma deteriorated and therefore was referred to ILS Hospital Agartala where he succumbed to his injuries on 4th November 2020. v) An FIR was lodged before Kanchanpur Police Station regarding this incident on 22nd October 2020 in which it was alleged that the mob of about 150 200 persons belonging to Vivekananda Memorial Club had attacked the Page peaceful protestors with weapons such as lathi dao iron rod and caused serious injuries to Bikanta Chakma and Pindulal Chakma and the victims are in serious condition. 3] The petitioner has pointed out that instead of carrying out investigation into the commission of serious offences under Indian Penal Code(IPC) and SC ST Act the administration forced the tribal protestors to sign an agreement that they would not object to the Vivekananda Memorial Club organising Durga Puja and after Durga Puja the administration will demarcate the lands allotted to the tribals by the Government. This document carries the signatures of the Deputy Collector Officer in Charge of Kanchanpur Police Station Sub Divisional Police Officer Block Development Officer etc. as witnesses. Significantly neither Pindulal Chakma nor the wife of his deceased brother are signatories to this so called agreement. 4] The petitioner contends that though the offences punishable under SC ST Act are writ large on the face of the record these provisions have not been invoked. The attackers did not allow the injured victims to be admitted at the nearby health centre and therefore they had to be taken to a hospital nearly 10 kilometres away. The petitioner further points out that the police authorities failed to take any action pursuant to the complaint of Pindulal Page Chakma made on 21st October 2020. In light of these developments the members of the tribal community of the region had also made a representation to the Chief Minister of the State on 6th November 2020. However no action has been taken by the Government so far. 5] The contention of the petitioner and her counsel is that the investigation carried out by the police authorities so far is just eyewash. Even otherwise the members of the Vivekananda Memorial Club are so powerful that the police authorities are unlikely to take any serious action. The members of the Club are roaming freely creating atmosphere of fear and therefore it is necessary to declare the village as an identified area prone to atrocity in terms of Rule 2(c) of the Rules of 1995. The petitioner points out that no compensation in terms of the provisions under the SC ST Act and the Rules made thereunder has also been prayed. It is in this background that the above noted prayers have been made. 6] On the other hand State has filed a reply in which it is stated that upon receipt of the complaint the same was registered as an FIR for commission of offences punishable under Sections 341 326 327 read with Section 34 IPC. The investigating officer has recorded the statements of the witnesses and arrested one Rakesh Chandra Nath. Houses of Kalyan Nath Gokul Nath and Gourab Nath were raided but they were not found. Page Subsequently Gokul Nath was arrested on 5th November 2020. Upon the death of the injured Pindulal Chakma Section 302 IPC was also added. An application was filed before the SDJM Kanchanpur on 13th November 2020 for permission to add the provisions of SC ST Act. The learned Judge however refused to grant such permission by passing an order on 18th November 2020. Two of the accused are still absconding and therefore not yet arrested. Steps are taken for publication of their photographs in local newspapers and TV channels appealing to the public to provide information about their whereabouts. 7] It is stated that the question of providing compensation to the family of the deceased Pindulal Chakma is under consideration before the State Government. The District Magistrate and Collector has recommended for grant of compensation from Chief Minister Discretionary Fund in his report dated 5th March 2021. The District Magistrate and Collector has also written a letter on 9th March 2021 to the Secretary Revenue Department to treat the incident as one of the atrocity on Scheduled Tribes and to provide financial assistance from the Chief Minister Discretionary Fund. On 1st April 2021 Deputy Secretary Revenue also wrote a letter to the Deputy Secretary Home for providing such financial assistance. It is stated that the process for providing financial assistance is under active consideration. Page 8] It is denied that the injured victims were not allowed to be treated at Laljuri Hospital but the deponent has stated that “it is true that the injured was shifted to Machmara Public Health Centre for treatment considering the boiling circumstances of the area and the fact that the incident took place at Laljuri”. 9] The allegation of coercion in executing the so called agreement dated 22nd October 2020 is denied. It is stated that the same was done with the consent of all parties and stakeholders ignoring the fact that neither Pindulal Chakma nor the wife of his deceased brother who are land allottees are signatories to this document. 10] It is stated that ingredients of SC ST Act were not disclosed in the FIR. However subsequently the investigating officer had submitted a petition before the learned Magistrate who refused to grant permission for addition of these provisions. 11] Having heard learned counsel for the parties and having perused the documents on record what emerges is that a serious complaint of members of the tribal community being attacked by a mob with deadly weapons causing serious injuries was reported to the Police Station on 22nd October 2020. The background of the attack as alleged by the petitioner was that the members Page of the non tribal community were trying to disturb the possession of the lands allotted to the tribals by the Government. Attempts were made to construct Pandals on their lands forcibly without their consent. When the members of the tribal community had gathered for a peaceful protest a mob of nearly 150 200 non tribals attacked them causing serious injuries to at least two of the protestors. One of the injured Pindulal Chakma succumbed to the injuries on 4th November 2020. The other injured person also had received serious 12] Though the respondents in the affidavit which has been filed by the Deputy Secretary Home have denied that the injured were not allowed to be treated at nearby Laljuri Hospital as noted have clearly admitted that they were taken to Machmara Public Health Centre for treatment considering tense situation the area. Thus even administration admits that it was not safe for the injured to be treated in the local Public Health Centre and on account of which the injured had to be shifted to a hospital situated at a considerable distance. 13] When two persons had received serious injuries caused with deadly weapons allegedly by a mob of nearly 150 200 persons it is rather strange that the FIR did not include Section 307 IPC. In the retrospect the fact of one Page 1 of the injured succumbing would establish seriousness of the injuries. The attempt on part of the administration to bring about a so called agreement on 22nd October 2020 itself is also rather unusual. In the normal circumstances of minor breach of peace the administration may be well within its right to broker peace between warring groups to achieve more lasting peaceful solution in the locality. However when an offence as serious as one punishable under Section 307 of IPC is disclosed the same cannot be a matter of compromise. The fact that such compromise was hurriedly stitched on the date of the incident itself and which does not carry the signatures of Pindulal Chakma or his family members and the wife of his deceased brother whose patta lands were at the centre of controversy also shows the hollowness of the agreement. As noted the agreement contained the signatures of Government officials and police officers who were expected to enforce law and ensure peace and tranquillity in the region. Instead of carrying out prompt investigation into the allegations of commission of serious offences if they are found trying to bring about a forced agreement the same is bound to send wrong signals and further embolden the perpetrators. 14] The fact that after months of commission of the offence two of the accused cited by the witnesses are still not apprehended is also a matter of serious concern. We also fined that the State administration has not shown Page 1 sufficient seriousness in invoking the provisions under SC ST Act in the investigation. Firstly it was not necessary for the investigating officer to approach the Magistrate for adding the said provisions. If he was of the opinion that after filing of the FIR during the investigation such offences are disclosed he had the power to add the provisions and carryout the investigation if he was competent to do so or to handover the investigation before the competent police officer. At best he owed a duty to the Magistrate to convey addition of the new provisions in the investigation. Having applied before the Magistrate for such purpose the State administration did not carry the order of the Magistrate refusing to grant such permission any further. We have perused the order of the Magistrate dated 18th November 2020 in which for refusing the permission all that has been stated is as under : “ ….. This Court perused the application of the police as regards addition of charges and heard the submissions of Ld counsels. This court finds merits in the submissions of Ld defence counsel and concurs with the arguments. Therefore the prayer of police for adding additional charges under SC ST act is declined. ” 15] The order of the learned Magistrate is devoid of any reasons. Mere recording that he had perused the application of the police officer but he finds merits in the submissions of the defence counsel and concurs with the arguments for rejecting the application of the police is no reason. What were Page 1 the arguments of the counsel of the defence with which the learned Judge concurred and why is not recorded. Such an order should have been challenged by the State administration. In exercise of extraordinary writ jurisdiction we would quash the order in order to grant the relief to the petitioner for addition of the said provisions though formally before us this order is not challenged. This mere technicality would not detain us from granting effective relief to the petitioner in this respect. 16] The State administration has also handled the question of payment of compensation to the wife and dependents of the deceased Pindulal Chakma rather callously. Despite recommendations by the Officials the final decision is not taken for months on end. The right to receive such compensation would flow from the provisions of the SC SC Act and the Rules made thereunder as well as in terms of the scheme framed by the State administration for providing financial assistance from the Chief Minister Discretionary Fund. Financial assistance from such fund will be largely ex gratia in nature nevertheless once the State administration frames a scheme for the purpose of deciding the entitlement of the victims the parameters of the scheme must be applied uniformly and equally to all without discrimination. In this context there would arise a corresponding right in a victim to be treated equally and for being provided financial assistance if under similar circumstances the Page 1 scheme envisages and the Government has granted in the past. Question for declaring the area as identified area is also pending since long without final outcome. Such sensitive and urgent issues cannot brook long delays. 17] Having said all that we do not find this is a case where the investigation should be handed over to the CBI. Undoubtedly the High Court as a Constitutional Court and a Writ Court has the power to transfer such investigation to the CBI even without the consent of the State Government as is laid down by series of judgments of Supreme Court. However such power should be exercised in rare and exceptional cases. Considering the issues involved and the factual and legal complexities of the investigation we do not think that this case presents such rare or exceptional circumstances where the CBI should be involved. However looking to the slow progress in the investigation and the past incidents noted in the earlier portion of this judgment the investigation must be taken away from the purview of the local police authorities and be handed over to a Special Investigation Team(SIT) that shall be constituted by this Court. 18] Under the circumstances the petition is disposed of with following directions : i) Offences punishable under Section 3(2)(v) andof SC ST Act shall be added to the investigation. Page 1 ii) Further investigation shall be carried out by a Special Investigation Team(SIT) which would be headed by the Superintendent of the District assisted by the Dy.S.P who shall work under the guidance and supervision of the S.P. iii) Request for transferring the investigation to CBI is refused. iv) The State administration shall proceed to determine the compensation payable the family of the victim at appropriate stage in terms of the provisions contained in the SC ST Act and the Rules made thereunder in view of the addition of the offences punishable under the SC ST Act. In the meantime an ad hoc amount of Rs.5 00 000 shall be paid over to the petitioner widow of the deceased Pindulal Chakma which payment shall be adjusted towards the compensation that may be found payable under the provisions of the SC ST Act and the Rules made thereunder or under the scheme framed by the State Government for financial assistance from the Chief Minister Discretionary Fund as the case may be. This amount shall be paid within 1(one) month from today. v) The Home Department shall take a final decision without any further delay and in any case within 1(one) month from today with respect to the proposal for declaring the village in question as a disturbed area in terms of Section 2(c) of the SC ST Act. vi) Further prayers of the petitioner for grant of family pension or Government job to the member of the family of the deceased Page 1 must rest on the outcome of the investigation particularly with respect to commission of offence under SC ST Act and the Government schemes in this regard which are not brought on record by either side. We therefore refrain from giving any such directions and leave it open to the petitioner to agitate these prayers in future if the circumstances so justify. vii) The original papers pertaining to the case which are placed before us may be returned to the respondents. Pending application(s) if any also stands disposed of. ( AKIL KURESHI CJ )

Ipso Facto, a delay in conducting a disciplinary investigation does not invalidate it: Supreme Court

The Supreme Court stated that any delay in conducting a disciplinary investigation does not ipso facto render the investigation void. The bench of Justices D.Y. Chandrachud, Vikram Nath, and Hima Kohli stated that the prejudice induced by the delay must be proven and cannot be based on speculation. After it was revealed that some members of a gunda squad arrested a person who later died in police custody, a departmental investigation was launched into a police officer who allegedly formed, supervised, and operated one. A magisterial inquiry into the death in custody was performed, and a report was submitted on October 10, 2014. The Court observed in its appeal that the charge sheet offers a complete exposition of the charges against the officer. “……the first respondent and does not leave the recipient in a measure of doubt or ambiguity over the nature of the case he is required to answer in the disciplinary enquiry. The finding that the charge is vague is palpably in error. The Tribunal declined to quash the charge-sheet by its initial order dated July 28 2016.” The Court stated that the Tribunal would have been right in ordering the investigation to be completed as quickly as possible but instead chose to quash the investigation in its entirety. “Every delay in conducting a disciplinary enquiry does not, ipso facto, lead to the enquiry being vitiated. Whether prejudice is caused to the officer who is being enquired into is a matter which has to be decided on the basis of the circumstances of each case. Prejudice must be demonstrated to have been caused and cannot be a matter of surmise. Apart from submitting that the first respondent was unable to proceed on deputation or to seek promotion, there is no basis on which it could be concluded that his right to defend himself stands prejudicially affected by a delay of two years in concluding the enquiry.”

IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No 51521 Arising out of SLPNo 46520 State of Madhya Pradesh & Anr Akhilesh Jha & Anr JUDGMENT Dr Dhananjaya Y Chandrachud J This appeal arises from a judgment of a Division Bench of the High Court of Madhya Pradesh dated 5 September 2019 The first respondent was posted as Superintendent of Police at Alirajpur from June 2012 to June 2015. It has been alleged that in spite of the instructions issued by the Inspector General of Police Indore Zone to disband the “Gunda squad” the first respondent constituted supervised and operated the squad. It has been alleged that on 1 June 2014 individuals belonging to such a squad acting under the supervision of the first respondent arrested an accused who was taken into custody after being called to the police station by the members of the Gunda Squad. The person who was under interrogation died in custody on 3 June 2014. A magisterial enquiry was conducted into the custodial death and a report was submitted on 10 October 2014. The report contained observations LL 2021 SC 436 against the first respondent on his role in illegally constituting the squad. Challenging the observations made by the JMFC Alirajpur in his report dated 10 October 2014 the first respondent instituted proceedings before the High Court of Madhya Pradesh. By its order dated 2 March 2016 the High Court expunged some of the observations contained in the magisterial report against the first respondent on the ground that they were in violation of the principles of natural justice. On 21 April 2016 the High Court directed that in case any action is initiated against the first respondent on the basis of the magisterial report a proper opportunity of being heard in response to the allegations should be granted to him before drawing any adverse conclusion. On 8 June 2016 a departmental enquiry was convened against the first respondent and a charge sheet was issued. The allegation in the charge sheet was that the first respondent had committed acts of indiscipline and insubordination by not following the instructions issued by his superior officers regarding the disbanding of the Gunda Squad. The first respondent submitted his reply to the charge sheet on 7 July 2016 denying the allegations levelled against him. Soon thereafter he moved the Central Administrative Tribunal 1 at Jabalpur for challenging the charge sheet which was served on him on 8 June 2016. The Tribunal by its order dated 28 July 2016 declined to interfere with the charge sheet but granted an opportunity to the first respondent to initiate appropriate proceedings if a decision adverse to him was taken on the basis of the reply to the charge sheet. The first respondent once again moved the Tribunal for challenging the charge sheet dated 8 June 2016 in OA 5817 on the ground that no decision had been taken following his reply to the charge sheet and that as a result of the LL 2021 SC 436 pendency of the disciplinary proceedings his deputation and promotional avenues had been adversely affected The Tribunal by its order dated 5 January 2018 quashed the charge sheet issued to the first respondent. The following three grounds weighed with the There was a delay of nearly two years The charges were ambiguous and The High Court had expunged the remarks in the magisterial enquiry which was held to enquire into the custodial death The order of the Tribunal was assailed by the appellants before the High Court By its judgment dated 5 September 2019 the Division Bench dismissed the petition affirming the findings of the Tribunal We have heard Ms Ankita Chaudhary Deputy Advocate General appearing on behalf of the appellants and Mr Braj K Mishra Counsel appearing on behalf of the first respondent Assailing the judgment of the Tribunal which has been confirmed by the High Court Ms Ankita Chaudhary submitted that ex facie the charge sheet and the imputations would indicate that the finding of vagueness is unsustainable Counsel submitted that the gravamen of the charge sheet is that the first respondent who was posted as the Superintendent of Police Alirajpur had violated the administrative orders of the Inspector General of Police for disbanding the Gunda Squads and that a person who had been interrogated by the Squad which was constituted operated and supervised by the first respondent died in custody. Counsel submitted that first and foremost the LL 2021 SC 436 expunging of the remarks in the report of the magisterial enquiry would have no bearing on the entitlement of the State to exercise its disciplinary authority over the first respondent. Secondly it was urged that the Tribunal had declined to quash the charge sheet in the first OA which was filed by the first respondent before the Bench at Jabalpur. Having declined to quash the charge sheet at that stage it was not open to the Tribunal to quash it on a second OA on the plea that there was a delay in completing the enquiry. Thirdly Counsel submitted that there was in fact no delay and if there was a requirement for the enquiry to be concluded within a time schedule such a direction could have been issued However there was no justification to quash the enquiry and to obstruct the disciplinary proceedings which have been convened by the State in exercise of its authority over the respondent. On the other hand it has been urged on behalf of the first respondent that the charge sheet is devoid of material particulars including the date on which the instructions for disbanding the Gunda Squads were issued by the Inspector General of Police as well as the specific role alleged to have been performed by the first respondent in the circumstances leading to the alleged death of the person who was under interrogation. Moreover it has been submitted that the delay as a matter of fact caused prejudice to the first respondent since he was deprived of his opportunities of deputation and promotion at par with his other batch mates. Hence it has been urged that the delay in conducting the disciplinary proceeding has caused serious prejudice to the first respondent The charge sheet was issued to the first respondent in exercise of powers conferred by Rule 10 of the All India ServicesRules 1969 on 8 June 2016. The charge sheet which is annexed to the communication issued by the Home Department of the State of Madhya Pradesh contains the LL 2021 SC 436 “You have violated the Rule 03 of All India ServicesRules 1969. The detailed particulars of the aforesaid charges are attached.” The statement of charges has been appended to the charge sheet. The statement of charges indicates that the gravamen of the allegation against the first respondent is that the Inspector General of Police Indore Zone had issued instructions to all Superintendents of Police that no officer working in the District shall constitute a Gunda Squad and if such a Squad is working then it must be dissolved immediately. The incident leading to custodial death took place while the individual was in the custody of Police Station Sorwa of District Alirajpur on 3 June 2014. The statement of imputations states thus “The incident of the death in the police custody happened in PS Sorwa of the District Alirajpur on 03.06.2014. The Superintendent of Police District Alirajpur had sent Subedar K.P Singh Tomar working as the Squad In charge to interrogate the suspect deceased Jhingla in Crime No.39 14 Section 307 IPC of the police Station Sorwa. Subedar Tomar inflicted injuries to the deceased Jhingla by assaulting him during interrogation which led the suspect Jhingla to death. When the aforesaid incident took place the squad in charge Subedar Tomar and other 05 policemen were suspended on 03.06.2014 In the aforesaid incident Subedar K.P. Singh Tomar and his all subordinate employees were appointed as the reserve force in the police control room but Shri Akhilesh Jha the then Superintendent of Police District Alirajpur had been using all these employees regularly as the Gunda Squad while Shri Akhilesh Jha the then Superintendent of Police Alirajpur refused To have constituted Gunda Squad" in Letter No SP Ali Steno 736 14 dated 15.07.2014. In this regard the clarification was sought from the then Superintendent of Police Shri Akhilesh Jha vide letter no. IGP E Ka.F 29 47 45 3 A 14 dated 28.09.2014 of the office.” The statement of imputations contains a reference to the Duty Register as well as the General Diary at the material time. The list of documents annexed to the charge sheet refers to 21 documents on the basis of which the charges were LL 2021 SC 436 intended to be proved On the basis of the above material which has been placed on the record it was impossible to come to the conclusion that the charge against the first respondent is vague or ambiguous. The charge sheet together with the statement of imputations contains a detailed elaboration of the allegations against the first respondent and does not leave the recipient in a measure of doubt or ambiguity over the nature of the case he is required to answer in the disciplinary enquiry. The finding that the charge is vague is palpably in error The Tribunal declined to quash the charge sheet by its initial order dated 28 July 2016. However by a subsequent order dated 5 January 2018 it proceeded to do exactly what it had declined to do by its previous order. The Tribunal purportedly did so on the basis that prejudice had been caused to the first respondent by the denial of an opportunity for deputation or for promotion as a result of the pendency of the proceedings. The line of reasoning which weighed with the Tribunal is plainly erroneous. The Tribunal would have been justified in directing the expeditious conclusion of the enquiry but instead it proceeded to quash the enquiry in its entirety. This in our view was clearly impermissible. Every delay in conducting a disciplinary enquiry does not ipso facto lead to the enquiry being vitiated. Whether prejudice is caused to the officer who is being enquired into is a matter which has to be decided on the basis of the circumstances of each case. Prejudice must be demonstrated to have been caused and cannot be a matter of surmise. Apart from submitting that the first respondent was unable to proceed on deputation or to seek promotion there is no basis on which it could be concluded that his right to defend himself stands prejudicially affected by a delay of two years in concluding the enquiry. The High Court therefore in our view has clearly failed to properly exercise the jurisdiction vested in it by simply affirming the judgment of the Tribunal. The judgment of the Tribunal suffered from basic errors which go to the root of the matter and which have LL 2021 SC 436 been ignored both by the Tribunal as well as by the High Court For the above reasons we allow the appeal and set aside the impugned judgment and order of the High Court dated 5 September 2019. The charge sheet was issued to the first respondent while he was in service and hence the disciplinary enquiry can proceed to its logical conclusion. The disciplinary enquiry should be concluded expeditiously preferably by 31 July 2022. In the event that the first respondent is entitled to the release of any part of his retiral dues including gratuity in consonance with law necessary steps for that purpose shall be taken within a period of two months from the date of this order Pending application if any stands disposed of SECTION IV C S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo(s).4655 2020 Arising out of impugned final judgment and order dated 05 09 2019 in MPN No. 3854 2018 passed by the High Court of M.P. Principal Seat at Jabalpur STATE OF MADHYA PRADESH & ANR. VERSUS AKHILESH JHA & ANR. WITH IA No. 97801 2021 CLARIFICATION DIRECTION Date : 06 09 2021 This petition was called on for hearing today HON BLE DR. JUSTICE D.Y. CHANDRACHUD HON BLE MR. JUSTICE VIKRAM NATH HON BLE MS. JUSTICE HIMA KOHLI Ms. Ankita Chaudhary Dy AG Mr. Mrinal Elker Mazumdar AOR Mr. Manish Yadav Adv Mr. Braj K. Mishra Adv Mr. Joby P. Varghese AOR Mr. Rajneesh Kumar Jha Adv Mr. Nishant Kumar Srivastava Adv Mr. Aby P. Varghese Adv Donna Xavier Adv UPON hearing the counsel the Court made the following O R D E R The appeal is allowed in terms of the signed reportable judgment Pending application if any stands disposed of AR CUM PS COURT MASTER SAROJ KUMARI GAUR Signed reportable judgment is placed on the file LL 2021 SC 436

SCST Act cannot be invoked when the abuse has taken place within four walls : Karnataka High Court

An independent evidence must exist, apart from the oral statements of the victim, in order to convict an accused. The High Court bench consisting of J. H P Sandesh, adjudicated on the matter of State of Karnataka by Whitefield Police Station Bengaluru v. Christopher Ireland & Ors. [Criminal Appeal No. 173/2011], wherein the accused were charged under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The complainant was assaulted by the accused who belonged to Scheduled Caste and Scheduled Tribe. They tore the clothes of the complainant, pushed and pulled her and outraged her modesty and intentionally insulter her referring to her caste and humiliating her publicly. The accused together hence committed various offences punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused claimed trial before the Trial Court and did not plead guilty. The Trial Judge acquitted the accused and hence, the present appeal was filed by the aggrieved appellant. The Prosecution argued that the Trial Court Judge had committed an error as he had failed to consider the evidence put forth. The accused were the family members of the victim’s husband and they had intentionally trespassed into the house of the complainant and abused her. The counsel appearing for the respondent argued that the Trial judge appreciated the contradictions in the cross examinations and realised the discrepancies between the medical evidence and the case of the prosecution, and hence, had rightly acquitted the accused.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF DECEMBER 2020 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL No.173 2011 STATE OF KARNATAKA BY WHITEFIELD POLICE STATION … APPELLANT BY SRI. DIWAKAR MADDUR HCGP) CHIRSTOPHER IRELAND S O LATE E.O. IRELAND BRINE IRELAND S O LATE E.O. IRELAND YUZIN IRELAND S O LATE E.O. IRELAND ALL ARE RESIDING AT R AT NO.200 HAPPY VILLA NEAR PRASHANTH LAYOUT WHITEFIELD BENGALURU. ... RESPONDENTS BY SRI. S. ARMUGHAM ADVOCATE FOR R1 SRI. N. JAGADISH ADVOATE FOR R2 NOTICE TO R3 HELD SUFFICIENT VIDE ORDER DATED 27.11.2018) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND OF CR.P.C. PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT DATED 02.08.2010 PASSED BY THE II ADDL. S.J. AND SPL. JUDGE BENGALURU RURAL 2 DISTRICT BENGALURU IN SPL.C.NO.14 2009 ACQUITTING THE RESPONDENT FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 323 354 READ WITH SECTION 34 OF IPC AND SECTIONS 3(1)(X) ANDOF SC STACT 1989. THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 17.12.2020 THIS DAY THE COURT PRONOUNCED THE FOLLOWING: JUDGMENT This appeal is filed by the State challenging the judgment and order of acquittal dated 02.08.2010 passed Spl.C.No.14 2009 on the file of II Additional Sessions Judge and Special Judge Bengaluru Rural District Bengaluru. The parties are referred to as the complainant and accused Nos.1 to 3 respectively as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court. Heard the learned High Court Government Pleader appearing for the appellant and the learned counsel for respondent No.2. The factual matrix of the case is that on 31.08.2008 at about 8.15. p.m. when the complainant was in her house which situates near Prashanth Layout Whitefield Bengaluru in furtherance of their common intention accused Nos.1 to 3 assaulted her by their hands and also caused bite injuries voluntarily causing simple hurt and the accused persons not being the members of the Scheduled Castes and Scheduled Tribes torn the clothes of the complainant a member of the Scheduled Caste and pushed and pulled her and outraged her modesty and intentionally insulted her referring to her caste humiliating her in public view and thereby accused Nos.1 to 3 committed the offence punishable under Sections 323 and 354 read with Section 34 of I.P.C. and Sections 3(1)(x) and 3(1)(xi) of the Scheduled Castes and Scheduled Tribes Act 1989and 3(1)(xi) of the SCST Act 3. What order Points No.1 to 3: 11. Before considering the oral and other documentary evidence this Court would like to consider the complaint Ex.P.1 under which the law was set in motion. On perusal of the complaint it is alleged that the accused persons came to the house of the victim abused taking her caste name and torn her clothes by dragging her and outraged her modesty. In so far as the motive to the incident is concerned it is stated that a Civil Suit in O.S.No.1084 2004 is pending before the II Additional Civil Judge in which an order of injunction has been granted. Taking advantage of her husband and the children were not there in the house the accused persons trespassed into the house assaulted and caused bite injuries. Hence the action was sought. The complaint was received on 01.09.2008 at 23.10 hours and thereafter the case has been registered. The investigation was conducted and the charge sheet has been filed. The prosecution in order to prove its case examined P.W.1 to P.W.10. P.W.1 who is the victim deposes with regard to the relationship between the parties and also the civil suit pending before the Court. In her evidence she says that when her husband was not there in the house the accused persons came and abused her as “K ¨Á¸ÀÖqïð ªÀÄÄAqÉ J¸ï ¹ J¸ï n ªÀÄÄAqÉ UÉmï Omï ªÀÄÄAqÉ” assaulted her with hands on her abdomen and when they dragged her the blouse torn. Accused Nos.1 and 2 caused bite injuries on her shoulder and also fisted on her abdomen thereafter they ran away from the spot. When her husband came at around 9.30 p.m. she revealed the incident to him. On the same day at about 10.00 p.m. they went to Whitefield Police station and gave oral complaint. She identified her signature on Ex.P1 and Police came and seized the blouse by drawing mahazar in terms of Ex.P2. P.W.1 says that she was taken to Bowring Hospital on 6th day. Though the Police came to her house on the next day to take her to hospital and as she was tired she did not accompany them. She was subjected to cross examination. In the cross examination she admits that she did not make any phone call to her husband so also to P.W.3 since she was not having any telephone connection in the house and also mobile. It is suggested that number of complaints were given against her and her husband and the said suggestion was denied. P.W.1 says that accused persons caused bite injuries and also says that they abused her as ‘bitch’ in English. 12. P.W.2 is the husband of the victim and he was not present at the time of incident. He says that he came to know about the incident only when his wife revealed the same to him at 9.15 p.m. after coming to house. After 3 to 4 days of the incident he took her to Bowring Hospital for treatment. They went to Whitefield police station to lodge complaint on the same day. In the cross examination he admits that there was an appeal in R.A.No.99 2004 05 pending before the Assistant Commissioner. He further admits that on the same day they 10 went to lodge complaint but the Investigating Officer did not record his statement. It is suggested that they caused life threat to the accused persons but he denies the said suggestion and he admits that false complaint has been lodged by the first accused against them. He identifies the complaint and its acknowledgment as Exs.D1 and D2. It is suggested that he requested the accused persons to join along with him to file a case and when they refused to do so a false case has been lodged against them and the same is denied. He also admits that he has not given any statement before the Police that he witnessed the incident in terms of Ex.D3. 13. P.W.3 is the son of P.W.1. In his evidence he says that he came to know about the said incident through his mother who called and informed him. Hence he himself and his wife went to the house of P.W.1. In the cross examination he says that his mother was having Reliance Company mobile through which she called him and informed about the incident. The suggestion was made to this witness that accused No.1 gave the complaint against his mother and father and witness denies the same. He also admits that he has not given any statement before the Police in terms of Ex.D4. 14. P.W.4 A.S.I. Whitefield Police Station registered the case on 01.09.2008 and issued FIR in terms of Ex.P3. In the cross examination he admits the incident was taken place on 31.08.2008 and complaint was given on the next day. He did not conduct any investigation. 15. P.W.5 P.S.I. Whitefield Police Station conducted the further investigation and spot mahazar in terms of Ex.P2 and seized M.O.1. In the cross examination it is suggested that he did not draw any mahazar and the same is denied. It is also suggested that accused Nos.1 and 2 have lodged the complaint and no action was taken. But he claims that the action was taken. It is suggested that accused No.2 was threatened by him and the same is denied. He admits that when he went to the spot he found P.W.1 was tired and apart from that nothing else has been noticed. 16. P.W.6 the mahazar witness claims that Police have conducted the mahazar on 02.09.2008 at about 12.45 p.m. and the Police have seized the blouse of the victim. He identifies his signature in the mahazar as per Ex.P2(c). In the cross examination it is suggested that he went to the spot on 01.09.2008 along with A.S.I. Prem Kumar and the same is denied. He admits that he has not visited the spot on 17. P.W.7 A.C.P. in his evidence says that he took up the further investigation of the case and the injured produced the wound certificate on 09.09.2008. He says that he requested the Tahasildar to issue caste certificates of accused persons and collected the same as per Ex.P5. In the cross examination he admits that he did not record the statement of P.W.1 and so also P.W.2 and P.W.3. He also did not enquire the doctor and not obtained the wound certificate. 18. P.W.8 the Deputy Superintendent of Police in his evidence says that he took up further investigation of the case. After obtaining the caste certificate of P.W.1 in terms of Ex.P6 he filed the charge sheet. In the cross examination he admits that he deputed the staff to apprehend the accused persons but they were not found and hence filed the charge sheet showing the accused persons as absconded. 19. P.W.9 Tahasildar in his evidence says that he seized the Exs.P5 and P6 caste certificates and identifies his signatures on Ex.P5 and Ex.P6. In the cross examination he admits that based on the report of the Revenue Inspector and Village Accountant he gave the report in terms of Ex.P5 and he did not visit the spot. Except Ex.P5 he is not having any other material in respect of the said report. 20. P.W.10 the doctor who treated the injured on 06.09.2008 says that P.W.1 told that on 31.08.2008 the accused persons assaulted her. P.W.1 complains about the pain in her abdomen right hand and found simple injuries. He gave the wound certificate in terms of Ex.P4. It is also his evidence that if any person assaulted with hand and fisted the injuries mentioned in Ex.P4 could be caused. In the cross examination it is elicited that he came to know about the injuries only when P.W.1 told about the assault. He came to know about the pain only on the say of P.W.1. P.W.1 had informed him that she was having pain in her right hand and in the abdomen but not stated anything other than such pain. P.W.1 was also subjected to ultrasound examination where no injuries were found. P.W.10 further says that even after 5 to 6 days also the injuries could be seen. He cannot tell as to whether those injuries mentioned in Ex.P4 are self inflicted or caused by others and also cannot tell in which weapon those injuries were caused. He also admits that unless the person speaks with regard to the injuries which are mentioned in Ex.P4 the same cannot be identified. 21. Having perused the oral and documentary evidence available on record the prosecution mainly relied upon the evidence of P.W.1 and the doctor. In so far as the injuries is concerned this Court has to examine as to whether the evidence of P.W.1 inspire the confidence of the Court. Admittedly though the prosecution cited P.W.2 and P.W.3 as eye witnesses they categorically admits that they have not given the statements in terms of Exs.D3 and D4. It is also evident from the evidence of P.Ws.1 2 and 3 that P.Ws.2 and 3 were not present at the time of the incident. Hence with regard to the incident is concerned the only evidence on which the Court can rely upon is P.W.1. It is the case of the complainant that the accused persons also abused the complainant taking her caste name. On perusal of Ex.P1 the complaint the complainant has not mentioned the specific words used for abusing except stating that the accused persons abused her by taking her caste name as SC ST. But in her evidence before the Court improvement has been made by her stating that the accused persons abused her as “K ¨Á¸ÀÖqïð ªÀÄÄAqÉ J¸ï ¹ J¸ï n ªÀÄÄAqÉ UÉmï Omï ªÀÄÄAqÉ”. 22. First of all the Court has to examine whether the accused persons with an intention to humiliate the complainant uttered those words in order to provoke her to breach the peace. P.W.1 claims that the accused persons abused her by taking her caste name as SC ST except stating that nothing is averred in the complaint and also in her oral evidence. It is important to note that the incident was taken place within four walls of the house and not in the public view. The Apex Court in the recent judgment also held that if the incident is taken place within four walls and no public were present the provisions of the SCST Act cannot be invoked. It is also important to note that the prosecution evidence clearly discloses that there was a civil dispute between the parties and in the complaint also it is mentioned that the injunction order was granted by the Court which has also not been disputed by the accused. It is further important to note that in the cross examination of P.W.1 and P.W.2 both of them says that they went to police station on the same day night but on perusal of the complaint it is lodged on the next day that too at 23.10 hours and there is no explanation with regard to the delay is concerned. P.W.3 who is the son of the victim also claims that P.W.1 and P.W.2 went to the police station on the very same day night. P.W.1 and P.W.2 says that they went to police station on the same day but documentary evidence is contrary to the oral evidence. It is also important to note that the injured was taken to hospital on 06.09.2009 and incident took place on 31.08.2008. But P.W.1 claims that she was tired and hence she did not go to hospital on the day of incident. It is also important to note the allegation made against the accused persons is that they assaulted the victim by their hands. Though the Investigating Officer says that when he visited the spot on the next day he noticed that the victim was tired he did not notice anything else other than that. There is no explanation with regard to belatedly going to the hospital after 6 days of the incident. It is also important to note that in the cross examination of P.W.1 it is elicited that she did not inform either her husband or son over the phone. But P.W.3 who is her son claims that his mother had called and informed him over the phone and she was having Reliance Company mobile. There is contradictions in the evidence of P.Ws.1 and 3 with regard to informing the incident to P.W.3 since P.W.1 says no telephone facility in the house and not having mobile. 24. P.W.2 also admits that when he went home he found P.W.1 sitting. It is the evidence of P.Ws.1 to 3 that the accused persons caused bite injuries on the victim. If really the accused persons had caused the bite injuries those injuries would have been found when P.W.1 was subjected to examination by the doctor P.W.10. In the evidence of P.W.10 it is elicited that he came to know about pain when the complainant disclosed it. P.W.10 categorically admits that unless the injured says about the injuries which have been mentioned in Ex.P4 the same cannot be assessed since those injuries are not visible. It is also important to note that he cannot tell as to whether those injuries are self inflicted or caused by other persons. He cannot also say as to whether those injuries were caused by any weapon. It is the specific evidence that even after lapse of 5 to 6 days of the incident if any injuries are caused they are visible. 25. Having taken note of the evidence of P.W.10 with regard to the very incident is concerned nothing is on record. First of all P.W.1 did not go to the hospital immediately after the incident though she claims that they went to police station on the same day. No case has been registered. It is clear from the perusal of the complaint that the complaint was given on the next day of the incident that too after 24 hours of the incident. It is also important to note that no doubt M.O.1 is seized and the same is torn blouse. In order to analyze whether these accused persons have torn the said blouse there is no evidence except the evidence of the interested witness P.W.1. If really P.W.1 had sustained injuries she ought to have visited the hospital and took treatment immediately after the incident. Only the explanation has given by P.W.1 and P.W.9 that she was tired and hence she did not accompany the Police and that on the next day also the Police came to take her to hospital but she did not accompany the Police. 26. On perusal of Ex.P4 the wound certificate it does not disclose who took her to hospital but only the history of assault by accused persons have been mentioned. P.W.1 had been to hospital on 06.09.2008 at 3.30 p.m. I have already pointed out that the injuries are mentioned in Ex.P4 only on the basis of the statement made by P.W.1. Having taken note of all these discrepancies in the evidence of P.W.1 to P.W.3 they are contrary to each other. In so far as the abuse is concerned there is no mention in the complaint and also that there is no medical evidence to support the claim of the complainant that she was subjected to assault. However in the evidence of P.W.1 she exaggerates and deposed before the Court that she was subjected to surgery to abdomen and showed the same standing in the witness box by pushing her saree to little extent showing surgery marks. But there is no any evidence before the Court that she was subjected to surgery and doctor P.W.10 says nothing except P.W.1 complained about the injuries. It is also not the case of the prosecution that she was subjected to surgery on account of the assault made by the accused persons. 27. Having taken note of all these materials on record and contradictions it is the admitted fact that civil suit is pending between the parties and also complaints are given against each other and admits in the cross examination as Ex.D1 and Ex.D2. It is important to note that there is no dispute with relationship between the parties. P.W.1 categorically says that the accused persons are brothers of her husband and that accused No.2 is the son of her brother in law. 28. Taking into consideration of all these material contradictions and there is no any independent witness with regard to the incident in order to convict the accused there must be an independent evidence before the Court and the prosecution has to prove the case with regard to the incident as well as injuries. The medical evidence of P.W.10 does not corroborate the evidence of P.W.1 and that though P.W.1 claims that she was subjected to assault she did not take the treatment immediately. It is only afterthought the complaint was lodged after 24 hours of the alleged incident. P.W.1 and P.W.2 though claim that on the very same day they went and informed about the incident in the police station there is no material. But it is evident that the complaint was given on the next day on 01.09.2008 at late hours i.e. at 23.10 hours. 29. Having perused and discussed in detail the oral and documentary evidence placed on record though it is contended by the State that P.W.2 and P.W.3 have corroborated the evidence of P.W.1 who is the sole witness and her evidence is sufficient the same does not inspire the confidence of the Court to convict the accused only based upon the evidence of P.W.1. This Court has already pointed out that the evidence of the doctor also not corroborates the evidence of P.W.1 and that P.Ws.2 and 3 were not at the spot on the date of the incident. There are contradictions in the evidence of P.Ws.1 2 and 3 and also that with regard to reporting the incident to her husband and son their evidence is contradictory. The evidence of P.W.1 is also not consistent as she has deposed in exaggeration. The fact that the civil dispute is pending between the parties and an order of injunction was granted is not in dispute. This Court already pointed out that the complaint given by the complainant is very short and nothing is attributed in the complaint about abusing the complainant by uttering specific words by taking her caste name and it is only the improvement in the oral evidence of P.W.1. Hence even though the learned High Court Government Pleader appearing for the State would contend that the evidence of sole witness P.W.1 is sufficient to convict the accused I do not find any such material to convict the accused based on the evidence of P.W.1 alone. If the medical evidence corroborates the evidence of P.W.1 then there would have been 22 force in the contention of the learned High Court Government Pleader appearing for the State. Hence it is not a fit case to reverse the findings of the Trial Court. The Trial Court in detail discussed and has rightly come to the conclusion that the prosecution has not made out the case against the accused. In view of the discussion made above I pass the following: The appeal is dismissed. Sd

While exercising power under Article 227 of the Constitution, the Court is not supposed to re-appreciate facts: High Court of Uttarakhand.

The supreme court had observed in India Pipe Fitting Co. Vs. Fakruddin M.A. Baker and another, that – The scope is limited to an enquiry as to the existence of some perversity or grave error in the order passed by Court or Tribunal that would call for rectification. A single judge bench comprising of Hon’ble Justice Manoj Kumar Tiwari, in the matter of Niyaz & others Vs. Mohammad Hussain & others (Writ Petition (M/S) No. 1096 of 2021), dealt with an issue where the defendant filed a petition under Article 227 of the Constitution against the order passed by learned Additional District Judge in Misc. Civil Appeal filed under Order 43 Rule 1(r) C.P.C. In the present case, the trial court refused to grant a temporary injunction and the defendants were refused from interfering with the possession of the plaintiffs, over the suit property. The court observed that – “temporary injunction is a discretionary relief and this Court while exercising supervisory jurisdiction under Article 227 of the Constitution will not interfere with the exercise of discretion by learned Courts below unless such exercise is patently illegal.”  The court also stated that while exercising power under Article 227 of the Constitution, this Court is not supposed to re-appreciate facts. The court found that the trial court erred in not granting a temporary injunction in their favor since plaintiffs had a prima facie case and balance of convenience was also in their favor. Thereby the Writ petition failed and was dismissed.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ON THE 17TH DAY OF AUGUST 2021 HON’BLE SHRI JUSTICE MANOJ KUMAR TIWARI Writ PetitionNo. 10921 Niyaz & others. ....Petitioners By Mr. Neeraj Garg Advocate) Mohammad Hussain & others. ....Respondents By Mr. Piyush Garg Advocate) This is defendants’ petition under Article 227 of the Constitution against the order passed by learned Additional District Judge Vikasnagar Dehradun in Misc. Civil Appeal filed under Order 43 Rule 1(r) C.P.C. By the said order the order passed by learned trial Court refusing to grant temporary injunction was set aside and the defendants were restrained from interfering with the possession of the plaintiffs over the suit property. is settled position temporary injunction is a discretionary relief and this Court while exercising supervisory jurisdiction 2 under Article 227 of the Constitution will not interfere with the exercise of discretion by learned Courts below unless such exercise is patently illegal. It is well settled by now that while exercising power under Article 227 of Constitution this Court is not supposed to re appreciate facts. The scope is limited to an enquiry as to the existence of some perversity or grave error in the order passed by Court or Tribunal that would call for rectification as observed by Hon’ble Supreme Court in India Pipe Fitting Co. Vs. Fakruddin M.A. Baker and another reported in4 SCC 587. Paragraph no.5 of the said judgment is reproduced below: “5. The limitation of the High Court while exercising power under Article 227 of the Constitution is well settled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts however erroneous those may be. It is well settled and perhaps too late in the day to refer to the decision of the Constitution Bench of this Court in Waryam Singh v. Amarnath where the principles have been clearly laid down as follows: “This power of superintendence conferred by Article 227 is as pointed out by Harries C.J. in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within authority and not for correcting mere the bounds of The same view was reiterated by another Constitution Bench of this Court in Nagendra Nath Bora v. Commissioner of Hills Division and Appeals Assam. Even recently in Bathutmal Raichand Oswal v. Laxmibai R. Tarta dealing with a litigation between a landlord and tenant under Bombay Rents Hotel and Lodging House Rates Control Act 1947 this Court relying on its earlier decisions observed as follows: “If an error of fact even though apparent on the face of the record cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the Legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on Learned Appellate Court has considered all the three relevant factors and has recorded a finding that plaintiffs have a prima facie case and balance of convenience is also in their favour therefore learned trial Court erred in not granting temporary injunction in their favour. Therefore this Court does not find any reason to interfere with the impugned order. In such view of the matter writ petition fails and is dismissed. No order as to costs. MANOJ KUMAR TIWARI J.)

Detention Order cannot be quashed on ground of delay in its execution: High court of Delhi

When the central agencies have passed a detention order of an individual for smuggling activities, such detention order cannot be cancelled merely because there has been a delay in the execution of such an order and the delay does not vitiate the order itself.  This was decided in the case of Harmeet Singh  Vs. Union Of India, Central Economic Intelligence & Ors [W.P.(Crl.) 1166/2020 & Crl.M.A. 10239/2020]  in The High Court Of Delhi by double bench consisting of Hon’ble  Justice Vipin Sanghi and  Hon’ble Justice Rajnish Bhatnagar. The present writ petition was made to assail the Detention Order issued against the petitioner by Respondent – Joint Secretary, COFEPOSA, Government of India under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The facts of the case are that on the basis of certain specific intelligence contraband items such as drones, foreign branded cigarettes etc. were recovered from the petitioner.  When questioned, he admitted he had bought the items to sell in the Indian market and gain profits, and revealed, smuggling similar contraband items into the Indian Territory. The submission advanced by counsel on behalf of the petitioner is that the impugned Detention Order was issued after an inordinate delay of 1 year and 4 months, or about 490 Days, and that this long delay is fatal to the Detention Order, for which reliance was placed on Licil Antony Vs. State of Kerala & Anr, (2014) 11 SCC 326. The Respondents have defended their action, and it is contended that there is no delay in either sending the fresh proposal for detention. They submit that they have been pursuing the matter with utmost diligence, and have been investigating the case against the petitioner with a proactive approach, and no delay has been caused. It was also contended that Consequent upon the forensic examination of the mobile phone of the petitioner which unearthed additional facts, and incriminating materials, a fresh proposal dated 13.03.20 was forwarded by the Sponsoring Authority to the CEIB, Department of Revenue, Ministry of Finance, for preventive detention of petitioner for being a repeat offender. The court observed that prima-facie it could not be concluded that the Detention Order is belated, or that the live-link between the prejudicial activity – on the basis of which the Detention Order had been passed, and the object of detention i.e. the need to detain the petitioner to prevent him from undertaking similar prejudicial activity in future, has been snapped. A Detention Order can validly be assailed even at the pre-execution stage, though on limited grounds. This position was recognized by the Supreme Court in Additional Secretary to Government of India and Others Vs. Smt. Alka Subhash Gadia and Anr, (1992) Supp 1 SCC 496, which enlists some of the grounds on which the Detention Order could be assailed even prior to execution.

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(CRL.) 1166 2020 & CRL.M.A. 10239 2020 HARMEET SINGH Judgment reserved on: 08.12.2020 Judgment delivered on: 16.02.2021 Petitioner Through: Mr. Siddharth Aggarwal Mr. Arjun Dewan Mr. Sowjahnya Shankaran and Mr. Shahryar Khan Advocates UNION OF INDIA THROUGH ITS SECRETARY MINISTRY OF FINANCE DEPARTMENT OF REVENUE CENTRAL ECONOMIC INTELLIGENCE & ORS. Respondent Through: Mr. Amit Mahajan CGSC with Mr. Dhruv Pande Mr. Gitesh Chopra and Mr. Kritagya Kumar Kait Advocates for R 1 and R 2. Mr. Satish Aggarwal Sr. Standing Counsel with Mr. Gagan Vaswani and Mr. Vineet Sharma Advocates for R 3 R 4. HON BLE MR. JUSTICE VIPIN SANGHI HON BLE MR. JUSTICE RAJNISH BHATNAGAR JUDGMENT W.P.(Crl.) NO. 1166 2020 VIPIN SANGHI J. The petitioner has preferred the present writ petition to assail the Detention Order bearing No. PD 12002 05 20 COFEPOSA dated 05.06.2020 issued against the petitioner by Respondent No. 2 Joint Secretary COFEPOSA Government of India under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 would also be arriving with other people via the connecting flight no. KU 381 from Kuwait to Delhi smuggling similar contraband items into the Indian Territory. Consequently on the intervening night of 01.02.19 and 02.02.19 at around 1:30 am the Petitioner and certain W.P.(Crl.) NO. 1166 2020 other passengers namely Amarjeet Singh Saurabh Chopra and Sumit Verma arrived at IGI Airport from Dubai by Kuwait Airways flight No. KU381. While the Petitioner and other passengers were collecting their suitcases from the conveyer belt the Petitioner was taken to Customs Arrival Hall at IGI Airport New Delhi. A detailed examination of the bags belonging to the petitioner was conducted from which the following items were recovered: 112 Benson & Hedges Cigarette dandas kept in checked in Fabric Zipper Baggage having tag No. KU 326359 and 108 Benson & Hedges Cigarette dandas kept in transparent polythene then wrapped with Black colour polythene and one hand bag containing 18 Dandas of Benson & Hedges CigaretteBoarding Pass of Flight No. KU 381 dated 01.02.2019having seat No. 2H Indian Passport No. Z5317414 issued on 16.01.2019. One Vivo Y53 Mobile Phone having Vodafone Sim No. 8860253525 as disclosed by Pax AED 300 02 bottles of Chivas Regal 12 YO whisky. Personal effect old and used W.P.(Crl.) NO. 1166 2020 After effecting recoveries a Panchnama was prepared and total value of Benson & Hedges cigarettes recovered from the Petitioner was Rs. 7 14 000 and not against the present Petitioner. Mr. Gaganjot Singh challenged his detention W.P.(Crl.) NO. 1166 2020 by filing W.P.(CRL.) 1843 2019 which was dismissed by this Court on On 6th April 2019 the Petitioner was released on statutory bail as the Investigating Agency did not file the chargesheet within prescribed period of 60 days. The petitioner was then summoned to appear before Air Customs Superintendent on 22.04.19 when his statement under Section 108 of the Customs Act 1862 was again recorded. Separately Show Cause Notice dated 22.07.19 w.r.t. the seized goods was issued to the petitioner proposing confiscation of the goods and imposing penalty under Section 112 112 and 114AA of the Customs Act 1962. As a part of the investigation the respondents desired to unlock the mobile phone instrument of the petitioner to retrieve the materials documents therefrom. To open unlock the mobile phone instrument of the petitioner the Respondents required the password of the mobile phone belonging to the petitioner which led to issuance of various summons letters to petitioner. The petitioner it appears desired that his mobile phone instrument be opened unlocked in his presence. Consequently notices were issued to him to remain present. The respondents claim that the petitioner did not co operate in the opening unlocking of his mobile phone instrument. It appears that the said instrument was eventually opened unlocked on 20.01.2020 at Mumbai and its forensic examination was conducted. The same led to the recovery of incriminating documents materials and the petitioner was summoned again. His statement was again recorded under W.P.(Crl.) NO. 1166 2020 Section 108 of the Customs Act 1962 on 31.01.20. Thereafter a fresh proposal to preventively detain the petitioner was forwarded by the Sponsoring Authority dated 13.03.2020. On 05 June 2020 the impugned Preventive Detention Order bearing No. PD 12002 05 20 COFEPOSA was issued against the Petitioner by Respondent No.2 under Section 3 of the COFEPOSA Act. 10. Since the petitioner moved this petition at the pre execution stage he sought interim protection against execution of the Detention Order during pendency of this writ petition. We rejected the said application vide our order dated 04.08.2020 observing that the petitioner’s statement under Section 108 of Customs Act 1962 recorded as late as on 31.01.2020 which he claimed was recorded under duress and coercion had never been retracted. Moreover the said statement had not been placed on record. Therefore we prima facie could not conclude that the Detention Order is belated or that the live link between the prejudicial activity on the basis of which the Detention Order had been passed and the object of detention i.e. the need to detain the petitioner to prevent him from undertaking similar prejudicial activity in future has been snapped. 11. At the time of filing of this petition the petitioner’s representation under Section 11 of COFEPOSA was pending consideration with the Detaining Authority. On 28.09.20 we were informed that the reason for not considering the representation was the fact that the petitioner had not been taken into custody. It was stated that till the time he is not taken into custody his representation would not be decided. The petitioner placed reliance on the decision of a Division Bench of this Court in Mansuk W.P.(Crl.) NO. 1166 2020 Chhagan Lal Bhatt Vs. Union of India and Anr. 1994DRJ317 which was subsequently relied upon in Bhavna Mehra Vs. Union of India and Ors. W.P.(Crl) 274 2009 decided on 25.5.2009. This Court has taken the view in the aforesaid decisions that the consideration of the representation cannot be withheld by the Detaining Authority for such like reasons. Even otherwise on a reading of Section 11 of the COFEPOSA Act 1974 it does not emerge that the consideration of the representation made by the detenu would be subject to his being detained or his surrendering in pursuance of the Detention Order. On 28.09.20 we directed the Respondents to consider the representation and place the result of the said consideration before us on the next date of hearing. On 07.10.20 we were informed that the said representation had been rejected and the rejection was placed on record. Petitioner‟s Submissions: 12. The only submission advanced by Mr. Aggarwal on behalf of the petitioner is that the impugned Detention Order was issued after an inordinate delay of 1 year and 4 months or about 490 Days and that this long delay is fatal to the Detention Order. The contraband items found in the petitioner’s belongings were seized on the intervening night of 1st and 2nd February 2019 whereas the present Detention Order was issued only on 5th June 2020. The initial proposal for detention of the petitioner was sent to the Joint Secretary COFEPOSA on 25th February 2019. That proposal was not accepted as the materials placed by the Sponsoring Authority were not found to be sufficient to justify the petitioner’s preventive detention. It is argued that the delay in the passing of a Detention Order is fatal to the W.P.(Crl.) NO. 1166 2020 consequent detention as the nexus live link between the prejudicial activity and the purpose of detention snapped due to the delay which in this case is more than 16 months. 13. Reliance is placed on Licil Antony Vs. State of Kerala & Anr 11 SCC 326. Our attention is also drawn to Rajinder Arora versus Union of India 4 SCC 796 wherein the Hon’ble Supreme Court had quashed the Detention Order as there was delay of approximately 10 months. 14. Mr. Aggarwal further submits that the only justification now offered by the respondents is that they could unlock the mobile phone instrument of the petitioner only in January 2020. The forensic examination of the mobile phone was conducted only on 20.01.2020 after being seized from the petitioner on the night of 1st February 2019. The submission of Mr. Aggarwal is that the inordinate time taken by the respondents to unlock the mobile phone instrument of the petitioner when that facility was available with them cannot be taken benefit of by the respondents to justify the immense delay. There is no explanation as to why steps were not taken earlier to open unlock the mobile instrument of the petitioner. Reliance is placed on Sumita Dev Bhatacharya Vs. Union of India and Ors CriLJ4287 where it was held: “59. …. The petition must succeed even on the ground of not passing the Detention Order for a period of 8 months after the proposal was accepted on 28.6.2013. The sole purpose of passing the Detention Order is that the live link between the occurrence and the order should not become stale. By the time the proposal is sent it is deemed that the investigation is complete which is W.P.(Crl.) NO. 1166 2020 enough to detain a person and any additional investigation which may have been carried out cannot be a ground to explain the delay.” 15. Mr. Aggarwal submits that since the initial proposal for detention was sent on 25th February 2019 the Sponsoring Authority i.e. Office of the Commissioner Customs IGI Airport T 3 New Delhi believed that they had enough material to seek detention of the petitioner under the Act and therefore there cannot be any justification for the delay between the proposal of detention and the impugned Detention Order. 16. Mr. Aggarwal further submits that admittedly the Sponsoring Authority had all the incriminating material by 31st January 2020. As per the counter affidavit a fresh proposal for detention was forwarded on 13th March 2020 but the approval was only received on 19th May 2020. However there is no explanation for delay of one month in initiating the proposal. The nationwide lockdown on account of COVID 19 cannot be used as a justification for delay in matters pertaining to personal liberty. In this regard reliance is placed on judgement of the Supreme Court in S.Kasi versus StateRespondent‟s Submissions: 17. The Respondents have defended their action and it is contended that there is no delay in either sending the fresh proposal for detention in January 2020 or in its consideration. They submit that they have been pursuing the matter with utmost diligence and have been investigating the case against the petitioner with a proactive approach and no delay has been caused. Mr. Mahajan counsel for the Respondent 1 & 2 also submits that since the W.P.(Crl.) NO. 1166 2020 challenge to the Detention Order is at pre execution stage firstly the aspect of delay in passing the Detention Order should not be gone into and secondly in any event there is no merit in the said pleas of the petitioner. 18. The timeline of the developments in the matter from the initial stage of recovery of contraband items to the last stage of the issuance of the impugned Detention Order is sought to be explained by the Respondents. The proposals of Sponsoring Authority for the preventive detention of the petitioner herein under the COFEPOSA Act 1974 were initially sent in February 2019. They were considered by the Central Screening Committee CSC) in its meeting held on 26.02.2019 and the Sponsoring Authority was apprised of the need to gather further evidence connected with the offences of smuggling of contraband items by the petitioner so as to consider the proposal in future. In this regard letters dated 7.3.2019 23.4.2019 31.5.2019 6.9.2019 5.12.2019 and 2.1.2020 were sent to the Sponsoring Authority. The proposal was reconsidered by CSC in its meeting held on 05.02.2020 for its disposal and that proposal was disposed off. The disposal was communicated to the Sponsoring Authority vide letter dated 13.2.2020. Thus the said initial proposal did not fructify into a Detention 19. Consequent upon the forensic examination of the mobile phone of the petitioner which unearthed additional facts and incriminating materials a fresh proposal dated 13.03.20 was forwarded by the Sponsoring Authority to the CEIB Department of Revenue Ministry of Finance for preventive detention of petitioner for being a repeat offender for indulging in smuggling of foreign currency cameras cigarettes etc. The approval of the Chief W.P.(Crl.) NO. 1166 2020 Commissioner of CustomsNew Delhi for the preventive detention of the petitioner was delayed on account of nationwide lockdown and finally the said approval came on 19.05.20. This proposal of Sponsoring Authority was then considered by CSC in its meeting held on 29.05.2020. Thereafter the proposal was examined by Detaining Authority with reference to the recommendation of the CSC. After a careful consideration of the facts and circumstances of the case the nature of activities the material collected the propensity and potentiality of the petitioner to indulge in further smuggling activities the Detaining Authority passed the Detention Order on 05.06.2020. 20. Mr. Mahajan submits that the petitioner had not cooperated in the investigation and consequently forensic examination of his mobile phone was delayed. He submits that it is apparent from the conduct of the petitioner that since the date of his voluntary statement given on 22.04.2019 till the forensic examination of his phone on 20.01.2020 the major reason for the delay caused in the investigation was due to non cooperation of the 21. Mr. Mahajan submits that if the time lag in passing and executing the Detention Order is reasonably explained by the Respondents then the same cannot be called “delay” and it cannot be a ground for quashing a Detention Order. Reliance is placed on the judgement in Union of India v. Muneesh Suneja 3 SCC 92 where the Hon’ble Supreme Court has held that an order of detention cannot be quashed either on the ground of delay in passing the impugned order or delay in executing the said order since mere delay either in passing the order or execution thereof is not fatal if it stands W.P.(Crl.) NO. 1166 2020 reasonably explained. The Supreme Court further observed in Licil Antony supra) that even in a case of undue delay between the prejudicial activity and the passing of Detention Order the order of detention is not vitiated if the delay is satisfactorily explained. The following extract of the judgment in Licil Antonyis relied upon by the respondents: “7. Mr Raghenth Basant learned counsel for the appellant submits that there is inordinate delay in passing the order of detention and that itself vitiates the same. He points out that the last prejudicial activity which prompted the detaining authority to pass the order of detention had taken place on 17 11 2012 whereas the order of detention has been passed on 6 5 2013. He submits that delay in passing the order has not been explained. 8. Mr M.T. George learned counsel appearing on behalf of the respondents does not join issue and admits that the sponsoring authority wrote about the necessity of preventive detention in its letter dated 17 12 2012 for the prejudicial activity of the detenu which had taken place on 17 11 2012 and the order of detention was passed on 6 5 2013 but this delay has sufficiently been explained. He submits that mere delay itself is not sufficient to hold that the order of detention is illegal. 9. We have given our thoughtful consideration to the rival submissions and we have no doubt in our mind that there has to be a live link between the prejudicial activity and the order of detention. COFEPOSA intends to deal with persons engaged in smuggling activities who pose a serious threat to the economy and thereby security of the nation. Such persons by virtue of their large resources and influence cause delay in making of an order of detention. While dealing with the question of delay in making an order of detention the court is required to be circumspect and has to take a pragmatic view. No hard and fast formula is possible to be laid or has been laid in this regard. However one thing is clear that in case of delay that has to be satisfactorily explained. After all the purpose of preventive W.P.(Crl.) NO. 1166 2020 detention is to take immediate steps for preventing the detenu from indulging in prejudicial activity. If there is undue and long delay between the prejudicial activity and making of the order of detention and the delay has not been explained the order of detention becomes vulnerable. Delay in issuing the order of detention if not satisfactorily explained itself is a ground to quash the order of detention. No rule with precision has been formulated in this regard. The test of proximity is not a rigid or a mechanical test. In case of undue and long delay the court has to investigate whether the link has been broken in the circumstances of each case. 11. Further this Court had the occasion to consider this question in Rajinder Arora v. Union of India4 SCC 796 :2 SCC 418] in which it has been held as follows: “20. Furthermore no explanation whatsoever has been offered by the respondent as to why the order of detention has been issued after such a long time. The said question has also not been examined by the Authorities before issuing the order of detention. 21. The question as regards delay in issuing the order of detention has been held to be a valid ground for quashing an order of detention by this Court in T.A. Abdul Rahman v. State of Kerala 1989) 4 SCC 741 : 1990 SCC76] stating:„10. The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast that would be rule can be precisely formulated applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical W.P.(Crl.) NO. 1166 2020 test by merely counting number of months between the offending acts and the order of detention. However when there is undue and long delay between the prejudicial activities and the passing of detention order the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned when called upon to answer and further the court has to investigate whether the causal connection has been broken circumstances of each case. throw considerable doubt on 11. Similarly when is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu such a delay would genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial 22. The delay caused in this case in issuing the order of detention has not been explained. In fact no reason in that behalf whatsoever has been assigned at all.” 18. From what we have stated above it cannot be said that there is undue delay in passing the order of detention and the live nexus between the prejudicial activity has snapped. As observed earlier the question whether the prejudicial activity of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live link between the prejudicial activity and the purpose of detention is snapped depends on the facts and circumstances of each case. Even in a case of undue or long delay between the prejudicial activity and the passing of detention order if the same is satisfactorily explained and a tenable and reasonable explanation is offered the order of detention is not vitiated. We must bear in mind that W.P.(Crl.) NO. 1166 2020 distinction exists between the delay in making of an order of detention under a law relating to preventive detention like COFEPOSA and in complying with procedural safeguards enshrined under Article 22(5) of the Constitution. In view of the factual scenario as aforesaid we are of the opinion that the order of detention is not fit to be quashed on the ground of delay in passing the same. the delay 19. The conclusion which we have reached is in tune with what has been observed by this Court in M. Ahamedkutty v. Union of India2 SCC 1 : 1990 SCC258] . It reads as follows: SCC p. 8 para 10) “10. … Mere delay in making of an order of detention under a law like COFEPOSA Act enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation the courts should not merely on account of the delay in making of an order of detention assume that such delay if not satisfactorily explained must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the court finds that the grounds are stale or illusory or that there was no real nexus impugned order of detention. In that case there was no explanation for the delay between 2 2 1987 and 28 5 1987 yet it could not give rise to legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the order of detention.”(emphasis supplied) the grounds and W.P.(Crl.) NO. 1166 2020 22. Mr. Mahajan submits that the Supreme Court in Licil Antonywas mindful of the ratio laid down in Rajinder Aroraand yet held that delay in passing of Detention Order would not be fatal. He also submits that the facts of Rajinder Arorawere completely different from the present case since in the said case the Detention Order was quashed on the ground of delay in execution of the Detention Order for which no reasonable explanation was tendered and not on the ground of delay in passing of the order. 23. Reliance is also placed by Mr. Mahajan on T.A. Abdul Rahman vs State of Kerala 4 SCC 741 where the Supreme Court held that: “10. The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However when there is undue and long delay between the prejudicial activities and the passing of detention order the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case.” emphasis supplied) W.P.(Crl.) NO. 1166 2020 Analysis and Conclusion: 24. We have given our thoughtful consideration to the entire matter. We have examined the submissions made the documents and case law relied upon by learned counsels. 25. A Detention Order can validly be assailed even at the pre execution stage though on limited grounds. This position was recognized by the Supreme Court in Additional Secretary to Government of India and Others Vs. Smt. Alka Subhash Gadia and Anr Supp 1 SCC 496 which enlists some of the grounds on which the Detention Order could be assailed even prior to execution. Those grounds are illustrative and not exhaustive as held in Deepak Bajaj v. State of Maharashtra and Another 16 SCC 14. At the same time the Supreme Court in State of Maharashtra & Ors. v. Bhaurao Punjabrao Gawande3 SCC 613 noted: “As a general rule an order of detention passed by a Detaining Authority under the relevant “preventive detention” law cannot be set aside by a writ court at the pre execution or pre arrest stage unless the court is satisfied that there are exceptional circumstances specified in Alka Subhash GadiaSCC 496 : 1992 SCC301] . The Court must be conscious and mindful of the fact that this is a “suspicious jurisdiction” i.e. jurisdiction based on suspicion and an action is taken “with a view to preventing” a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a court of law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a writ court with extreme care caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order.” W.P.(Crl.) NO. 1166 2020 26. Mr. Siddharth Agarwal learned counsel on behalf of the petitioner has argued that there is inordinate and unexplained delay in passing of the Detention Orders. In support of this submission our attention is drawn to the fact that the petitioner was intercepted on the intervening night of 1st and 2nd February 2019 and as per the arrest memo he was apprehended on 3rd February 2019. Yet the Detention Order came to be passed only on 05.06.2020. On the other hand Mr. Mahajan argues that firstly the issue of delay cannot be gone into at this pre execution stage and secondly that if the apparent delay time has been satisfactorily been explained then quashing of the Detention Order is not warranted. In Muneesh Suneja the Supreme Court after noticing Alka Subhash Gadiaheld as follows: “7. ... ... ... This Court has been categorical that in matters of pre detention cases interference of court is not called for except in the circumstances set forth by us earlier. If this aspect is borne in mind the High Court of Punjab and Haryana could not have quashed the order of detention either on the ground of delay in passing the impugned order or delay in executing the said order for mere delay either in passing the order or execution thereof is not fatal except where the same stands unexplained. In the given circumstances of the case and if there are good reasons for delay in passing the order or in not giving effect to it the same could be explained and those are not such grounds which could be made the basis for quashing the order of detention at a pre detention stage. Therefore following the decisions of this Court in Addl. Secy. to the Govt. of India v. Alka Subhash GadiaSCC 496 : 1992 SCC 301] and Sayed Taher Bawamiya v. Jt. Secy. to the Govt. of India8 SCC 630 : 2001 SCC56] we hold that the order made by the High Court is bad in law and deserves to be set aside.”W.P.(Crl.) NO. 1166 2020 28. At this stage we may take note of the timeline of events as produced before us by the Respondents 1 & 2 in their Counter Affidavit. The recovery of contraband items from the petitioner and co accused persons was done on the intervening night of 1st and 2nd February. On 3rd February Respondent No. 3arrested the petitioner. The petitioner was released on statutory bail on 6th April 2019 due to non filing of chargesheet within 60 days. The petitioner was then summoned to appear before Air Customs Superintendent on 22.04.19 where the Statement of the petitioner under Section 108 of the Customs Act 1862 was recorded. The Respondents needed the password of the mobile phone belonging to the petitioner to be able to unlock the same and retrieve any relevant and incriminating material which would further establish his involvement in the acts of smuggling. This led to issuance of summons to the petitioner dated 21.05.19 but the petitioner failed to appear. Hence summons dated 06.06.19 was issued in response to which the petitioner appeared on 12.06.19. The petitioner appeared but claimed that he did not remember the password of his mobile phone. Hence forensic examination of the same could not be conducted. 29. Since the password to the mobile phone belonging to the petitioner could not be recovered efforts were made to find a laboratory capable of unlocking and conducting forensic examination of the contents of the petitioner’s mobile phone even in absence of the password. Letter dated 20.11.19 was issued informing the petitioner about the forensic examination to be conducted at DRI Mumbai on 25.11.19. The letter remained unserved since the petitioner could not be found at his given address. After the petitioner gave his new address another letter dated 17.01.20 was issued W.P.(Crl.) NO. 1166 2020 informing him about the date of the forensic examination i.e. 20.01.20. The letter also mentioned that in case the petitioner or his authorized representative does not appear on the said date it will be presumed he is not willing to participate in the same. The petitioner failed to turn up and forensic examination of his mobile phone was finally conducted on 20.01.20. The documents materials and the petitioner was summoned again and his statement was recorded under Section 108 of the Customs Act 1962 on 30. Consequently a fresh proposal dated 13.03.20 was forwarded by the Sponsoring Authority to the CEIB Department of Revenue Ministry of Finance for preventive detention of petitioner for being a repeat offender indulging in smuggling of foreign currency cameras cigarettes etc. The Chief Commissioner of Customs New Delhi could not grant his approval on account of nationwide lockdown and finally gave its approval on 19.05.20. This proposal of the Sponsoring Authority was considered by CSC in its meeting held on 29.05.20. Thereafter the proposal was examined by Detaining Authority with reference to the recommendation of the CSC. The impugned Detention Order came to be finally passed on 05.06.20 by the Detaining Authority. 31. On a careful examination of all the facts present before us we find that the aforesaid timeline satisfactorily explains and justifies the time taken by the Respondents in undertaking investigation which finally culminated in passing of the impugned Detention Order. The initial proposal sent by the Sponsoring Authority in February 2019 was not found sufficient to justify W.P.(Crl.) NO. 1166 2020 the petitioner’s detention under Section 3 of the COFEPOSA Act. The Sponsoring Authority therefore continued with its efforts to conduct further investigation and for that purpose retrieval of the contents of the mobile phone of the petitioner was crucial. Vide his letter dated 23.04.19 the petitioner desired that the forensic examination of his phone be done in his presence. Vide summons dated 21.05.19 he was asked to appear on 30.05.19. He did not appear. Another summons dated 06.06.19 was issued on 12.06.19. He appeared on 12.06.19. However the petitioner did not cooperate. He did not provide the code to unlock his mobile phone on his own. He feigned ignorance and loss of memory with respect to the password code that left the respondents with no other option but to look for avenues to unlock the mobile phone even without the petitioner providing the password code. The respondents have stated that ultimately it was found that the mobile phone of the petitioner could be unlocked at the Cyber Laboratory of DRI Mumbai. The respondents have stated that DRI Mumbai is not a part of Air Customs. Thus the submission that the respondents ought to have been aware of the existence of its facility at DRI Mumbai to unlock the mobile phone of the petitioner cannot be accepted on the basis of assumptions that the petitioner would like us to draw. The petitioner was sent a letter dated 20.11.2019 informing that Forensic Examination of his mobile phone would be conducted at DRI Mumbai on 25.11.2019. That letter could not be served on the petitioner since he was not found residing on the given address. The fact that the petitioner did not intimate the change of his address or his definite address where he could be found itself shows that the conduct of the petitioner was evasive. The petitioner was sent another letter dated 17.01.2020 at his new address in Ramesh Nagar W.P.(Crl.) NO. 1166 2020 informing him that forensic examination of his mobile phone would be undertaken at DRI Mumbai on 20.01.2020. He was put to notice that in case he did not appear either himself or through his authorized representative the forensic examination of his mobile phone would be conducted in the presence of other witnesses. Despite receipt of this notice the petitioner failed to appear in the office of the DRI Mumbai and therefore the forensic examination got conducted in the presence of other witnesses on 20.01.2020. In case the petitioner was really interested in participating in the forensic examination he should have appeared at DRI Mumbai on 20.01.2020. His non appearance on that day and non appearance of even his authorized representative shows that the endeavor of the petitioner was merely to drag the matter and delay the forensic examination of his mobile phone for as long as it could be done. Thus the delay in the forensic examination of the petitioner’s mobile phone is primarily attributable to the petitioner and not to the respondents. We therefore reject the submission of the petitioner that there was any unexplained delay on the part of the respondents in the forensic examination of his mobile phone between 1 2.02.2019 and 20.01.2020. 33. The fresh proposal for preventive detention of the petitioner was forwarded on 13.03.2020 by the Sponsoring Authority to the CEID Department of Revenue Ministry of Finance. Considering the fact that the forensic examination of the petitioner’s mobile phone was undertaken on 20.01.2020 whereafter the documents retrieved therefrom would have been studied and analyzed in our view it cannot be said that there was any W.P.(Crl.) NO. 1166 2020 inordinate delay in sending the fresh proposal by the Sponsoring Authority for the petitioner’s preventive detention. The respondents have explained that after the proposal was sent consideration of the same by the Central Screening Committee was delayed due to the nation wide Lockdown on account of the Covid 19 Pandemic. The proposal was approved by the CSC on 29.05.2020 and the Detaining Authority after careful consideration of the facts and circumstances of the case and the material placed before it passed the Detention Order on 05.06.2020. In view of this prevalent circumstance in our view it cannot be said that there was inordinate delay in consideration of the matter by the CSC or even by the detaining authority. 34. We are also of the view that in the facts and circumstances of this case it cannot be concluded that the livelink between the prejudicial activity in which the petitioner was found involved on 1 2.02.2019 and the purpose and object of detention when the detention order was passed on 05.06.2020 was broken. Mere passage of time between the date of the prejudicial activity and the date on which the detention order came to be passed when the said passage of time has been sufficiently explained by the respondents cannot lead to the definite conclusion with regard to the snapping of the nexus between the two. 35. Mr. Agarwal has sought to rely upon the judgement of Sumita Dev Bhatacharyawhere this court had proceeded to quash the Detention Order on the ground of gross delay in passing of the Detention Order since the delay remained to be unexplained from the counter affidavit and submission of the Respondent Authorities. There cannot be any hard and fast rule in relation to the time period within which the order of detention W.P.(Crl.) NO. 1166 2020 should necessarily be passed from the date of discovery of the continued involvement of the detenue in the prejudicial activity. Each case would have to be examined on its own merits both in relation to the involvement of the detenue proposed detenue its nature and scale the period for which the detenue proposed detenue is involved in the prejudicial activity and the explanation furnished by authorities concerned for the time lapse between the date of the discovery of prejudicial activity and the date of the passing of the Detention Order. A perusal of paragraph 58 of the decision in Sumita Dev Bhatacharya shows that the Court found that in that case the respondents were “blissfully silent with regard to the delay in passing the order of detention …”. That cannot be said about the present case. If the case of the respondents is to be accepted and we have no reason to reject the same at this stage in these proceedings the petitioner is a part of the same group syndicate which consists of his brothers and others who are involved in smuggling of goods from overseas. According to the respondents the seizure made from the petitioner and his associates on 1 2.02.2019 was valued at over Rs.1.09 crores. The respondents have also stated on record that the petitioner is a habitual offender. He had been arrested by the Officers of the DRI on 03.09.2016 while attempting to smuggle foreign currency out of India equivalent to Rs. 1.86 Crores. He was granted bail subject to conditions. He had threatened the Investigating Officer and bail was cancelled by the Court. In the adjudication proceedings currency amounting to Rs. 37 32 450 was confiscated absolutely and penalty was imposed upon the petitioner and his brother. Prosecution has already been filed in that case booked by DRI on 07.08.2020. When one looks at the fact that the petitioner was found to be W.P.(Crl.) NO. 1166 2020 involved in similar prejudicial activity in the year 2016 and again in February 2019 that is over a period of three years there is no reason to assume that the petitioner would not indulge in similar activity after his involvement discovered in February 2019. This also shows that the petitioner is habituated and a hardened violator of laws relating to customs. 36. The petitioner also cannot take shelter of the argument regarding the time lapse between the detention order passed against his brother Mr. Gaganjot Singh and the detention order passed against himself. The brother of the petitioner is purported to be the kingpin of the smuggling ring which allegedly caused immense economic loss to the country. The CSC and the Detaining Authority found the evidence against him to be sufficient to proceed against him in 2019 itself which resulted in the passing of the Detention Order dated 11.03.19 against him. To justify the preventive detention of the petitioner in the assessment of the Detaining Authority the Respondents had to collect evidence against the present petitioner including recovering the relevant data from his mobile phone instrument which took considerable time for reasons attributable primarily to the petitioner himself. In our recent decision in Mohd. Nashruddin Khan v. Union of India Ors W.P.(CRL). Nos. 786 2020 decided on 11.09.20 we have rejected similar arguments on behalf of the petitioners relying on Licil Antony supra) and Muneesh SunejaNO. 1166 2020 thereafter by consideration of the said proposal firstly by the Central the Detaining Screening Committee and Authority. The time lapse in our view is not such as to lead to the inference that the live link between the prejudicial activity of the petitioners which was discovered in April 2019 and the object of detention namely to prevent them from indulging in such prejudicial activity stood snapped. Pertinently it is not the case of either of these petitioners that they have discontinued their ostensible business of dealing in gold and gold jewellery. In our view the observations in Muneesh Suneja is attracted in the facts of these cases. We also agree with the submission of Mr. Mahajan that petitioners‟ reliance on Rajinder Arora is misplaced for the reasons advanced by Mr. Mahajan and recorded hereinabove. Therefore we emphasis supplied) reject this submission of Mr. Chaudhri.” 38. The above mentioned reasoning is squarely applicable to the present case as well. For the aforesaid reasons we do not find any merit in the assertions of the petitioner. We accordingly dismiss the petition leaving the parties to bear their respective costs. FEBRUARY 16 2021 RAJNISH BHATNAGAR) W.P.(Crl.) NO. 1166 2020

It is settled law that even the High Courts in exercise of their equity jurisdiction without applying the doctrine of prospective over-ruling, indisputably can grant a limited relief : Delhi High Court

When a candidate gets selected for admission or for appointment to a post on the basis of his own merit and without availing any relaxations, then his selection would not be counted against the reserved post as upheld by the High Court of Delhi through the learned bench lead by Justice Manmohan in the case of Hemant Pokhriyal v. Staff Selection Commission & Ors. (W.P.(C) 4982/2021 & C.M.No.15269/2021) The brief facts of the case are that a writ petition has been filed challenging the selection procedure of the respondents for the post of Constable (GD) in the Central Armed Police Forces (CAPFs), NIA, SSF and Rifleman (GD) in Assam Rifles insofar as it debars a candidate from the reserved category from being adjusted against the General vacancy if the candidate has availed any relaxation irrespective of the fact that such relaxation is also available to the General category candidates. Learned Counsel for the petitioner states that the petitioner belongs to Other Backward Class from the border guarding district of Uttarkashi. He qualified in the computer based examination and was shortlisted for the Physical Efficiency Test (PET) and Physical Standard Test (PST) in which he availed the relaxations in the standards of height and chest as available to all the male candidates falling in the categories of Garhwalis, Kumaonis, Dogras, Marathas and candidates belonging to the States of Assam, Himachal Pradesh and Jammu and Kashmir. In the final result, the Petitioner was not selected in either of the categories. He was not accommodated in the un-reserved category because he had availed relaxation in the measurement of height and chest during the Physical Standard Test (PST). He submitted that since the relaxation availed by the Petitioner was also available to the candidates from the unreserved category, the petitioner should have been included in the final selection list of the unreserved category, having scored more than the cut-off. Learned counsel for the respondents contended that since the petitioner had availed the relaxed standards in height and chest measurement, he had to be considered in the category as per the provisions contained in Clause 11(xiv) and not under Clause 11(xiii) of the Examination Notification. He states that the height & chest of the petitioner is less than the physical standards fixed for common recruitment test of CT(GD) in CAPFs & Assam Rifles, NIA and SSF and he has been declared qualified in the physical standard on relaxed standards as per the provisions on anthropological or geographical grounds. He further states that only the SC/ST/OBC candidates who are selected on their own merits without relaxed standards, along with candidates of other communities will not be adjusted in the reserved vacancies. After hearing the learned counsels for the respective parties at length, the Hon’ble High Court held, “This Court directs that the present judgment would have prospective effect i.e., it would not disturb the list of selected candidates till date. However, the vacancies that remain to be filled, shall be filled in accordance with the revised list, that should be prepared in accordance with the law declared by this Court in the present judgment. With the aforesaid directions, the writ petition along with pending application stands disposed of.”

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 4982 2021 & C.M.No.15269 2021 HEMANT POKHRIYAL ..... Petitioner Through Mr.Amit Kaushik Advocate. STAFF SELECTION COMMISSION & ORS. Through Mr.Nirvikar Verma Advocate. ..... Respondents Date of Decision: 01st October 2021 CORAM: HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA MANMOHAN J.Present writ petition has been filed challenging the selection procedure of the respondents for the post of Constablein the Central Armed Police ForcesNIA SSF and Riflemanin Assam Rifles insofar as it debars a candidate from the reserved category from being adjusted against the General vacancy if the candidate has availed any relaxation irrespective of the fact that such relaxation is also available to the General category candidates. ARGUMENTS ON BEHALF OF THE PETITIONER Learned Counsel for the petitioner states that the petitioner belongs to Other Backward Classfrom the border guarding district of Uttarkashi under the Garhwal division of Uttarakhand. He further states that the W.P.(C) 4982 2021 Digitally Signed By:JASWANTSINGH RAWATSigning Date:04.10.202111:55:02Signature Not Verified Petitioner applied for the post of Constablein the Central Armed Police Forces NIA SSF and Rifleman in Assam Rifles Examination 2018 held by the Respondent No.1 Staff Selection Commission SSC) pursuant to the Notification dated 21st July 2018. He further states that the Petitioner qualified in the computer based examination and was shortlisted for the Physical Efficiency Test and Physical Standard Test in which he availed the relaxations in the standards of height and chest as available to all the male candidates falling in the categories of Garhwalis Kumaonis Dogras Marathas and candidates belonging to the States of Assam Himachal Pradesh and Jammu and Kashmir. These relaxations as provided vis a vis general candidates by Clause 9(III) of the Examination Notification are reproduced below: III. Physical Standard TestMale General mentioned below) SC & Relaxations: The minimum height for the of Garhwalis Kumaonis Dogras Marathas and candidates belonging to W.P.(C) 4982 2021 Digitally Signed By:JASWANTSINGH RAWATSigning Date:04.10.202111:55:02Signature Not Verified the States of Assam Himchal Jammu and Pradesh and b. Chest: General SC & OBC male Relaxations: The minimum chest for male of Garhwalis Kumaonis Dogras Marathas and candidates belonging to the State of Assam Himachal Jammu & Learned counsel for the Petitioner states that in the final result that was declared by the respondents on 21st January 2021 the Petitioner had scored 73.1913 which though more than the score secured by the last candidate selected in the unreserved category from his state was less than the score secured by the last candidate selected in the OBCcategory from his state 4982 2021 Digitally Signed By:JASWANTSINGH RAWATSigning Date:04.10.202111:55:02Signature Not Verified He states that subsequently it was revealed that the Petitioner was not accommodated in the un reserved category because he had availed relaxation in the measurement of height and chest during the Physical Standard Test PST). He submits that the relaxation that the Petitioner had availed was available not only for the OBC candidates but for all the candidates from the Garhwal area irrespective of their category. He states that since the relaxation availed by the Petitioner was also available to the candidates from the unreserved category the petitioner should have been included in the final selection list of the unreserved category having scored more than the cut off. He contends that the Petitioner should have been considered in pursuance to Clause 11of the notification which reads as under: “(xiii) SC ST OBC and ExS candidates who are selected on their own merit without relaxed standards along with candidates belonging to other communities will not be Such adjusted against the reserved share of vacancies candidates will be accommodated against the unreserved vacancies as per their position in the overall Merit List. The reserved vacancies will be filled up separately from amongst the eligible SC ST OBC and ExS candidates.” emphasis supplied) Learned Counsel for the Petitioner states that if a candidate of the reserved category performs better than a candidate of the general category without the ‘aid of any crutches’ then his selection is on the basis of merit and not on the basis of reservation and he shall have to be treated as a general category candidate because he makes it on his own merit and not by reason of the category to whom he she belongs. W.P.(C) 4982 2021 Digitally Signed By:JASWANTSINGH RAWATSigning Date:04.10.202111:55:02Signature Not Verified ARGUMENTS ON BEHALF OF THE RESPONDENTS Per contra learned counsel for the respondents contends that since the petitioner had availed the relaxed standards in height and chest measurement he had to be considered in the category as per the provisions contained in Clause 11(xiv) and not under Clause 11(xiii) of the Examination Notification which reads as under: “(xiv) SC ST OBC and ExS candidate who qualifies on the basis of relaxed standards viz. age limit height and chest measurement experience or qualifications permitted number of chances extended zone of consideration larger than what is provided for general category candidate etc. irrespective of his her merit position such SC ST OBC and ExS In so candidates is to be counted against reserved vacancies far as cases of ex serviceman are concerned deduction of the military service rendered from the age of ex servicemen is permissible against the reserved or unreserved posts and such exemption cannot be termed as relaxed standards in regard to emphasis supplied) He states that the height & chest of the petitioner is less than the physical standards fixed for common recruitment test of CT(GD) in CAPFs & Assam Rifles NIA and SSF and he has been declared qualified in the physical standard on relaxed standards as per the provisions contained in Clause 9(III) of the Notification on anthropological or geographical grounds. He further states that as per DOP&T OM No.36011 l 98 Estt.(Res) dated 01 07 1998 only the SC ST OBC candidates who are selected on their own merits without relaxed standards along with candidates of other communities will not be adjusted in the reserved vacancies. W.P.(C) 4982 2021 Digitally Signed By:JASWANTSINGH RAWATSigning Date:04.10.202111:55:02Signature Not Verified WHEN A CANDIDATE GETS SELECTED FOR APPOINTMENT TO A POST ON THE BASIS OF HIS OWN MERIT AND WITHOUT AVAILING THE RELAXATIONS THAT ARE AVAILABLE THEN HIS SELECTION WOULD NOT BE COUNTED AGAINST THE RESERVED POST. PARA 11(XIII)OF THE EXAMINATION NOTICE ALSO STATES SO. It is settled law that when a candidate gets selected for admission or for appointment to a post on the basis of his own merit and without availing the relaxations that are available to them then his selection would not be counted against the reserved post. In Indra Sawhney & Ors. v. Union of India & Ors.SuppSCC 217 the Supreme Court has held as under: that some members belonging “[It] is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen to say Scheduled Castes get selected in the open competition field on the basis of their own merit they will not be counted against the quota reserved for Scheduled Castes they will be treated as open competition candidates.” 11. A similar view has been reiterated by the Supreme Court in R.K. Sabharwal and Others v. State of Punjab and Others 2 SCC 745 Union of India and Others v. Virpal Singh Chauhan and Other 6 SCC 684 Ritesh R. Sah v. Dr. Y.L. Yamul and Others 3 SCC 253. 12. This Court also finds that the examination notice in para 11(xiii) specifies that if a SC ST OBC and Ex Serviceman are selected on their own merit and without any relaxed standards relatable to aforesaid categories or without consideration larger than what is provided for General category then the candidate is not to be adjusted against the reserved vacancies. W.P.(C) 4982 2021 Digitally Signed By:JASWANTSINGH RAWATSigning Date:04.10.202111:55:02Signature Not Verified RELAXATIONS IN MEASUREMENT OF HEIGHT AND CHEST ARE AVAILABLE TO ALL THE CANDIDATES FROM GARHWAL REGION WHETHER THE CANDIDATE BELONGS TO A RESERVED OR UNRESERVED CATEGORY. PARA 11(XIV) CLEARLY STATES THAT WHEN A RESERVED CATEGORY CANDIDATE IS SELECTED ON THE SAME STANDARD AS APPLICABLE TO A GENERAL CANDIDATE THEN HE SHALL NOT BE ADJUSTED AGAINST RESERVED 13. This Court is of the view that the relaxations in measurement of height and chest are available to all the candidates from Garhwal Region or other specified regions whether the candidate belongs to a reserved or unreserved category. There is specific relaxation for Scheduled Tribes but no relaxation with regard to height or chest is provided specifically to OBCs. 14. The respondent No.1’s interpretation that since the petitioner is an OBC category candidate and has availed relaxation in measurement in the standards of height and chest which is available to a Garhwali candidate he cannot be considered in unreserved category by virtue of para 11(xiv) is untenable in law as the instructions and the clarification clearly state that when a reserved category candidate is selected on the same standard as applicable to a General candidate then he shall not be adjusted against reserved vacancies. It is only when a candidate avails relaxations that are not otherwise available to the candidates of the unreserved category that he is to be considered in his category. 15. The Office Memorandum dated 1st July 1998 issued by the Ministry of Personnel PG & Pensions Department of Personnel & Training clarifies the position. It states as under: “3. In this connection it is clarified that only such SC ST OBC candidates who are selected on the same W.P.(C) 4982 2021 Digitally Signed By:JASWANTSINGH RAWATSigning Date:04.10.202111:55:02Signature Not Verified standard as applied to General candidates shall not be adjusted against reserved vacancies ” In the present case the height and chest relaxations that have been availed by the Petitioner are available to all the candidates belonging to the Garhwal region. In fact there are no height and chest relaxations provided for the candidates belonging to the OBC category in Clause 9(III) of the Notification and they are to be considered along with the General candidates. 17. Even the learned predecessor bench in the order dated 02nd August 2021 had observed as under: “We are prima facie of the opinion that when Clause 11 xiv) of the Examination Notice supra refers to Scheduled Castes Scheduled Tribes OBC and Ex Servicemen candidates who have qualified on the basis of relaxed standards the same refers to the relaxation by virtue of being SC ST OBC or Ex Servicemen and not relaxation given to candidates from particular States region inasmuch as the said relaxations are available to all candidates from that region State even those belonging to the Unreserved 18. This Court respectfully agrees with the said interpretation. IF THIS COURT WERE TO ACCEPT THE ARGUMENT OF THE RESPONDENTS IN THE PRESENT CASE THE FACT THAT THE PETITIONER BELONGS TO A RESERVED CATEGORY INSTEAD OF WORKING TO HIS BENEFIT WOULD RATHER WORK TO HIS 19. Moreover if this Court were to accept the arguments of the respondents in the present case the fact that the petitioner belongs to a reserved category W.P.(C) 4982 2021 Digitally Signed By:JASWANTSINGH RAWATSigning Date:04.10.202111:55:02Signature Not Verified instead of working to his benefit would rather work to his disadvantage as he would have been better offif he had registered for the exam as a General category candidate from the Garhwal region. This would however legislators administrator while making provisions for relaxations for certain categories. RELIEF MOULDED JUDGMENT WOULD HAVE PROSPECTIVE 20. Consequently the present petition is allowed. However this Court is of the view that in the present case as training of the selected candidates has already commenced it would not be proper to direct the respondents to re draw the result in its entirety. After all it is settled law that the prospective declaration of law is a devise innovated by the Apex Court to avoid re opening of settled issues and to prevent multiplicity of proceedings. Even the High Courts in exercise of their equity jurisdiction without applying the doctrine of prospective over ruling indisputably can grant a limited relief. See: P.V.George and Others vs. State of Kerala and Others 3 SCC 557 Somaiya Organics Ltd. and Another vs. State of U.P. and Another 5 SCC 519 Gaurav Tripathi vs. State of U.P. and Others 2009 SCC OnLine All 1608 and Baburam vs. C.C. Jacob and Others 3 SCC 362.] 21. Accordingly this Court directs that the present judgment would have prospective effect i.e. it would not disturb the list of selected candidates till date. However the vacancies that remain to be filled shall be filled in accordance with the revised list that should be prepared in accordance with W.P.(C) 4982 2021 Digitally Signed By:JASWANTSINGH RAWATSigning Date:04.10.202111:55:02Signature Not Verified the law declared by this Court in the present judgment. With the aforesaid directions the writ petition along with pending application stands disposed of. OCTOBER 01 2021 MANMOHAN J NAVIN CHAWLA J W.P.(C) 4982 2021 Digitally Signed By:JASWANTSINGH RAWATSigning Date:04.10.202111:55:02Signature Not Verified

Land Acquisition Act,1894- Guesswork involved in fixation of market value is to be made by adopting well-recognized methods: Supreme Court of India.

It is well settled that fixation of market value in a Reference under Section 18(1) of the Land Acquisition Act,1894 necessarily involves some guesswork. However, the guesswork is required to be made by adopting one of the well-recognized methods, such as the comparison method or capitalization method, and the same was observed by Hon’ble Abhay S. Oka, J in the matter of Soman vs. Inland Waterways Authority of India & Anr. – [Civil Appeal No. 2825 of 2021]. The case arises out of the fact that civil appeal nos. 2825, 2826 and 2827 of 2011 took exception to the common Judgment and order dated 25th August 2009 passed by a Division Bench of the High Court of Kerala in LA appeal nos. 829 of 2006, 1005 of 2007 and 1000 of 2007 arising out of the awards made by a Civil Court in References under Section 18(1) of the Land Acquisition Act,1894 (for short “the said Act”) in respect of the lands in village Mullackal in District Allapuzha. The purpose of the acquisition was of widening of National Waterway no. III in Kerala. Civil Appeal No. 2826 of 2011 takes an exception to the Judgment dated 5th March 2010 passed by a Division Bench of the High Court of Kerala in LA. Appeal No. 637 of 2001 arising out of an Award made by a Civil Court in a Reference under Section 18(1) of the said Act in respect of a land in village Maradu, Kanayannur Taluka in Ernakulam District. The purpose of the acquisition was of setting up of Inland Water Transport Terminal. In one of the cases, compensation was granted in respect of the building on the acquired land. In one case, compensation was claimed on account of severance of the remaining land. But in these appeals which are filed by the landowners/claimants, we are concerned only with the land value. There is no dispute about the grant of statutory benefits under Sections 23(1-A), 23(2) and 28 of the said Act. In support of Appeal Nos.2825, 2826 and 2827, the learned counsel appearing for the appellants submitted that the High Court has given no reasons for reducing the market value of the dry lands to Rs.34,158/- per Are. The Reference Court on the basis of comparable exemplars in the form of its own decisions had fixed the market value of the acquired lands. The reasons recorded by the Reference Court have not been upset by the High Court. Further submission of the appellant in Civil Appeal No.2825 of 2011 is that no reasons have been assigned by the High Court for reducing the market value of the wetlands to Rs.1,500/- per Are. The learned counsel appearing for the first respondent supported the impugned Judgment and order. In support of the Civil Appeal arising out of Special Leave Petition No. 387 of 2013, the learned counsel for the appellants submitted that the ratio of 100:52:48:43:39 is completely erroneous. He pointed out that Category ‘C’ was of reclaimed lands having river frontage and Category ‘B’ was of the reclaimed lands having road frontage and access to the river. Therefore, the ratio fixed for ‘B’ Category land ought to have been much more than 52. The learned counsel appearing for the respondents supported the impugned Judgment and order. Supreme court after perusing the facts and arguments presented, held that – “It is well settled that fixation of market value in a Reference under Section 18(1) of the said Act necessarily involves some guesswork. However, the guesswork is required to be made by adopting one of the well-recognized methods, such as the comparison method or capitalization method. Category ‘A’ lands were dry lands having frontage on National Highway No.47. Category ‘B’ was of reclaimed lands with road frontage which had access to the river through the reclaimed portions. Considering these factors, in the facts of the case, it is not possible to find fault with the approach of the High Court of fixing the market value of Category ‘B’ lands at 52% of the market value fixed for Category ‘A’ lands. Therefore, there is no scope to interfere with the Judgment of the High Court. 12. Accordingly, Civil Appeal Nos. 2826 and 2827 of 2011 are allowed and the market value of the dry lands fixed by the Reference Court at Rs.60,000/- per Are is restored; Civil Appeal No. 2825 of 2011 is partly allowed by setting aside that part of the impugned Judgment and order by which market value of Rs.40,000/- per Are of dry land was reduced to Rs.34,158/-. The market value of the dry land at the rate of Rs.40,000/- per Are fixed by the Reference Court is restored. However, the finding of the High Court that the market value of the wetland was Rs.1,500/- per Are is confirmed; In Civil Appeal Nos. 2825, 2826 and 2827 all of 2011, the appellants will be entitled to statutory benefits in accordance with 12 sub-section (1-A) of Section 23, sub-section (2) of Section 23 and Section 28 of the said Act; Civil Appeal arising out of Special Leave Petition No. 387 of 2013 is hereby dismissed”

..… APPELLANT INLAND WATERWAYS AUTHORITY OF INDIA & ANR. ..... RESPONDENTS IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2825 OF 2011 CIVIL APPEAL NO. 2826 OF 2011 CIVIL APPEAL NO. 2827 OF 2011 CIVIL APPEAL NO. 7599 OF 2011 SLPNO. 387 OF 2013 J U D G M E N T ABHAY S. OKA J Delay condoned. Leave granted in Special Leave Petition No. 387 Civil Appeal Nos.2825 2826 and 28211 take exception to the common Judgment and order dated 25th August 2009 passed by a Division Bench of the High Court of Kerala in LA Appeal nos. 8206 10007 and 10007 arising out of the awards made by a Civil Court in References under Section 18(1) of the Land Acquisition Act 1894 in respect of the lands in village Mullackal in District Allapuzha. The purpose of the acquisition was of widening of National Waterway no.III in Kerala. Civil Appeal No. 28211 takes an exception to the Judgment and order dated 5th March 2010 passed by a Division Bench of the High Court of Kerala in LA Appeal No. 6301 arising out of an Award made by a Civil Court in a Reference under Section 18(1) of the said Act in respect of a land in village Maradu Kanayannur Taluka in Ernakulam District. The purpose of the acquisition was of setting up of Inland Water Transport Terminal. In one of the cases compensation was granted in respect of the building on the acquired land. In one case compensation was claimed on account of severance of the remaining land. But in these appeals which are filed by the landowners claimants we are concerned only with the land value. There is no dispute about the grant of statutory benefits under Sections 23(1 A) 23(2) and 28 of the said Act Facts of Civil Appeal Nos. 2825 to 28211 are more or less identical. The relevant factual aspects in nutshell are as under: Civil Appeal No. 28211 The date of the Notification under Section 4(1) of the said Act: 24th August 1999 Survey number of the acquired land: 867 5A1 2 of village of dry land iii) Area of the acquired land: 10 Acres of wetland and 0.80 Ares iv) Market value of the acquired land fixed by the Award under Section 11 of the said Act: Rs.11 386 per Are for dry land and Rs.370 per Are for the wetland v) Market value of the acquired land fixed by the Civil Court in a Reference under Section 18(1) of the said Act: Rs.40 000 per Are for dry land and Rs.10 000 per Are for the wetland vi) Market value of the acquired land fixed by the High Court Rs.34 158 per Are for dry land and Rs.1 500 per Are for Civil Appeal No. 28211 Act: 3rd May 1999 The date of the Notification under Section 4(1) of the said Survey number of the acquired land: 867 1F 1 of village iii) Area of the acquired land: 7.60 Ares of dry land iv) Market value of the acquired land fixed by the Award under Section 11 of the said Act: Rs.11 386 per Are for dry land v) Market value of the acquired land fixed by the Civil Court in a Reference under Section 18(1) of the said Act: Rs.60 000 per Are for dry land vi) Market value of the acquired land fixed by the High Court Rs.34 158 per Are for dry land. Civil Appeal No. 28211 The date of the Notification under Section 4(1) of the said Survey number of the acquired land: 867 5 A2 1 of village Act: 3rd May 1999 Market value of the acquired land fixed by the Award under Section 11 of the said Act: Rs.11 386 per Are for dry land. Market value of the acquired land fixed by the Civil Court in a Reference under Section 18(1) of the said Act: Rs.60 000 per Are for dry land Market value of the acquired land fixed by the High Court Rs.34 158 per Are for dry land Civil Appeal arising out of Special Leave Petition No. 3813 The date of the Notification under Section 4(1) of the said Act: 5th March 1998 Survey numbers of the acquired land: 3 7 3 12 3 17 and 3 18 of village Maradu iii) Area of the acquired land: 39.21 Ares of dry land iv) Market value of the acquired land fixed by the Award under Section 11 of the said Act: Rs.85 543 per Are for dry land v) Market value of the acquired land fixed by the Civil Court in a Reference under Section18of the said Act: Rs.1 20 000 per Are for dry land. vi) Market value of the acquired land fixed by the High Court Rs.1 50 000 per Are for dry land. In Civil Appeal arising out of Special Leave Petition No. 387 of 2013 the Land Acquisition Officer while making an award under Section 11 of the said Act categorized the acquired lands into six categories Category ‘A’ was of the dry lands having direct frontage on National Highway No.47. Category ‘B’ was of the wet reclaimed lands with road frontage and access to the river through a reclaimed portion of the river Category ‘C’ was of the reclaimed wetlands having river frontage Category ‘D’ was of the lands with thodu and chira having road frontage Category ‘E’ was of the wetlands with thodu and chira having access to the river through reclaimed portion and Category ‘F’ was of the lands covered by private roads or common drainage. In the present case we are concerned with Category ‘B’ lands for which the market value of Rs.85 543 was fixed under Section 11 of the said Act. At the instance of the appellants a Reference under Section 18(1) of the said Act was filed. The Reference Court fixed the land value of the acquired land subject matter of the appeal at Rs.1 20 000 per Are. This market value was fixed on the basis of the land value fixed for Category ‘C’ lands by adding 5% to the value fixed for Category ‘C’. The High Court in Appeal decided the value of lands falling in Categories ‘A’ ‘B’ ‘C’ ‘D’ and ‘E’ by adopting formula 100:52:48:43:39. The land value of the land in Category ‘B’ was fixed by the High Court at Rs.1 50 000 per Are. This was done in the appeal preferred by the landowners In support of Appeal Nos.2825 2826 and 2827 the learned counsel appearing for the appellants submitted that the High Court has given no reasons for reducing the market value of the dry lands to Rs.34 158 per Are. The Reference Court on the basis of comparable exemplars in the form of its own decisions had fixed the market value of the acquired lands. The reasons recorded by the Reference Court have not been upset by the High Court. Further submission of the appellant in Civil Appeal No.28211 is that no reasons have been assigned by the High Court for reducing the market value of the wetlands to Rs.1 500 per Are. The learned counsel appearing for the first respondent supported the impugned Judgment and order In support of the Civil Appeal arising out of Special Leave Petition No. 3813 the learned counsel for the appellants submitted that the ratio of 100:52:48:43:39 is completely erroneous. He pointed out that Category ‘C’ was of reclaimed lands having river frontage and Category ‘B’ was of the reclaimed lands having road frontage and access to the river. Therefore the ratio fixed for ‘B’ Category land ought to have been much more than 52. The learned counsel appearing for the respondents supported the impugned Judgment and order CONSIDERATION OF SUBMISSIONS Firstly we will deal with the submissions made in Civil Appeal Nos.2825 2826 and 28211. The References under Section 18(1 of the said Act subject matter of Civil Appeal Nos.2826 and 28211 were decided by a common judgment. We have carefully perused the common Judgment of the Reference Court. The appellants relied upon a Judgment of the Reference Courtby claiming that it was in the case of a comparable land. An Expert was appointed as the Court Commissioner to ascertain similarities and dissimilarities between the lands involved in both the cases and the land subject matter of Exhibit A 4. The Commissioner opined that the lands subject matter of these appeals were comparable with the land subject matter of Exhibit A 4. The market value of the land subject matter of Exhibit A 4 was Rs.75 000 per Are. The Reference Court found that the land subject matter of Exhibit A 4 was better located than the acquired lands Therefore the Reference Court deducted 20% from the rate of Rs.75 000 per Are and fixed the market value of the acquired lands at Rs.60 000 per Are. A perusal of the impugned Judgment and order of the High Court shows that the finding of the Reference Court that the land subject matter of Exhibit A 4 was comparable with the acquired lands has not been upset. In paragraph 3 of the impugned Judgment the High Court without recording any reasons fixed the market value of the acquired land at Rs.34 158 . No reasons have been assigned for disturbing the market value of the dry lands fixed by the Reference Court at Rs.60 000 per Are. Therefore to that extent the impugned Judgment and order will have to be set aside and the market value of the dry lands at the rate of Rs.60 000 per Are fixed by the Reference Court will have to be restored. Now coming to Civil Appeal No.28211 the Reference Court after considering the evidence found that its Judgment at Exhibit A 2 was in respect of a similarly situated and comparable land from the same village. As per the said Judgment Exhibit A 2 the Reference Court fixed the market value of the dry land at the rate of Rs.40 000 per Are. Therefore the Reference Court fixed the market value of the dry land admeasuring 0.80 areas at Rs.40 000 . The High Court by the impugned Judgment and order has brought down the market value to Rs.34 158 per Are. The High Court has not recorded any reasons for disturbing the finding of the Reference Court about the market value of the dry land in this case. The market value of the dry land fixed by the Reference Court is on the basis of the market value fixed by the Reference Court in respect of a comparable land. Therefore to that extent the impugned Judgment and order of the High Court will have to be set aside As regards the wetland subject matter of Civil Appeal No. 28211 we find that without recording any reasons the Reference Court fixed the market value of the wetland at 25% of the market value of the dry land. As can be seen from the Judgment of the Reference Court there is no basis for this conclusion. Therefore it is not possible to restore the rate fixed by the Reference Court. As noted earlier by the Award under Section 11 of the said Act a market value of Rs.370 per Are was granted in respect of the wetland. The High Court by the impugned Judgment and order fixed the market value of the wetland at Rs.1 500 per Are. The High Court has not given reasons for fixing the market value at Rs.1 500 per Are. The first respondent has not chosen to challenge the rate fixed by the High Court in respect of wetland. There is no material on record to enhance the rate. Hence the market value of the wetland will have to be taken at Rs.1 500 per Are Now we come to the Civil Appeal arising out of SLP3813. We have already noted that the lands acquired for setting up Inland Water Transport Terminals were divided into various Categories The Reference Court fixed the market value of Category ‘C’ lands at Rs.1 20 000 per Are. By adding 5% the market value of Category ‘B’ land was fixed at Rs.1 26 000 by the Reference Court 10. The High Court enhanced the market value of Category ‘C’ lands to Rs.1 40 000 per Are and Category ‘B’ lands to Rs.1 50 000 per Are The only reason for this enhancement which can be gathered from the Judgment is that as the market value of Category ‘A’ lands was fixed at Rs.2 90 000 per Are the market value of Category ‘B’ lands was arrived at Rs.1 50 000 being 52% of Rs.2 90 000 . The first respondent has not challenged the Judgment of the High Court. It is well settled that fixation of market value in a Reference under Section 18(1) of the said Act necessarily involves some guesswork However the guesswork is required to be made by adopting one of the well recognized methods such as the comparison method or capitalization method. Category ‘A’ lands were dry lands having frontage on National Highway No.47. Category ‘B’ was of reclaimed lands with road frontage which had access to the river through the reclaimed portions. Considering these factors in the facts of the case it is not possible to find fault with the approach of the High Court of fixing the market value of Category ‘B’ lands at 52% of the market value fixed for Category ‘A’ lands. Therefore there is no scope to interfere with the Judgment of the High Court. 12. Accordingly we pass the following Order : Civil Appeal Nos. 2826 and 28211 are allowed and the market value of the dry lands fixed by the Reference Court at Rs.60 000 per Are is restored Civil Appeal No. 2825 of 2011 is partly allowed by setting aside that part of the impugned Judgment and order by which market value of Rs.40 000 per Are of dry land was reduced to Rs.34 158 . The market value of the dry land at the rate of Rs.40 000 per Are fixed by the Reference Court is restored However the finding of the High Court that the market value of the wetland was Rs.1 500 per Are is confirmed In Civil Appeal Nos. 2825 2826 and 2827 all of 2011 the appellants will be entitled to statutory benefits in accordance with sub sectionof Section 23 sub sectionof Section 23 and Section 28 of the said Act Civil Appeal arising out of Special Leave Petition No. 3813 is hereby dismissed and (v There will be no order as to costs in the appeals. ABHAY S. OKA New Delhi December 10 2021

Kerala High Court Issues Memorandum That Lays Down The Directions To Be Followed In Case A Record Goes Missing.

The Kerala High Court noticed that there have been many instances where the court records and documents have been missing and hence in light of these events the High Court has issued an ‘Office Memorandum’ laying down the procedure for the subordinate courts in case of missing records. The memorandum was laid down by the Kerala High Court in the case of V.Safarullah V. Gracy Josephine Lambie, OP (C) No. 1428 of 2020. The brief facts of this case are that the Petitioners are willing to construct a building on a property that they own. The Petitioners approached the Bank for financial assistance and the Bank authorities have demanded the ‘Will’ made with respect to the property. The property originally belonged to one Andrew Rodger Lambie. By an unregistered will he bequeathed the property in favour of his wife that is the Respondent in this case. The Respondent filed for an order of protection before the court seeking letter of administration along with the Will. Later the Respondent sold this property to the Petitioner and now the property is vested with the Petitioner and his siblings. As the Petitioners approached the District Court to issue the ‘Will’, it was stated by the court that the ‘Will’ has been misplaced while in the custody of the court. Hence, in light of  the numerous cases of records and documents being misplaced by the Courts an Office Memorandum was issued which laid down directions as follows – Violation of any of the directions, the HC stated, would be taken seriously. The High Court instructed the Subordinate Court to carry out the necessary instructions and pass appropriate orders in this case.

OP(C).No.1428 OF 2020 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY THE 07TH DAY OF DECEMBER 2020 16TH AGRAHAYANA 1942 OP(C).No.1428 OF 2020 AGAINST THE ORDER JUDGMENT IN C.A.NO.721 2020 DATED 2.6.2020 IN OP 48 1964 OF THE DISTRICT COURT THALASSERY AGED 61 YEARS S O.KOYA KUNJI SHAHI NIVAS P.O.VALAPATTANAM SMT.C.DEVIKA RANI KAIMAL GRACY JOSEPHINE LAMBIE W O.ANDREW RODGER LAMBIE RESIDING AT NO.99 CANTONMENT KANNUR 670 001 THIS OP HAVING BEEN FINALLY HEARD ON 01 12 2020 THE COURT ON 07 12 2020 DELIVERED THE FOLLOWING OP(C).No.1428 OF 2020 C.S.DIAS J OP(C) No.14220 Dated this the 7th day of December 2020 JUDGMENT What is the procedure to be followed by a Court when a case record goes missing is the question that arises for consideration in this original petition. The facts in a nutshell are the petitioner is a co owner of the property comprised in Resurvey No.558 in Block No.3 10 in Kannur 1 Village having an extent of 6.88 Ares covered by Ext P3 basic tax receipt and Ext P4 possession certificate. The property originally belonged to Andrew Rodger Lambie. The erstwhile owner had by an unregistered Willdated 4.1.1961 bequeathed the property in favour of his wife the respondent. The respondent on the death of her husband filed OP No.48 1964 before the Court of the District Judge Thalasserry seeking letters of administration with OP(C).No.1428 OF 2020 Will annexed in respect of item No.2 in Ext P1. By Ext P2 judgment the original petition was allowed. The respondent sold the property to the petitioner s predecessors in interest. Ultimately by document No.1685 1971 the property was assigned in favour of the petitioner s mother and other relatives. Now the property has vested on the petitioner and his siblings who are desirous of constructing a building in the property. They approached a Bank for financial assistance but the Bank has insisted for a certified copy of the Will. In the said circumstances the petitioner filed Ext P5 copy application Ext P6 Vakalath and Ext P7 list of documents before the District Court in OP No.48 1964 to obtain the certified copy of Ext P1. The endorsement on Ext P9 original petition substantiates that the Will was marked as Ext A1 in evidence However by Ext P8 endorsement made on Ext P7 the Record Clerk has returned Exts P5 to P7 for the reason that the Will cannot be traced. The petitioner seeks to set aside Ext P8 endorsement and a direction to the District OP(C).No.1428 OF 2020 Court to issue the certified copy of the Will. 3. When the original petition came up for consideration on 17.11.2020 this Court had called for a report from the District Court 4. The learned District Judge by communication dated 24.11.2020 has informed this Court that the Record Clerk had searched for the Will as in the index paper it is endorsed that record was kept in a sealed cover with the Sheristadar. Although he had conducted a thorough search in the chest and almirah the Will could not be traced out. The said reason was not mentioned by the Record Clerk in the copy application. The Court is not in a position to issue the certified copy of the Will as it is not available in the case records. 5. As the relief sought in the original petition is with respect to issuing a certified copy of the Will notice to the respondent was dispensed with. 6. Heard the learned counsel appearing for the The endorsement on Ext P9 original petition OP(C).No.1428 OF 2020 proves that the Will was marked in evidence as Ext A1 The communication of the learned District Judge also establishes that the Will was kept in a sealed cover in the safe custody of Sheristadar. Therefore the Will has been misplaced lost while the document was in custodia This Court after noticing the increasing incidents of missing of case records has promulgated Memorandum dated 30.1.2019 exhaustive directions to all Subordinate Courts to deal with such situations. It is seen that the Official Memorandum was communicated to all Judicial Officers and Sections for strict compliance. Nevertheless the Official Memorandum is extracted below which reads THE HIGH COURT OF KERALA Date:30.1.2019 Sub: Missing of records of subordinate Courts missing on an increase general directions issued reg OP(C).No.1428 OF 2020 Ref: 1. High Court Circular No. 26 1958 2. High Court Circular No. 13 1962 3. High Court O.M. No. D6 32813 14 dated 10 07 2014 It has come to the notice of the High Court that instances of missing of case records reported from the subordinate courts are increasing recently despite the strict directions issued by the High Court on the subject. This causes considerable delay in the disposal of cases thus causing much difficulty to the parties to the proceedings. In some cases the documents are found impossible to be reconstructed which may result in miscarriage of justice Taking a serious note of this disturbing trend the following directions are issued to all subordinate courts for strict a) One of the main reasons for missing of records is improper keeping of records. It is necessary that the subordinate judicial officers bestow personal attention in the matter. They shall ensure that case records are properly maintained in their courts. Any lack of space or insufficiency of racks should be looked into and necessary action be taken at the earliest. They shall impress upon their staff the need for proper upkeep and safety of records b) The High Court had earlier issued instructions to report instances of missing of records to the High Court promptly. But instances have been noticed where there have been considerable delay in reporting the matter. Any lapse from the Subordinate Courts in promptly reporting the missing of documents to the High Court will be viewed seriously and proceeded with c) The High Court had also directed the subordinate courts to ensure that thorough search is conducted before reporting the missing to the High Court. But it is often found that the matter is reported without conducting a thorough and proper search. Records are often traced out after instructions have been issued for reconstructing the same. The judicial officers shall bear in mind that the missing records are to be necessarily traced out and reconstruction of those records shall be resorted to only as the last resort. The search shall not be in a casual manner and the judicial officer may avail the service of all the staff of the court concerned so as to trace out the records which can be done even on a holiday by availing holiday duty OP(C).No.1428 OF 2020 d) When the documents are irrecoverably lost and the same need to be reconstructed the courts concerned shall report the steps taken to trace out the document and the possibility of reconstruction at the time of reporting the matter to the High Court It is also incumbent upon the Courts to secure the copies of such documents at the stage of reporting the matter to the High Court and to Inform the same so that they can proceed with the matter as and when instructions are received from the High Court. This will help to avoid delay in the disposal of the case e) In order to appreciate the relevance of the missing document in further proceedings it is necessary that the subordinate courts report the nature of the case the details of the lost document and the stage of the case. But these matters are often omitted in the report. Hence the subordinate courts shall include all the necessary details of the missing documents and the case while reporting the matter to the High Court. They shall also enter all the necessary details in the form appended herewith as and forward the same along with the report f) Often it is noticed that the disciplinary proceedings against the delinquent employee takes a long time. This delay is not desirable The proceedings shall be conducted promptly. Since the power to take disciplinary action rests with the District Judge Chief Judicial Magistrate while reporting the missing of records to the High Court they shall simultaneously take steps to fix responsibility for the missing of the records and initiate action against the delinquent The whole proceedings shall be completed in a time bound manner and a report shall be sent to the High Court on conclusion of the g) The subordinate judicial officers are advised to take a strict view while dealing with disciplinary proceedings with respect to missing of records. They should also issue necessary directions to their staff for the proper upkeep and safety of records. They shall ensure that instances of missing of records are not repeated The above directions shall strictly be followed. Any violation of these directions will be viewed seriously by the High Court and dealt with accordingly OP(C).No.1428 OF 2020 PG. Ajithkumar. Registrar(Bold letters given 9. By virtue of the provisions in Chapter VII of the Civil Rules of Practice Kerala 1971the Record Clerk had no authority to return Exts P5 to P7 It is evident in the communication of the learned District Judge that the missing of the record was not brought to his notice before Ext P8 was endorsed and Exts P5 to P7 were returned. The learned District Judge has informed that the certified copy cannot be issued as the Will as it cannot be traced out. This is against the directions and procedure prescribed in the Official Memorandum 10. In light of the Official Memorandum it was the duty of the learned District Judge to have promptly ordered a proper search to be conducted and thereafter reported the matter to this Court and as a last resort OP(C).No.1428 OF 2020 ordered the reconstruction of the records. 11. In view of the directions in the Official Memorandum and that Ext P1 is in the custody of the Court I hold that Ext P8 endorsement and returning of Ext P5 to P7 are erroneous and unsustainable in law and therefore liable to be set aside In the result I allow this original petition by setting aside Ext P8 endorsement and in exercise of the powers of this Court under Article 227 of the Constitution of India I direct the District Court Thalassery to accept Exts P5 to P7 and take the necessary steps as contemplated in the Official Memorandum and pass appropriate orders on Ext P5 in accordance with law Forward a copy of this judgment to the Registrar Subordinate Judiciary) of this Court OP(C).No.1428 OF 2020 PETITIONER S S EXHIBITS TRUE COPY OF THE WILL EXECUTED BY LATE ANDREW RODGER LAMBIE DATED 04.01.1961 TRUE COPY OF THE ORDER OF GRANTING LETTER OF ADMINISTRATION DATED 30.07.1965 ISSUED BY THE LEARNED DISTRICT JUDGE THALASERY TRUE COPY OF THE BASIC TAX DATED 14.11.2019 ISSUED BY VILLAGE OFFICE TRUE COPY OF THE POSSESSION CERTIFICATE DATED 15.11.2019 ISSUED BY THE VILLAGE OFFICE KANNUR TRUE COPY OF THE APPLICATION DATED 27.02.2020 SUBMITTED BY THE PETITIONER TRUE COPY OF THE VAKALATH EXECUTED BY THE PETITIONER IN FAVOUR OF M.K.ANIL KUMAR ADVOCATE THALASSERY TRUE COPY OF THE LIST OF DOCUMENTS SUBMITTED BY THE ADVOCATE OF THE TRUE COPY OF THE ENDORSEMENT DATED 02.06.2020 MADE IN THE REAR SIDE OF EXT.P7 LIST OF DOCUMENTS EXHIBIT P9 CERTIFIED COPY OF THE ORIGINAL PETITION NO.48 1964 ON THE FILES OF THE DISTRICT COURT THALASSERY

Whatever be the dispute between the husband and the wife, a child should not be made to suffer: Supreme Court of India

A Father cannot be absolved off his liability and responsibility to maintain his child till they attain the age of majority. It also cannot be disputed that the child has a right to be maintained as per the status of his father. This was observed by a division bench judge Hon’ble Mukeshkumar Rasikbhai Shah, J in the matter of Neha Tyagi vs. Lieutenant Colonel Deepak Tyagi – [Civil Appeal No. 6374 of 2021]. The facts of the case is that appellant and the respondent were married and had a son out of the said wedlock. A dispute arose between the husband and the wife and the appellant-wife filed a number of complaints against the respondent-husband before his employer – Army Authorities including the extra-marital affairs of the respondent-husband. The respondent-husband filed a case against the appellant-wife before the learned Family Court, Jaipur seeking a decree of divorce and dissolution of marriage on the ground of cruelty and desertion by the appellant-wife. The learned Family Court passed a decree for dissolution of marriage between the appellant and the respondent on the ground of cruelty and desertion by the appellant-wife on 19.05.2008. Feeling aggrieved and dissatisfied by that judgment, the appellant herein preferred an appeal before the High Court. By the impugned judgment and order, the High Court dismissed the said appeal and confirmed the judgment and decree passed by the learned family Court. Hence, the present appeal was filed in the Supreme Court at the instance of the appellant-wife. Though served, the respondent-husband had not appeared in the present appeal and despite the order of status quo passed by this Court vide interim order dated 22.11.2019, the respondent-husband had re-married. The learned Advocate appearing on behalf of the appellant submitted that despite the order of status quo passed by this Court, the respondent-husband had re-married and that was why he wasn’t appearing in the present proceedings. It was urged on behalf of the appellant-wife that in the alternative, the findings against the appellant-wife on “cruelty” may be expunged and marriage may continued to remain dissolved on account of irretrievable breakdown of marriage. However, it was submitted to direct the respondent-husband to pay maintenance to the appellant-wife and minor son as they had no means of maintaining themselves and had no independent income to sustain themselves. It was submitted that since December, 2019, the appellant-wife and her son were not being paid any maintenance which they were receiving from the Army Authorities where they were being given Rs. 40,000/- towards maintenance. It was prayed before the Hon’ble court to direct the respondent-husband to pay the maintenance to the appellant and her minor son. Supreme court after perusing the facts and arguments presented, held that – “the respondent-husband cannot be absolved from his liability and responsibility to maintain his son till he attains the age of majority. Whatever be the dispute between the husband and the wife, a child should not be made to suffer. The liability and responsibility of the father to maintain the child continues till the child/son attains the age of majority. It also cannot be disputed that the son has a right to be maintained as per the status of his father. It was reported that the mother is not earning anything. Therefore, a reasonable/sufficient amount is required for the maintenance of her son including his education etc. which shall have to be paid by the respondent-husband, irrespective of the decree of dissolution of marriage between the appellant-wife and the respondent-husband. In view of the above and for the reasons stated above, the present appeal stands disposed of by confirming the decree of divorce/dissolution of the marriage between the appellant-wife and the respondent-husband. However, the respondent-husband is directed to pay Rs.50,000/- per month with effect from December, 2019 to the appellant-wife towards the maintenance of son as per the status of the respondent herein.” The instant appeal was then disposed of, with detailed directions given to the respondent-husband for payment of the maintenance.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6374 OF 2021 Lieutenant Colonel Deepak Tyagi M.R. SHAH J JUDGMENT Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature for Rajasthan at Jaipur passed in D.B. Civil Miscellaneous Appeal No. 28418 by which the Division Bench of the High Court has dismissed the said appeal preferred by the appellant herein and has confirmed the judgment and decree passed by the learned Family Court dissolving the marriage between the appellant and the respondent on the ground of cruelty and desertion by the appellant herein the original appellant wife has preferred the present appeal. The facts leading to the present appeal in nutshell are as under That the marriage between the appellant and the respondent was solemnised on 16.11.2005. That the respondent herein was serving as an Army Officer as Major. That out of the said wedlock the appellant and the respondent had one son Pranav Tyagi who is aged 13 years presently being born on 23.2.2008. That the dispute arose between the husband and the wife. That the appellant wife filed number of complaints against the respondent husband before his employer Army Authorities including the extra marital affairs of the respondent husband An enquiry was initiated by the Army Authorities against the respondent husband for extra marital affairs on the basis of the complaints dated 29.09.2014 and 5.2.2015 made by the appellant wife. In the enquiry the respondent husband was exonerated 2.1 That the respondent husband filed Case No. 1496 2016 against the appellant wife before the learned Family Court Jaipur on 25.11.2014 seeking a decree of divorce and dissolution of marriage on the ground of cruelty and desertion by the appellant wife. That in the meantime and since 2012 the Army Authorities were deducting 27.5% of the salary per month from the pay and allowances of the respondent husband as per Section 90(1) of the Army Act 1950. That by judgment and decree dated 19.05.2018 the learned Family Court passed a decree for dissolution of marriage between the appellant and the respondent on the ground of cruelty and desertion by the appellant wife 2.2 Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Family Court dissolving the marriage between the appellant and the respondent the appellant herein preferred an appeal before the High Court being D.B. Civil Miscellaneous Appeal No 2845 2018. By the impugned judgment and order the High Court has dismissed the said appeal and has confirmed the judgment and decree passed by the learned family Court. Hence the present appeal is at the instance of the appellant wife 3. We have heard Ms. Neela Gokhale learned Advocate appearing on behalf of the appellant. It is very unfortunate that though served the respondent husband has not appeared in the present appeal and it is reported that despite the order of status quo passed by this Court vide interim order dated 22.11.2019 the respondent husband has re married 3.1 Number of submissions have been made by the learned Advocate appearing on behalf of the appellant wife on the findings recorded by the learned Family Court as well as the High Court on cruelty and desertion by the appellant wife. It is also the case on behalf of the appellant wife that subsequently and despite the order of status quo passed by this Court on 22.11.2019 the respondent husband has re married and that is why he is not appearing in the present proceedings It is urged on behalf of the appellant wife that in the alternative the findings against the appellant wife on “cruelty” may be expunged and marriage may be continued to remain dissolved on account of irretrievable breakdown of marriage since both wife and husband are residing separately since May 2011 and the respondent husband has already re married. However it is submitted to direct the respondent husband to pay maintenance to the appellant wife and minor son Pranav as they have no means of maintaining themselves and have no independent income to sustain themselves. It is submitted that since December 2019 the appellant wife and her son are not being paid any maintenance which they were receiving from the Army Authorities as per order passed by the Army Authorities dated 15.11.2012. It is submitted that the appellant and her son were getting Rs. 40 000 towards maintenance which they received from 2012 till November 2019. It is therefore prayed to direct the respondent husband to pay the maintenance to the appellant and her minor son Having heard learned counsel for the appellant wife and having gone through the findings recorded by the learned Family Court as well as by the High Court on “cruelty” and “desertion” by the appellant wife we are of the view that there are concurrent findings recorded by the learned Family Court as well as the High Court on “cruelty” and “desertion” by the appellant wife which as such are on appreciation of evidence on record. The appellant wife made number of complaints against the respondent husband to his employer Army Authorities making serious allegations of extra marital affairs. On the basis of the complaints made by the appellant wife an enquiry was initiated by the Army Authorities and the Army Authorities exonerated the respondent husband of the allegation of extra marital affairs However considering the fact that both the appellant wife and the respondent husband are not staying together since May 2011 and therefore it can be said that there is irretrievable breakdown of marriage between them. It is also reported that the respondent husband has already re married. Therefore no useful purpose shall be served to further enter into the merits of the findings recorded by the courts below on “cruelty” and “desertion” by the appellant wife. Therefore in the facts and circumstances of the case and in exercise of powers under Article 142 of the Constitution of India the decree passed by the learned Family Court confirmed by the High Court dissolving the marriage between the appellant wife and the respondent husband is not required to be interfered with on account of irretrievable breakdown of marriage However at the same time the respondent husband cannot be absolved from his liability and responsibility to maintain his son Pranav till he attains the age of majority. Whatever be the dispute between the husband and the wife a child should not be made to suffer. The liability and responsibility of the father to maintain the child continues till the child son attains the age of majority. It also cannot be disputed that the son Pranav has a right to be maintained as per the status of his father. It is reported that the mother is not earning anything. She is residing at her parental house at Jaipur. Therefore a reasonable sufficient amount is required for the maintenance of her son including his education etc which shall have to be paid by the respondent husband irrespective of the decree of dissolution of marriage between the appellant wife and the respondent husband. The amount which was being paid pursuant to the order passed by the Army Authorities on 15.11.2012 has also been stopped by the respondent husband since December 2019 In view of the above and for the reasons stated above the present appeal stands disposed of by confirming the decree of divorce dissolution of the marriage between the appellant wife and the respondent husband. However the respondent husband is directed to pay Rs.50 000 per month with effect from December 2019 to the appellant wife towards the maintenance of son Pranav as per the status of the respondent herein. The arrears @ Rs. 50 000 per month since December 2019 to November 2021 shall be paid within a period of eight weeks from today. The current maintenance @ Rs. 50 000 per month from the month of December 2021 onwards be deducted from the salary of the respondent husband by the Army Authorities which shall be directly credited in the bank account of the appellant mother. The appellant mother is directed to furnish the bank details to the Army Authorities within a period of one week from today. It is further ordered that if the arrears @ Rs. 50 000 per month commencing from December 2019 till November 2021 as ordered hereinabove is not paid by the respondent father within a period of eight weeks from today in that case the recovery of arrears + monthly maintenance shall be worked out by the Army Authorities and the same shall be deducted in equal monthly instalments from the salary of the respondent father so as not to exceed 50% of the total monthly pay and allowances of the respondent. The instant appeal stands disposed of with the aforesaid New Delhi December 01 2021

Single act which has propensity to affect the public order and tranquility will be sufficient for detention: High Court of Telangana

An order or detention is not a curative or reformative or punitive action, but a preventive action, the avowed object of which is to prevent the anti-social and subversive elements from imperiling the welfare of the people or the security of the nation or from disturbing the public tranquility or from indulging in white collar offenses. This was held in Banka Sneha Sheela v. State of Telangana[W.P.No.20146 of 2020] in the High Court for the State of Telangana by division bench consisting of Justice A.RAJASHEKER REDDY AND JUSTICE Dr. SHAMEEM AKTHER. Facts are that the detainee is a Stock Market Trader with five criminal cases filed against him wherein charge-sheet is not filed and he had been granted bail. Habeas corpus petition has been filed by wife of detainee, challenging the detention order of Commissioner of Police under Section 3(2) Telangana P.D. Act. The counsel for the petitioner contended that no incriminating material is present that the detainee had cheated the public. Detainee is alleged to be a ‘White Collar Offender’, thus can be tried and convicted under the Penal Code. There is no need to invoke the preventive detention laws which affect the fundamental right under Article 21 of the Constitution. The court in order to highlight the legal parameters for testing the validity of ‘preventive detention’ and ‘Public order’ which is distinct from ‘law and order’ made reference to the Supreme Court judgement in Commissioner of Police & Others Vs. C.Anita, wherein the following observations were made, “The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression “law and order” is wider in scope in as much as contravention of law always affects order, “public order” has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of “law and order” and “public order” is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order.”

THE HON’BLE SRI JUSTICE A.RAJASHEKER REDDY THE HON’BLE Dr. JUSTICE SHAMEEM AKTHER Writ Petition No.201420 Date: 31.03.2021 Banka Sneha Sheela ... Petitioner The State of Telangana rep. by Principal Secretary Home Department and others. Counsel for the Petitioner : Dr. Challa Srinivasa Reddy ... Respondents Counsel for the Respondents : Sri T. Srikanth Reddy Government Pleader for Home Gist: HEAD NOTE: Cases referred 1)2 SCC 364 2)3 SCC 746 3)7 SCC 467 4)6 SCC 14 2 ARR J & Dr. SAJ W.P.No.201420 THE HON’BLE SRI JUSTICE A.RAJASHEKER REDDY THE HON’BLE Dr. JUSTICE SHAMEEM AKTHER WRIT PETITION No.201420 ORDER:Smt. Banka Sneha Sheela the petitioner has filed this Habeas Corpus petition on behalf of her husband Banka Ravikanth S o. Erraiah aged about 34 years the detenu challenging the detention order vide 47 PD CELL CYB 2020 dated 28.09.2020 passed by the Commissioner of Police Cyberabad Police Commissionerate the respondent No.2 wherein the detenu was detained under Section 3(2) of the Telangana Prevention of Dangerous Activities of Bootleggers Dacoits Drug Offenders Goondas Immoral Traffic Offenders Land Grabbers Spurious Seed offenders Insecticide Offenders Fertilizer Offenders Food Adulteration Offenders Fake Document offenders Scheduled Commodities Offenders Forest Offenders Gaming Offenders Sexual Offenders Explosive Substances Offenders Arms Offenders Cyber Crime Offenders & White Collar or Financial Offenders Act 1986and in person on the pretext of providing good profit by investing their money in stock market and cheated them in an organized way creating a feeling of insecurity among public thus disturbing peace and tranquility in society and acted in a manner which is prejudicial to the maintenance of public order. The unlawful activities of the detenu were causing ARR J & Dr. SAJ W.P.No.201420 widespread danger to the gullible public and were detrimental to the public order. The series of crimes allegedly committed by the detenu were sufficient to affect the even tempo of the society and create a feeling of insecurity in the minds of the people at large. Further the detenu committed the alleged crimes in quick succession. The impugned detention order was passed basing on valid grounds and material placed before the respondents. All the mandatory provisions and the safeguards envisaged under the Constitution of India were strictly followed while passing the impugned detention order and hence the impugned detention order does not suffer from illegality or impropriety. In all the cases relied by the detaining authority for detaining the detenu the detenu got bail from the Courts concerned. Hence with a view to prevent the detenu from further indulging in such dangerous activities in the interest of the society the impugned detention order was passed. Preventive detention is different from punitive detention. Preventive detention is a precautionary measure basing on reasonable anticipation and it does not overlap with the prosecution. Out of five crimes relied by the detaining authority in preventively detaining the detenu in four crimes investigation has been completed and charge sheets have been filed. Further the Advisory Board in its review meeting held on 10.11.2020 upon hearing the detenu and the concerned investigating officials and upon considering the entire material placed before it rendered its opinion that there is sufficient cause for detention of the detenu. On considering the opinion of the Advisory Board and upon considering the entire material the Government confirmed the impugned detention order vide G.O.Rt.No.1954 General ARR J & Dr. SAJ W.P.No.201420 Law & Order)) Department dated 17.12.2020. Therefore the detaining authority was legally justified in passing the impugned detention order and ultimately prayed to dismiss the writ petition. In view of the submissions made by both sides the point that arises for determination in this Writ Petition is: “Whether the impugned detention order dated 28.09.2020 passed by the Commissioner of Police Cyberabad Police Commissionerate respondent No.2 and the confirmation order dated 17.12.2020 passed by the Principal Secretary to Government General Administration Spl.Department Government of Telangana are liable to be set aside ” POINT: Briefly the facts of the case are that by relying on five criminal cases registered against the detenu in Crime Nos.705 2019 708 2019 713 2019 19 2020 and 29 2020 within the limits of Cyberabad Police Commissionerate the respondent No.2 Commissioner of Police Cyberabad Police Commissionerate passed the detention order dated 28.09.2020. According to the respondent No.2 the detenu is a ‘White Collar Offender’ and he has been habitually and continuously engaging himself in series of unlawful activities by committing criminal breach of trust and cheating the innocent public by collecting huge money under the guise of investing the same in stock market and promising good profit in an organized way and thereby creating large scale fear and insecurity among the gullible public which are prejudicial to ARR J & Dr. SAJ W.P.No.201420 the maintenance of public order. In all the five cases relied by the detaining authority for preventively detaining the detenu the detenu got bail from the Court concerned. In order to prevent the detenu from indulging in similar illegal activities which are detrimental to the public order the impugned detention order dated 28.09.2020 was passed which was confirmed by the Government by order dated 17.12.2020. The material placed on record reveals that the detenu Banka Ravikanth S o. Erraiah aged about 34 years is a ‘White Collar Offender’. He claiming as a High Court Advocate inspired the gullible people to invest money in newly upcoming companies and collected more than Rs.50 lakhs from them through online and in person on the pretext of providing good returns by investing their money in stock market and thereby cheated them in an organized manner. The detaining authority relied on five cases for preventively detaining the detenu. We shall present it in a tabular column the date of occurrence the date of registration of FIR the offences complained of and its nature such as bailable non bailable or cognizable non cognizable. Crime No. Date of Date of of FIR 705 2019 of Medchal Police 12.12.2019 12.12.2019 Sections 420 406 506 of IPC 708 2019 of Medchal Police 713 2019 of Medchal Police 13.12.2019 13.12.2019 Sections 420 406 506 of IPC 14.12.2019 14.12.2019 Sections 420 406 506 of IPC Sections 406 & Non Bailable Section 506 : Non cognizable Sections 406 & Non Bailable Section 506 : Non cognizable Sections 406 & Non Bailable 19 2020 of Medchal Police 29 2020 of Pet Police Station ARR J & Dr. SAJ W.P.No.201420 Section 506 : Non cognizable Sections 406 & Non Bailable Section 506 : Non cognizable 07.01.2020 07.01.2020 Sections 420 406 506 of IPC 11.01.2020 11.01.2020 Sections 420 406 of IPC Non Bailable The material placed on record reveals that the detenu has been habitually committing while collar offences within the limits of Cyberabad Police Commissionerate. In first crime i.e. Crime No.705 2019 the allegations against the detenu is that he introduced himself as a High Court Advocate and instigated the de facto complainant therein to invest money in newly upcoming projects and promised him good returns. Believing the words of the detenu the de facto complainant therein paid about Rs.5 50 000 to the detenu through Phone Peand by way of cash. After coming to know that he was cheated when the de facto complainant asked the detenu to give his money back the detenu alleged to have threatened him with dire consequences. In the second crime i.e. Crime No.708 2019 the detenu alleged to have collected about Rs.2 lakhs from the de facto complainant on the same pretext. In the third crime i.e. Crime No.713 2019 the detenu alleged to have collected Rs.3 lakhs from the de facto complainant therein. In fourth crime i.e. Crime No.19 2020 the detenu alleged to have collected about Rs.1.6 lakhs from the de facto complainant. In fifth crime i.e. Crime No.29 2020 the detenu alleged to have collected around Rs.32 lakhs from the de facto complainant therein. A perusal of the record reveals that the detenu in greed of money resorted to illegal activities of collecting ARR J & Dr. SAJ W.P.No.201420 huge money from gullible public through on line as well as by cash under the guise of investing the same in stock market and cheated them with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. Further the material placed on record reveals that the detenu committed the alleged offences in quick succession. Here it is apt to state that the economic offences having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. Similarly white collar offence can have a large impact on the society. It is also called as a socio economic crime because it has a direct impact on the society which is far more costly than the ordinary crime. These white collar crimes by nature are such that the injury or the damage caused as a consequence of it is so widely diffused in the large body of citizens that their enormity as regards personage victim is almost trifling. Unfortunately in the last few years the country has been witnessing an alarming rise in white collar crimes which has affected the very fibre of the country s economic structure. Notwithstanding stringent legislations made to curb this evil it has not been possible to eradicate the same. Therefore any leniency in economic offence will send a wrong signal to the society at large. On the contrary a message must reach to such offenders that there shall not be any leniency shown with respect to such activities offences and the same shall be dealt with Iron hand. In State of Gujarat Vs. Mohanlal Jitamalji Porwal1 a 12 SCC 364 10 ARR J & Dr. SAJ W.P.No.201420 Division Bench of Hon’ble Supreme Court of India speaking through M.P.Thakkar J observed as under: “The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest.” In the instant case a perusal of the material placed on record reveals that the detenu was granted bail by the Courts concerned in all the five cases relied upon by the detaining for preventively detaining him. Under circumstances the contention of the respondents that the illegal activities of the detenu would disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order and there is imminent possibility of the detenu again indulging in similar prejudicial activities cannot be brushed aside. It is apt to state that preventive detention is different from punitive detention. While punitive detention could be enforced under ordinary criminal law the law of preventive detention can be enforced against habitual offenders to prevent them committing the future similar offences which are detrimental to the public interest disturbing the even tempo of life and causing damage to public health. The legal parameters for testing the validity of ‘preventive detention’ fundamentally vary from that of ARR J & Dr. SAJ W.P.No.201420 ‘punitive detention’. Also Public order is distinct from law and order . While individual offences without affecting public at large could be considered as violating law and order the offences that affect larger public and disturbs the even tempo of public life fall under the category of disturbance to public order and only in the latter category of cases the law of preventive detention shall be In the case of Madhu Limaye Vs. Sub Divisional Magistrate2. The Hon’ble Apex Court held as follows: “The acts which disturb public tranquility or are breaches of the peace should not be given a narrow meaning but should be given a liberal interpretation. For the expression ‘in the interest of public order’ is very wide amplitude.” In the case of Commissioner of Police & Others Vs. C.Anita 3 SCC 746 37 SCC 467 ARR J & Dr. SAJ W.P.No.201420 effect is confined only to a few individuals directly involved as distinct from a wide spectrum of the public it could raise problem of law and order only. It is the length magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting "public order" from that concerning law and order". The question to ask is: "Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed " This question has to be faced in every case on its facts." In the case of R. Kalavathi v. State of Tamil Nadu4 the Hon’ble Apex Court while dealing with the case affecting the public order observed that even a single act which has the propensity of affecting the even tempo of life and public tranquility would be sufficient for detention. 14. As per the clause of Section 2 of the P.D.Act a “White Collar Offender” “White collar offender” or “Financial Offender” means a person who commits or abets the commission of offences punishable under the Telangana Protection of Depositors of Financial Establishment Act 1999 or under sections 406 to 409 or 417 to 420 or under Chapter XVIII of the Indian Penal Code 1860. It is pertinent to state that the personal liberty of an individual which the law preserves and protects can also be taken away by following the procedure established by law when it is used to jeopardize the public good and not merely private interests. An order or detention is not a curative or reformative or punitive action but a preventive action the avowed object of 46 SCC 14 ARR J & Dr. SAJ W.P.No.201420 which is to prevent the anti social and subversive elements from imperiling the welfare of the people or the security of the nation or from disturbing the public tranquility or from indulging in white collar offences. In the instant case the commission of alleged offences by the detenu in a quick succession as indicated in the above table clearly demonstrates that the detenu under the pretext of investing money in the newly upcoming companies collected huge amount from the gullible people in an organized fashion played fraud on them and when they asked him to repay the money threatened them with dire consequences. The modus operandi of the detenu in the alleged offences which were committed in quick succession would certainly disturb the public peace and tranquility. So it is imperative upon the officers concerned to pass the order of detention since the acts of the detenu are prejudicial to the maintenance of public order. The illegal activities of the detenu were of such a reach and extent that they would certainly affect the even tempo of life and were prejudicial to the public order. The detaining authority had sufficient material to record subjective satisfaction that the detention of the detenu was necessary to maintain public order and even tempo of life of the community. The order of detention does not suffer from any illegality. The grounds of detention as indicated in the impugned order are found to be relevant and in tune with the provisions of the P.D.Act. Since the detenu got bail in all the five cases relied upon by the detaining authority there is nothing wrong on the part of the detaining authority in raising an apprehension that there is every possibility of the detenu committing similar offences which would again certainly affect the 14 ARR J & Dr. SAJ W.P.No.201420 public order. The quick succession of commission of alleged offences by the detenu makes it amply clear that there is every possibility of detenu committing similar offences in future which are prejudicial to the maintenance of public order. The material placed on record reveals that the detenu was supplied with the documents relied upon by the detaining authority in the language known to him i.e. Telugu besides English. The material relied on and circumstances show that the subjective satisfaction of the detaining authority is not tainted or illegal on any account. The facts and circumstances indicate that the acts of the detenu cannot be effectively dealt with under ordinary criminal law. Under these circumstances the detaining authority is justified in passing the impugned detention order. We do not see any merit in this Writ Petition and as such it is liable to be dismissed. 16. The Writ Petition is accordingly dismissed. There shall be no order as to costs. The miscellaneous petitions pending if any in this Writ Petition shall stand closed. A. RAJASHEKER REDDY J Dr. SHAMEEM AKTHER J Date: 31st March 2021 Note: Mark LR Copy. Bvv

TAMIL NADU MEDICAL OFFICERS’ ASSOCIATION & ORS VERSUS UNION OF INDIA & ORS

“List III of Seventh Schedule consists of items shared by both Union and the States In these writ petitions, Regulation 9(IV) and (VII), after amendment dated 05.04.2018 – Regulation 9(4) and (8) of the Post Graduate Medical Education Regulations, 2000, as framed by the Medical Council of India, were under challenge.This was subject matter of a Three-Judge Bench decision of this Court in State of Uttar Pradesh and Others v. Dinesh Singh Chauhan, reported in (2016) 9 SCC 749. There had been some minor amendments thereafter in Regulation 9. ISSUE BEFORE THE COURT: Whether the State is denuded of its power to legislate on the manner and method for admissions to Post Graduate Medical Courses because of the item falling in Union and Concurrent List? RATIO OF THE COURT:Learned senior counsel for the petitioners have vehemently contended that at least three Constitution Bench decisions of this Court, namely, R. Chitralekha and Another v. State of Mysore and Others, reported in (1964) 6 SCR 368, Kumari Chitra Ghosh and Another v. Union of India and Others, reported in (1969) 2 SCC 228 and Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others, reported in (2016) 7 SCC 353, have not been considered in Dinesh Singh Chauhan (supra), on the aspect of the legislative competence under List I, Entry 66 and List III, Entry 25 of the Seventh Schedule.It was the main contention of the petitioners that while “the coordination and determination of standards in institutions for higher education” is within the exclusive domain of the Union, medical education under Entry 25, List III, though made subject to Entry 66 of List I, being an Entry in the Concurrent List, the State is not denuded of its power to legislate on the manner and method for admissions to Post Graduate Medical Courses.It was also submitted that though Regulation 9(4) provides for 10% incentive for every year of service in remote/difficult/rural areas up to a maximum of 30% of the score, the provision will not be available to the benefit of the in-service candidates.It was pointed out by the counsel for the UoI that once an Entry is provided under List I, it is the exclusive domain of the Union and even if the Union has not legislated exhaustively in respect of that Entry, the State cannot legislate on that subject. He also submitted that all the contentions raised by the petitioners have been considered in Dinesh Singh Chauhan (supra) and, therefore, the writ petitions are only to be dismissed.The court was of the view that far as Modern Dental (supra) was concerned perhaps the judgment had not been published by the time the judgment in Dinesh Singh Chauhan (supra) was rendered. The petitioners raised several other contentions and invited the reference to the judgments by Benches of equal strength as in Dinesh Singh Chauhan (supra). In the above circumstances, the court held it appropriate that thee writ petitions require consideration by a larger Bench.DECISION HELD BY COURT:Accordingly, the court placed the matters before the Hon’ble the Chief Justice of India for consideration by a larger Bench, emergently.The petitioners were deemed free to make a mention on the 16th April, 2018 before Hon’ble the Chief Justice of India.

IN THE CIVIL ORIGINAL JURISDICTION WRIT PETITIONNO(S).196 2018 TAMIL NADU MEDICAL OFFICERS’ ASSOCIATION & ORS. PETITIONER(S UNION OF INDIA & ORS. RESPONDENT(S W.P.(C) NO. 252 2018 W.P.(C) NO. 295 2018 W.P.(C) NO. 293 2018 O R D E R Issue notice in the fresh writ petitions Standing Counsel for the concerned States Union of India and Medical Council of India appear and accept notice for the respective parties 3. In these writ petitions Regulation 9(IV) and VII) after amendment dated 05.04.2018 Regulation 9(4) and of the Post Graduate Medical Education Regulations 2000 as framed by the Medical Council of India are under challenge To get a comprehensive idea Regulation 9 to the extent relevant up to sub regulation reads as “9. Procedure for selection of candidate for Postgraduate courses shall be as follows: 1) There shall be a uniform entrance examination to all medical educational institutions at the Postgraduate level namely ‘National Eligibility cum Entrance Test’ for admission to postgraduate courses in each academic year and shall be conducted under the overall supervision of the Ministry of Health Family Welfare Government of The “designated authority” to conduct the ‘National Eligibility cum Entrance Test’ shall be the National Board of Examination or any other body organization so designated by the Ministry of Health and Family Welfare Government of India. In order to be eligible for admission to Postgraduate Course for an academic year it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in the ‘National Eligibility Cum Entrance Test for Postgraduate courses’ held for the said academic year. However in respect of candidates belonging to Scheduled Castes Scheduled Tribes and Other Backward Classes the minimum marks shall be at 40th percentile. In respect of candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act 2016 the minimum marks shall be at 45th percentile for General Category and 40th percentile for SC ST OBC. The percentile shall be determined on the basis of highest marks secured in the All India Common merit list in National Eligibility cum Entrance Test for Postgraduate Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility cum Entrance Test held for any academic year for admission to Postgraduate Courses the Central Government in consultation with Medical Council of India may at its discretion lower the minimum marks required for admission to Post Graduate Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the academic year only The reservation of seats in Medical Colleges institutions for respective categories shall be as per applicable laws prevailing in States Union Territories. An all India merit list as well as State wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility cum Entrance Test and candidates shall be admitted to Postgraduate Courses from the said merit lists only Provided that in determining the merit of candidates who are in authority weightage in the marks may be given by the Government Competent Authority as an incentive upto 10% of the marks obtained for each year of service in remote and or difficult areas or Rural areas upto maximum of 30% of the marks obtained in National Eligibility cum Entrance Test. The remote and or difficult areas or Rural areas shall be as notified by State Government Competent authority from time to time.” 5% seats of annual sanctioned intake capacity shall be filled up by persons with benchmark disabilities in accordance with the provisions of the Rights of Persons with Disabilities Act 2016 based on the merit list of National Eligibility Cum Entrance Test for admission to Postgraduate Medical Courses In order to be eligible for admission to Postgraduate Course for an academic year it shall be necessary for a candidate to obtain minimum of marks at 50thpercentile in the ‘National Eligibility Cum Entrance Test for Postgraduate courses’ held for the said academic year. However in respect of candidates belonging to Scheduled Castes Scheduled Tribes and Other Backward Classes the minimum marks shall be at 40th percentile. In respect of candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act 2016 the minimum marks shall be at 45th percentile for General Category and 40th percentile for SC ST OBC. No candidate who has failed to obtain the minimum eligibility marks as prescribed in Sub Clause above shall be admitted to any Postgraduate courses in the said academic year. colleges institutions 50% of the total seats shall be filled by State Government or the Authority appointed by them and the remaining 50% of the seats shall be filled by the colleges institutions on the basis of the merit list prepared as per the marks obtained in National Eligibility cum Entrance Test.” 50% of the seats in Postgraduate Diploma Courses shall be reserved for Medical Officers in the Government service who have served for at least three years in remote and or difficult areas and or Rural areas After acquiring the Postgraduate Diploma the Medical Officers shall serve for two more years in remote and or difficult areas and or Rural areas as defined by State Government Competent authority from time to time. …” This was subject matter of a Three Judge Bench decision of this Court in State of Uttar Pradesh and Others v. Dinesh Singh Chauhan reported in9 SCC 749. There have been some minor amendments thereafter in Regulation 9. The relevant consideration of Regulation 9 in Dinesh Singh Chauhanis at paragraphs 24 to 27 which read as follows: “24. By now it is well established that Regulation 9 is a self contained code regard ing the procedure to be followed for admis sions to medical courses. It is also well es tablished that the State has no authority to enact any law much less by executive instruc tions that may undermine the procedure for admission to postgraduate medical courses enunciated by the Central legislation and regulations framed thereunder being a sub ject falling within Schedule VII List I Entry 66 of the Constitutionof Regulation 9 mandates that there shall be a single National Eligi bility cum Entrance Test to be conducted by the 25.2. Clause provides for three per cent seats of the annual sanctioned intake capacity to be earmarked for candidates with locomotory disability of lower limbs. We are not concerned with this provision 25.3. Clauseprovides for eligibil ity for admission to any postgraduate course in a particular academic year 25.4. Clause is the relevant provi sion. It provides for reservation of seats in medical colleges institutions for reserved categories as per applicable laws prevailing in States Union Territories. The reservation referred to in the opening part of this clause is obviously with reference to reservation as per the constitutional scheme for the Scheduled Caste the Scheduled Tribe or the Other Backward Class candidates) and not for the in service candidates or medical officers in service. It further stipulates that all India merit list as well as State wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in NEET and the admission to post graduate courses in the State concerned shall be as per the merit list only. Thus it is a provision mandating admission of candidates strictly as per the merit list of eligible candidates for the respective medical courses in the State. This provision however con tains a proviso. It predicates that in deter mining the merit of candidates who are in service of the Government or a public author ity weightage in the marks may be given by the Government competent authority as an in centive @ 10% of the marks obtained for each year of service in specified remote or diffi cult areas of the State up to the maximum of 30% of the marks obtained in NEET. This pro vision even if read liberally does not pro vide for reservation for in service candi dates but only of giving a weightage in the form of incentive marks as specified to the class of in service candidates 6 SCR 368 Kumari Chitra Ghosh and Another v. Union of India and Others reported in 2 SCC 228 and Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others reported in 7 SCC 353 have not been considered in Dinesh Singh Chauhan on the aspect of the legislative competence under List I Entry 66 and List III Entry 25 of the Seventh Schedule. List I Entry 66 reads as follows: “66. Co ordination and determination of standards in institutions for higher education or research and scientific and Entry 25 of List III reads as follows: “25. Education including technical universities subject to the provisions of entries 63 64 65 and 66 of List I vocational and technical training of labour.” 8. The main dispute pertains to the claim made by the State for reservation in favour of the in service candidates in respect of 50% of the seats granted to the States since 50% of the seats in any case are set apart for All India category 9. It is the main contention of the petitioners that while “the coordination and determination of standards in institutions for higher education” is within the exclusive domain of the Union medical education under Entry 25 List III though made subject to Entry 66 of List I being an Entry in the Concurrent List the State is not denuded of its power to legislate on the manner and method for admissions to Post Graduate Medical Courses 10. It is submitted that though Regulation 9(4 provides for 10% incentive for every year of service in remote difficult rural areas up to a maximum of 30% of the score the provision will not enure to the benefit of the in service candidates. It is pointed out that the States have been following for several reasons and for several years the pattern of reservation in respect of 50% of State Quota for the in service candidates. It is submitted that even in that 50% the list can be prepared by providing the incentive for the service in difficult rural or remote areas. It is also pointed out that the Regulations also have considered the power of the State to provide for reservation. This can be seen from Regulation 9(8) which provides for reservation of 50% of the seats in Post Graduate Diploma Courses for medical officers in Government service in the State who have served for at least three years in remote and difficult areas with a further condition of minimum continued service of two years in such areas. It is also the contention of the petitioners that if there can be such a reservation in the case of Post Graduate Diploma Courses there is no justification for denying such a reservation in case of the Post Graduate Degree Courses 11. On behalf of the Union of India and the Medical Council of India it is pointed out that once an Entry is provided under List I it is the exclusive domain of the Union and even if the Union has not legislated exhaustively in respect of that Entry the State cannot legislate on that subject. Our reference has been invited to the decision of this Court in Gujarat University and Another v. Krishna Ranganath Mudholkar and Others reported in has not considered the legislative Entries in respect of the contentions we have noted above. Apparently it appears no such contentions were raised before the Court. Same is the situation with regard to the non reference with respect to the three Constitution Bench decisions we have referred to above. As far as Modern Dentalis concerned perhaps the judgment had not been published by the time the judgment in Dinesh Singh Chauhanwas rendered. 13. The petitioners have raised several other contentions and invited our reference to the judgments by Benches of equal strength as in Dinesh Singh Chauhan[MOHAN M. SHANTANAGOUDAR] NEW DELHI APRIL 13 2018 ITEM NO.55 COURT NO.5 SECTION X S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Writ Petition(s)(Civil) No(s). 196 2018 TAMIL NADU MEDICAL OFFICERS’ ASSOCIATION & ORS. Petitioner(s VERSUS UNION OF INDIA & ORS. Respondent(s W.P.(C) No. 252 2018No. 295 2018No. 293 2018(RENU DIWAN COURT MASTER ASSISTANT REGISTRAR Signed “Reportable” order is placed on the file

State is no ordinary party trying to win a case against one of its own citizens by hook or by crook: Supreme Court

The number of litigations in our country is increasing and the Central and the State Governments and their instrumentalities like banks, come to courts may be due to ego clash or to save the officers’ skin. The judicial system is overburdened which naturally causes a delay in the adjudication of disputes.  The Supreme Court has dismissed the appeal by Gujarat Maritime Board on the conduct of the Board betrays a callous and indifferent attitude, which in effect is that if Asiatic Steel wished for its money to be returned, it had to approach the court in case of the Chief Executive Officer and Vice-Chairman Gujarat Maritime Board vs Asiatic Steel Industries ltd and ors, CIVIL APPEAL NO. 3807 OF 2020 by the bench comprising of Justice Indira Banerjee and Justice S. Ravindra Bhat. The facts of the case are Gujarat Maritime Board issued a tender notice for allotment of plots at Sosiya for ship-breaking of very large crude carriers/ultra-large crude carriers.  Asiatic Steel made the highest bid, which was accepted and confirmed by the Board. Later, Asiatic Steel and other allottees approached the Board citing difficulties in commencing commercial operations, on account of the connectivity to the plots and the existence of rocks inhibiting beaching of ships on the plot for the purpose of ship-breaking. Through a letter, Asiatic steel intimated the Board that it wished to abandon the contract and demanded that the payment be refunded with interest at 10% per annum from the date of remittance. The Board, through a notice dated 19.05.1998, stated that an amount of ₹3, 61, 20,000/- would be refunded, but without interest. The Board also clarified that the refund would be directed to the original allottee of the plot. Asiatic Steel then filed a writ petition before the High Court, seeking a refund. Through an interim order dated 26.02.2002, the Board was directed to (i) refund the earnest money of ₹5,00,000/- with interest at 10% p.a., in accordance with the resolution of 17.12.2014; and (ii) pay interest of 6% on the Principal from 08.11.1994 to 19.05.1998. This interest amount works out to ₹76,47,544/-. The Board is, hence, aggrieved by the impugned judgment. In the opinion of this court, the Board’s conduct or indifference in regard to the refund sought can be only on the premise that it wished the parties to approach the court, till a decision could be taken to refund the amounts received by it. As a public body charged to uphold the rule of law, its conduct had to be fair and not arbitrary. If it had any meaningful justification for withholding the amount received from Asiatic Steel, such justification has not been highlighted ever. This behavior of deliberate inaction to force a citizen or a commercial concern to approach the court, rather than make a decision, justified on the anvil of reason means that the Board acted in a discriminatory manner. Relying on Dilbagh Rai Jarry v. Union of India, this court had quoted “But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State’s interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3807 OF 2020 Arising out of SLPNO(S). 28244 OF 2015) CHIEF EXECUTIVE OFFICER AND VICE CHAIRMAN GUJARAT MARITIME ...APPELLANT(S) ASIATIC STEEL INDUSTRIES LTD AND ORS. ...RESPONDENT(S) JUDGMENT S. RAVINDRA BHAT J. Leave granted. With consent the appeal was heard. This appeal is directed against a judgment of the High Court of Gujarat dated 24.07.2015. The respondenthad filed a writ petition before the High Court seeking refund of contract consideration of ₹3 61 20 000 paid by them to the appellant for ship breaking of „very large crude carriers ultra large crude carriers‟ with interest at 10% per annum from the date of remittance. The Board through a notice dated 19.05.1998 stated that an amount of ₹3 61 20 000 would be refunded but without interest. The Board also clarified that the refund would be directed to the original allottee of the plotrefund of USD $ 1 153 000 with interest of 12% per annum compounded quarterly to the third respondent M s Industeel Investment Holdingsandrefund of earnest money of ₹5 00 000 with interest of 12% per annum compounded quarterly to Asiatic Steel. Through an interim order dated 26.02.2002 the High Court held that prima facie Asiatic Steel was entitled to a refund with interest at 10% per annum. Accordingly the Board was directed to deposit the admitted amount 3 i.e. the Principal with interest at 10% p.a. with the court‟s Registry on or before 15.04.2002. The interest was to be calculated from 19.05.1998 up to 15.04.2002. The amount was permitted to be withdrawn by Respondent No. 3 with the consent of the other respondents. The Board made this deposit as directed by the court. survived to be determined: On 17.09.2014 the High Court determined that the following issues a) Whether interest on payment should be calculated from 24.03.1995 to 15.04.2002 or from 19.05.1998 b) Whether the earnest money of ₹5 00 000 should be refunded c) Whether interest should be calculated at 10% p.a. or 12% p.a. The Board resolved through a resolution dated 17.12.2014 to refund the earnest money deposit with interest of 10% calculated from 19.05.1998. On account of this development the High Court examined the issue of quantification of interest and held that so far as the amount that had already been refunded with interest at 10% was concerned no grievance could be raised by Asiatic Steel as it had initially claimed an interest of 10% in the letter to the Board dated 19.05.1998. In the case of the refund already made of the Principal and the earnest money deposit it was held that Asiatic Steel was not justified in claiming more than 10% interest. Neither party raised any grievance against the High Court‟s interim order dated 26.02.2002 fixing the interest at 10%. The only question then left to be decided was with respect to the date from which interest on the Principal was to be calculated and what the rate of interest was to be. The High Court held that the Board never claimed that it suffered any damage or loss due to Asiatic Steel‟s termination of the contract. The reasoning of the impugned judgment was that hence the Board was under a liability to compensate or pay reasonable interest for the period during which the money 4 was retained by it. The High Court took into consideration that Indusind was a Singaporean company and that the rate of interest was lower in developed countries. Accordingly the rate of interest was altered to 6% p.a. for the period during which the money was enjoyed by the Board. The Board was directed to i) refund the earnest money of ₹5 00 000 with interest at 10% p.a. in accordance with the resolution of 17.12.2014 andpay interest of 6% on the Principal from 08.11.1994 to 19.05.1998. This interest amount works out to ₹76 47 544 . The Board is hence aggrieved by the impugned judgment. Arguments Advanced It was contended on behalf of the Board that the subject matter of the present dispute was a contract. To determine whether the Board had to pay compensation for any benefit received under the contract it was imperative that breach of such contract should have been proved. Sections 64 and 65 of the Indian Contract Act 1872 contemplate return of benefit for a void voidable contract. It was submitted that these provisions do not apply when there is no allegation as to the contract being void. In any case the Board had already refunded the entire amount to Asiatic Steel. The learned counsel for the Board went on to submit that Section 73 and 75 of the Contract Act were inapplicable as breach was not proven or found and neither did the high court make a finding of rightful rescission of contract by Asiatic Steel. The sole basis of the High Court‟s direction to pay interest for the period from 08.11.1994 to 19.05.1998 was the Court‟s view that the Board had an obligation to compensate Asiatic Steel for its enjoyment of the principal during this period and because the Board had not shown that it suffered any loss on account of termination of the contract. Counsel urged that Asiatic Steel accepted and provided an undertaking of their satisfaction of the site in the contract 5 entered into between the parties. They then went on to abandon the contract on grounds of the site being rocky unsuitable for their commercial activities. 10. Counsel for Asiatic Steel on the other hand submitted that the Board took about 4 years to take action on its promise to create surrounding infrastructure and clear the rocks as well as the rocky island near plot V 10 which made it unviable for Asiatic Steel to commence business. The Board had agreed through its board meeting on 23.03.1995 to develop infrastructure and remove the rocks Asiatic Steel once again appraised the Board of the importance of removing the rocks through a letter dated 26.04.1996. Asiatic Steel even stated that it could take up the task of removing the rocks if the Board so desired. The request for removal of the rocks and the rocky formation near plot V 10 was repeated through another letter dated 22.05.1996. The other successful bidders for plots V 6 to V 9 also raised similar issues and approached the courts for relief. Asiatic Steel did not join those bidders and sought to deal with the matter amicably. Counsel submitted that since the Board did not actually carry out the promised work Asiatic Steel could not commence commercial production they were left with no option but to abandon the project and seek a refund. It was submitted that Asiatic Steel incurred heavy losses on account of interest costs from the date of remittance as well as losses on account of depreciation of the rupee over a period of three years. 11. When the Board failed to make the refund or discharge its duties Asiatic Steel filed a petition before the High Court. A civil suit claiming damages was also preferred at the City Civil Court Ahmedabad which was unconditionally withdrawn after seeking permission from the High Court which was granted through the order dated 26.02.2002. 12. The learned counsel submitted that on account of the Board‟s failure to remove the rocks Asiatic Steel could not take possession of the plot and therefore that interest is due from the date of deposit till the date of payment. It 6 was argued that the very fact that the Board agreed to refund the premium and the earnest money shows their acceptance that they have been unable to provide the promised plots. It was further submitted that all the other allottees had been paid interest on the amounts deposited by them. It was urged that the Board enjoyed the Principal amount from 08.11.1994 to 19.05.1998 and it was not a case where the possession of the plot was handed over and the contract was concluded. Asiatic Steel was deprived of a substantial amount that could not be utilized elsewhere during that period. It was submitted that interest was essentially compensation for denial of the right to utilize the money due. 13. Reliance was placed on Union of India Tr. Dir. of IT v. M s Tata Chemicals Ltd.1 where this court held that interest „…is a kind of compensation of use and retention of money collected unauthorizedly by the Department. When the collection is illegal there is corresponding obligation on the revenue to refund such amount with interest in as much as they have retained and enjoyed the money deposited.‟ 14. With regard to the question of whether Asiatic Steel raised objections regarding the unsuitability of the land for the purpose for which it had been tendered it was contended on its behalf that objections were raised prior to remitting a major part of the upset premium. The first objection on record was immediately after payment of the earnest money deposit after the allotment of the plot on 08.11.1994 through letter dated 23.02.1995. The payment of the premium was made on 22.03.1995. It was argued that no time period under the lease was consumed for any activity whatsoever on the plot and Asiatic Steel did not derive any benefit at all. It was categorically acknowledged and admitted in board meetings and letters that the plot was unusable and the contract was to be mutually abandoned. Considering that the Board agreed to refund the amount with interest it was argued that the consequence was that 1(2014) 6 SCC 335. 7 the money should be returned with interest from the date when it was enjoyed by the Board. 15. Asiatic Steel urged that the limited issue to be determined by this court is that of interest payment from when the remittance was made i.e. 22.03.1995 to 19.05.1998 when the contract was abandoned. Finally they submitted that this amount works out to ₹1 32 44 729 ₹1 06 95 783 and ₹81 46 837and V 9who were similarly situated to Asiatic Steel had approached courts for a decree and been refunded their deposits with interest pursuant to orders dated 14.08.1996 and 08.07.2002 respectively. 17. With this court‟s permission Asiatic Steel filed copies of RTI queries which had sought specific information with regard to amount paid to similarly placed bidders plot holders during settlement with the Board whether interest was paid to the bidders plot holders along with the principal and from what date this was paid andthe percentage of interest paid along with principal. 18. A response to the RTI query was received on 20.02.2020 in respect of the bidders for plots V 7 V 8 and V 9. The bidder for V 7 was paid an interest at 12% amounting to ₹22 80 743 for the period from 23.03.1995 30.11.1995. The bidder for V 8 was paid interest at 12% amounting to ₹3 55 068 for the period from 27.03.1995 30.11.1995. The bidder for V 9 was paid interest at 9% amounting to ₹2 12 500 for the period from 23.03.1995 30.11.1995. It was urged that in accordance with tender conditions the primary obligation to provide a suitable plot for ship breaking was that of the Board. 8 Counsel for Asiatic Steel submitted that the „as is where is‟ clause cannot be interpreted to mean that the Board can allot any piece of land that is of no utility to the bidder and be absolved of liability. In response to Asiatic Steel‟s contentions that identically situated bidders were paid interest at 10 12% were unsustainable it was contended on behalf of the Board in a response that interest was not payable under the terms of the contract with the present respondents. Further Asiatic Steel had allowed the plot to remain unused for almost half of the license concession period before rescinding the contract. It had verified the site before casting a bid it took a conscious decision to make the bid and pay the upset premium. It was further submitted that the Board had written to Asiatic Steel on 28.11.1995 informing them that the plot was ready in all respects and possession was required to be taken before 30.11.1995. The bidders for V 7 and V 8 were given interest only up till the date the plot holders were to take possession 30.11.1995. Asiatic Steel did not take possession. It was urged that the present case is a contractual dispute where without breach being proved against the Board interest was ordered as a „compensatory measure‟ that too under writ jurisdiction. 23. The Guidelines for Permission to Utilize Ship breaking Plots at Sosiya provided that permission shall be granted for a period of ten years from the date of issue of the permission letter after which the permission shall cease. The conditions applicable for grant of permission are provided under Clause 13 Clause 13(d) mandates that plot charges be paid in advance before issuance of the permission letter and plot charges for the next year are to be paid before the commencement of the relevant year. 9 24. Asiatic Steel was the highest bidder in an auction for five shipbreaking plots held on 08.11.1994. The Board received payment of the earnest money deposit of ₹5 00 000 on this day. Plot V 10 was allotted to Respondent No. 1 Asiatic Steel Industries Ltd.). M s Ganpatrai were the Indian shareholders of Asiatic Steel while M s Industeel was a foreign shareholder based in Singapore. The upset premium was remitted by Industeel in US currency on 22.03.1995. 25. The minutes of the meeting dated 23.02.1995 record that the shipbreakers including Asiatic Steel herein) informed the Board that certain rocks were required to be removed along plots V 6 to V 10 which hinder the beaching of ships. The Board agreed to prepare an estimate and invite tenders for the removal of these rocks. expressly stated in para 14 that: 26. The record shows that the notice inviting tenders issued by the Board “14. The tenderer may inspect the site at his own cost and shall be deemed to have acquainted himself fully with all the site conditions. 15. Tenderer shall be deemed to have read and understood the guidelines at Annexure one and the terms and conditions at annexure to.” 27. Such being the position it was nobody‟s case that Asiatic Steel was unaware about the site conditions. This is particularly important because it was willing to commit a substantial amount in foreign exchange for the plot which it bid for and was eventually granted. Likewise the requisite undertaking too was furnished on its behalf. It is in this background of circumstances that the claim for interest for the period in question requires examination. 28. The record relied upon by Asiatic Steel is in the form of three office orders issued by the Board. The first office order is dated 06.05.1996. This 10 order relates to Nyankaran Investment and Leasing Pvt. Ltd. This company had successfully bid for Plot Number V 7 and paid ₹ 2.74 crores. This company had deposited the entire amount on 23.03.1995. Upon being dissatisfied with the plot the company filed CA 8287 1995 in proceedings under Article 226 of the Constitution of India before the Gujarat High Court. Having regard to the observations made by the High Court the board sanctioned refund of the entire amount along with 12% interest by its order dated 06.05.1996. The amount paid by the Board as interest was ₹ 22.80 lakhs. The second instance relates to Svaminarayan ShipbreakingLtd Surat which had bid for a plot and paid ₹50 lakhs in two equal instalments. This company filed proceedings before the Gujarat High Court was ₹ 3.55 lakhs. The last instance is of Maaz MarineLtd Surat which had bid for a plotand paid the instalments. This company filed proceedings before the Gujarat High Court was ₹2.12 lakhs. This amount was sanctioned by office order dated 27.03.2000 even though the Board had decided to refund earlier however the amount was sanctioned later awaiting the decision of the civil court in an inter se dispute between the directors of Mazz Marine and the Board had decided to refund the amounts with one years‟ interest. Asiatic Steel therefore for reasons best known to it approached the court for refundto and interest first by filing a suit in 2001. In this court‟s opinion the claim for interest by Asiatic Steel and the response of the Board on that issue is to be judged in the light of both parties‟ conduct and what was expected of the Board as a state instrumentality. The claim in this case is essentially a monetary one and would ordinarily be premised upon breach of contract. Asiatic Steel therefore correctly approached the civil court by filing a suit2. Later apparently it was advised to resort to proceedings under Article 226 of the Constitution of India. When its writ petition was considered the suit was permitted to be withdrawn the High Court directed the Board to deposit the entire principal amount with interest at 10% per annum.3 By the final impugned judgment that order was confirmed. In an earlier order the court had in fact crystallized the precise issue to be whether interest was payable from 24.03.1995 or from 19.05.1998 or whether it was payable from the latter date till the date of deposit in court i.e. 15.04.2002. 33. Two important aspects need to be noticed at this stage: first on the one hand that Asiatic Steel was aware of the condition of the plot at an early stage when it bid for it. In this regard its conduct is to be judged in the light of the Board‟s inaction in regard to the unfitness of the allotted site as in the case of the other concerns. Two Asiatic Steel was no better and no worse than the other 2Suit No. 2961 2001 3By its order dated 26.02.2002 13 plot lessees who demanded refund of their amounts. The difference between them and Asiatic Steel was that the latter chose to demand refund on 19.05.1998. Asiatic Steel‟s final letter discloses its awareness that the other concerns approached the court earlier but that it waited as it wished to have the issue resolved amicably rather than moving the court for relief. In the opinion of this court that fact that Asiatic Steel and other concerns bid for the plots knowing the state they were in cannot be disputed. However the conduct of all the successful bidders consistently suggests that they expected that the plots would be given in usable condition within reasonable time. Clearly the Board could not and most certainly did not rectify the conditions by removing the beachfront rocks. The Board is not forthcoming about the reasons for its inaction. It urged two defences in its reply to the writ petition: one that the dispute was in the realm of contract and two that even though like in other cases the Board was prepared to consider a refund Asiatic Steel was a joint venture company. These in the opinion of this court are wholly insubstantial reasons. It is clear from the Board‟s conduct that it never responded to the letters written by Asiatic Steel at least no reply has been placed on record. Even Asiatic Steel‟s request for permission to carry out the necessary clearance work at the cost of the board was not responded to either positively or negatively. Further whenever any bidder approached the court complaining that the plot allotted was unusable the Board decided mostly contemporaneously to refund the amount even with interest. In the case of Asiatic Steel however when the demand was made for refund on 19.05.1998 the Board did not act forcing the company to approach the court firstly through a civil suit which was later withdrawn and then in a writ petition. In the opinion of this court the Board‟s complete silence in responding to Asiatic Steel‟s demand for refund coupled with the absence of any material 14 placed on record by it suggesting that the complaints had no substance leaves it vulnerable to the charge of complete arbitrariness. The Board‟s conduct or indifference in regard to the refund sought can be only on the premise that it wished the parties to approach the court till a decision could be taken to refund the amounts received by it. this court‟s considered view the Board‟s action is entirely unacceptable. As a public body charged to uphold the rule of law its conduct had to be fair and not arbitrary. If it had any meaningful justification for withholding the amount received from Asiatic Steel such justification has not been highlighted ever. On the other hand its conduct reveals that it wished that the parties should approach the court before it took a decision. This behavior of deliberate inaction to force a citizen or a commercial concern to approach the court rather than take a decision justified on the anvil of reasonmeans that the Board acted in a discriminatory manner. 38. Long ago in Dilbagh Rai Jarry v. Union of India 4 this court had quoted from a decision of the Kerala High Court approvingly5: “25. … But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook for the State s interest is to meet honest claims vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The layout on litigation costs and executive time by the State and its agencies is so staggering these 43 SCC 554 5 P.P. Abubacker v. Union of India AIR 1972 Ker 103 15 days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms giving the legal mentors of Government some initiative and authority in this Again in Gurgaon Gramin Bank v. Khazani6 this court stated that: “2. The number of litigations in our country is on the rise for small and trivial matters people and sometimes the Central and the State Governments and their instrumentalities like banks nationalised or private come to courts may be due to ego clash or to save the officers skin. The judicial system is overburdened which naturally causes delay in adjudication of disputes. Mediation Centres opened in various parts of our country have to some extent eased the burden of the courts but we are still in the tunnel and the light is far away. On more than one occasion this Court has reminded the Central Government the State Governments and other instrumentalities as well as to the various banking institutions to take earnest efforts to resolve the disputes at their end. At times some give and take attitude should be adopted or both will sink. Unless law of general serious questions of consideration or a question which affects a large number of persons or the stakes are very high the courts jurisdiction cannot be invoked for resolution of small and trivial matters. We are really disturbed by the manner in which those types of matters are being brought to courts even at the level of the Supreme Court of India and this case falls in that category.” importance arise In State of A.P. v. Pioneer Builders7 this Court referred to the 27th Report of the Law Commission on the Code of Civil Procedure and held as follows: “14. From a bare reading of sub section of Section 80 it is plain that subject to what is provided in sub sectionthereof no suit can be filed against the Government or a public officer unless requisite notice under the said provision has been served on such 6 2012SCC 781 712 SCC 119 16 Government or public officer as the case may be. It is well settled that before the amendment of Section 80 the provisions of unamended Section 80 admitted of no implications and exceptions whatsoever and are express explicit and mandatory. The section imposes a statutory and unqualified obligation upon the court and in the absence of compliance with Section 80 the suit is not maintainable. 54 IA 338 : AIR 1927 PC 176] Sawai Singhai Nirmal Chand v. Union of India1 SCR 986 : AIR 1966 SC 1068] and Bihari Chowdhary v. State of Bihar2 SCC 627] .) The service of notice under Section 80 is thus a condition precedent for the institution of a suit against the Government or a public officer. The legislative intent of the Section is to give the Government sufficient notice of the suit which is proposed to be filed against it so that it may reconsider the decision and decide for itself whether the claim in Bihari made could be accepted or not. As observed Chowdhary2 SCC 627] the object of the Section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation. 15. It seems that the provision did not achieve the desired results inasmuch as it is a matter of common experience that hardly any matter is settled by the Government or the public officer concerned by making use of the opportunity afforded by the said provisions. In the cases notice given under Section 80 remains most of unanswered. In its 14th Report the Law Commission while noting that the provisions of this section had worked a great hardship in a large number of cases where immediate relief by way of injunction against the Government or a public officer was necessary in the interests of justice had recommended omission of the Section. However the Joint Committee of Parliament to which the Amendment Bill 1974 was referred did not agree with the Law Commission and recommended retention of Section 80 with necessary modifications relaxations. 16. Thus in conformity therewith by the Code of Civil Procedure Act 1976 the existing Section 80 was renumbered as Section 80(1) and sub sections and were inserted with effect from 1 2 1977. Sub section carved out an 17 exception to the mandatory rule that no suit can be filed against the Government or a public officer unless two months notice has been served on such Government or public officer. The provision mitigates the rigours of sub section and empowers the court to allow a person to institute a suit without serving any notice under sub sectionin case it finds that the suit is for the purpose of obtaining an urgent and immediate relief against the Government or a public officer. But the court cannot grant relief under the sub section unless a reasonable opportunity is given to the Government or public officer to show cause in respect of the relief prayed for. The proviso to the said sub section enjoins that in case the court is of the opinion that no urgent and immediate relief should be granted it shall return the plaint for presentation to it after complying with the requirements of sub section though not relevant for the present case seeks to bring in the rule of substantial compliance and tends to relax the rigour of sub section[S. RAVINDRA BHAT] New Delhi November 24 2020.

Mandamus Writ- The issuance of disability certificate to differently abled children: High Court of Kerala

The Medical certificated and IQ test of special need and handicapped children is to be issued by Clinical Psychologists for the purpose to appear in an examination of Medical Board and could avail all the benefits given under welfare schemes of Differently abled children. This remarkable judgement was passed by honorable Kerala high court in case of Devashrayam Charitable Society v State of Kerala, Represented by Its Secretary, Health and Family, Secretariat, Thiruvananthapuram [WP(C). No.4993/2021] by The Honorable Chief Justice Mr.S.Manikumar & The Honorable Justice Shaji P.Chaly. The Petitioner Devashrayam Charitable Society, had filed the instant Public Interest Litigation, seeking for a mandamus writ and directing the respondents to immediately direct the issuance of certificated and IQ test to appear in upcoming Medical Boards in the State, and also to assess the available benefits provided for children with disability and handicapped Children. According to them “due to the Covid – 19 pandemic, the District Medical Boards, were not functioning regularly”. Respondent directed that since large number of applications were received in all the District for Medical Certificates, medical board had been temporarily suspended and that had resulted in non-production of certificate before the Educational Authorities so as to get assistance of a scribe for the differently abled children. The court after going through the material facts of the case opinioned that, “it could be seen that about 22545 children have to be examined, and having regard to the limited number of Clinical Psychologists, Additional Director of Health Department has been nominated, to draw up a panel of Clinical Psychologists, hold preliminary procedures and IQ tests, empanel the list of eligible children, so as to forward the same to the Medical Officer, and thereafter Special Medical Board have to be convened.” This court directed that, “Directorate of Health Services, Thiruvananthapuram, shall explore the possibility of fixing any specific date for convening Medical Boards, in each district. This should be in addition to regular examination, which is being conducted on every Wednesday in a month, to be continued alongside the special drive so contemplated. They may consider issuing directions to the District Medical Officers, for examination of the students, preliminary proceedings and IQ test by the Clinical Psychologists / identify of qualified psychologists, for the purpose of examination and empanelment of the children for examination of the Medical Board.” This court disposed the writ petition stating that, “Having regard to the plight of the differently abled children, their rights, and consequently issuance of certificates, so as to enable them to avail the benefits of any welfare measures, by the State / Central Governments, Directorate of Health Services, Thiruvananthapuram, the 2nd respondent, is directed to take appropriate decision and promptly too.”

WP(C).No.4993 OF 2021(S) 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY THE 16TH DAY OF MARCH 2021 25TH PHALGUNA 1942 WP(C).No.4993 OF 2021(S DEVASHRAYAM CHARITABLE SOCIETY REG.NO.209 96 THEKKETHARA MARUTHARODE PALAKKAD 678 007 KERALA INDIA REPRESENTED BY ITS SECRETARY MR.M.N.GOVIND S O.LATE N.K.NARI AGED 58 YEARS RESIDING AT 22 720 VISRAM M.P.MENON ROAD KUNNATHURMEDU PALAKKAD 678 013 BY ADV. SHRI.VINOD VALLIKAPPAN STATE OF KERALA REPRESENTED BY THE ITS SECRETARY HEALTH AND FAMILY WELFARE SECRETARIAT THIRUVANANTHAPURAM PIN 695 THE DIRECTOR OF HEALTH SERVICES DIRECTORATE OF HEALTH SERVICES GENERAL HOSPITAL JUNCTION THIRUVANANTHAPURAM PIN 695 035 R1 2 BY SRI. TEK CHAND SENIOR GOVERNMENT PLEADER THIS WRIT PETITIONHAVING COME UP FOR ADMISSION ON 16.03.2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING WP(C).No.4993 OF 2021(S) 2 JUDGMENT Dated this the 16th day of March 2021 S. Manikumar C.J Devashrayam Charitable Society represented by its Secretary Mr. M. N. Govind has filed the instant Public Interest Litigation seeking for a mandamus directing the respondents to immediately direct the convening of Special Medical Boards in the State so as to assess the disability of Special Need Children and the issuance of disability certificate to them. 2. Short facts leading to the filing of the writ petition are as According to the petitioner Devashrayam is a non political non religious and non sectarian Charitable Society with the main thrust to wipe away the stigma attached to mental illness and intellectual disability. The Society is presently the Convener of the Local Level Committee Palakkad under The National Trust Act WP(C).No.4993 OF 2021(S) 3 1999 catering to the needs of special needs children It has come to the notice of the petitioner that due to the Covid 19 pandemic the District Medical Boards which assess the disability and issues certificates to these children are not functioning regularly As such many of these children are unable to access the benefits of grants scholarships and attendant benefits due to them from the State and Central Governments. Petitioner submitted that most of the parents of the children come from very poor backgrounds with no proper knowledge or financial status and are unable to approach the authorities with their grievances Petitioner though involved in its service within the District of Palakkad seeks intervention of this Court to issue directions to the respondents to instruct convening of District Medical Boards in all districts of the State with specific dates set apart specifically for children with special needs both physically and mentally retarded as they are in urgent need of the certificates of disability 3. In support of the prayers sought for petitioner has raised the following grounds: WP(C).No.4993 OF 2021(S) 4 A. The convening of Medical Boards is necessary as the special needs and handicapped children as they are entitled to governmental grants and supports only on production of disability certificates from the concerned Medical Boards Acknowledging the fact that the Covid 19 pandemic has cast an ominous shadow and restricted the functioning of hospitals and consequently the convening of Medical Boards the respondents may be directed to convene special Medical Boards for assessing the disability of Special needs and handicapped persons and setting apart specific dates B. The absence of disability certificate adversely affects even the studies of children who are entitled to have assistance in writing exams. The specific case represented by Ext. P4 shows the plight of a parent who in the absence of a disability certificate was unable to get assistance of a scribe for her child to take part in the exams 4. When the matter came up for admission on 09.03.2021 on instructions Mr. Tek Chand learned Senior Government Pleader WP(C).No.4993 OF 2021(S) 5 made submissions. Recording the same we passed the following “On instructions Mr. Tek Chand learned Senior Government Pleader submitted that due to COVID 19 pandemic convening of Medical Board is suspended. Thereafter instructions have been issued to convene Medical Board and to consider pending applications for issuance of disability certificates. Documents have been produced to substantiate the contentions. But they are in vernacular language. 2. Mr.Vindo Vallikappan learned counsel for petitioner submitted that special children require medical certificates and there will be some difficulty in taking them to district centres. He prayed for a direction to convene Medical Board at Taluk Centres or such other places where special children could be brought for examination. It is also his contention that respondents may be directed to have a special drive for examining special children on a given day so as to avail the benefit of the welfare scheme 3. Learned Senior Government Pleader is directed to discuss the matter with the concerned and file a statement along with the supporting documents translated in English.” 5. Reverting on the basis of the statement dated 15.03.2021 filed by the Director of Health Services and the supporting documents Mr. Tek Chand learned Senior Government WP(C).No.4993 OF 2021(S) 6 Pleader submitted that a meeting has been convened by the Principal Secretary with the Secretary Government of Kerala and that it has been decided to conduct Medical Boards for the children. Statement of facts filed on behalf of respondent No. 2 and the supporting documents are reproduced “STATEMENT FILED ON BEHALF OF THE SECOND RESPONDENT AS PER THE DIRECTION OF THIS HONOURABLE COURT DATED 09.03.2021 “1. The above Writ Petition is filed to issue a Writ of Mandamus or any other appropriate Writ Order or Direction directing the respondents to immediately direct the convening of Special Medical Boards in the State so as to assess the disability of Special Need Children and the issuance of disability certificate to them. The foundation for seeking such a relief is that pursuant to Covid 19 pandemic issuance of Disability Certificate by medical boards have been temporary suspended and that has resulted in non production of certificate before the Educational Authorities so as to get assistance of a scribe for the differently 2. It is respectfully submitted that as per communication dated 10.12.2020 issued by this respondent to all the District Medical Officers it was directed that since large number of applications are received in all the District for Medical Board WP(C).No.4993 OF 2021(S) 7 Certificates medical board could be convened after observing Covid 19 protocol. A true copy of the communication dated 10.12.2020 is produced herewith and marked as Annexure R2(a 3. It submitted that the Director of Public Instruction as per communication dated 01.02.2021 sent to this respondent mentioned the number of children that were short listed for examination and selection by clinical Psychologist and for further evaluation by the Medical Board of those who are selected. Further it was stated therein that if a panel of Government Clinical Psychologist in the District level is constituted time bound IQ test can be conducted and certificates could be issued. A true copy of the communication of the Director of Public Instructions dated 00.00.2021 ts produced herewith and marked as Annexure R2(b). To Annexure R2(b) a communication dated 28.01.2021 was issued by this respondent A true copy of the communication dated 28.01.2021 is produced herewith and marked as Annexure R2(c). It is stated in Annexure R2(c) that the 13 clinical Psychologist with the Health Department would not be sufficient to examine 22545 children elisted and that going by number of children that are needed to be examined it would take 1700 children to be examined by one clinical Psychologist alone. Therefore it was pointed out therein that the services of the empaneled clinical Psychologist can be used for the purpose as decided in the meeting convened by the Director of Public Instructions. To draw up a panel of Clinical Psychologists the Additional Director of the Department was nominated. It was also stated therein that after the preliminary WP(C).No.4993 OF 2021(S) 8 proceedings and IQ test the list of eligible children could be forwarded to the District Medical Officer and Medical Board could be convened 4. It is submitted that pursuant to Annexure R2(c) letter a meeting was convened on 02.02.2021 by the Principal Secretary Health) with the Secretary and this respondent. In the meeting it was decided to conduct Medical Boards for the children selected by the Clinical Psychologist Thereupon as per communication issued to the all the District Medical Officers it was directed that Special Medical Board should be conducted to issue certificate to the deserving examination going students as per Right of Persons with Disabilities Act at the earliest. A true copy of the e mail communication dated 02.02.2021 is produced herewith and marked as Annexure R2(d). It is therefore clear that the department has taken to pro active measures to issue the certificates to children having special learning disabilities. As stated hereinbefore directions have already been given to conduct Special Medical Board to all the District Medical Officers so as to enable the children with learning difficulty to produce the certificate before the authorities for further action.” WP(C).No.4993 OF 2021(S) 9 WP(C).No.4993 OF 2021(S) 10 WP(C).No.4993 OF 2021(S) 11 WP(C).No.4993 OF 2021(S) 12 WP(C).No.4993 OF 2021(S) 13 6. In addition to the above Mr. Tek Chand learned Senior Government Pleader also submitted that in respect of issuance of SSLC Learning Disability Certificate special drives camps were conducted in Palakkad Ottappalam Pattambi Mannarkad and Alathur on various days and 2782 certificates were issued to the children Added further at the District Hospital Palakkad on every Wednesday camps are conducted for issuance of SSLC LD Certificates. Details of such camps conducted at the District Hospital Palakkad are as 1. December 2020 2 camps 2. January 2021 4 camps 3. February 2021 4 camps About 150 students have been issued with SSLC LD Certificates in the camps conducted at District Hospital Palakkad. 7. Though Mr. Vinod Vallikappan learned counsel for the petitioner prayed for a direction that special drives for examining the students be conducted on specific day in a week as per the details furnished by the learned Senior Government Pleader in so far as WP(C).No.4993 OF 2021(S) 14 issuing SSLC LD Certificate is concerned such camps are being conducted on various dates in Palakkad District and taking note of the recent Covid 19 pandemic fixing a specific date for all the children to be assembled at a place and the number of doctors and supporting staff to be engaged by the Government for treatment of Covid 19 patients we are of the view that it would not be advisable for us to fix any specific date for conducting special drive for examination for issuance of appropriate certificates and in the said circumstances it would be desirable to leave it to the Directorate of Health Services Thiruvananthapuram the 2nd respondent to fix any date dates for examination of children and issuance of necessary certificates. 8. Going through the material on record it could be seen that about 22545 children have to be examined and having regard to the limited number of Clinical Psychologists Additional Director of Health Department has been nominated to draw up a panel of Clinical Psychologists hold preliminary procedures and IQ tests empanel the list of eligible children so as to forward the same to the Medical Officer and thereafter Special Medical Board have to be convened. 9. Directorate of Medical Health Services in his letter dated WP(C).No.4993 OF 2021(S) 15 28.01.2021 addressed to the Director Directorate of Public Instruction Thiruvananthapuram has also stated that necessary Medical Boards to be constituted by the District Medical Officers and that the Boards so constituted will follow Covid 19 protocol. 10. In the light of the discussions above Directorate of Health Services Thiruvananthapuram the 2nd respondent shall explore the possibility of fixing any specific date for convening Medical Boards in each districts. This should be in addition to regular examination which is being conducted on every Wednesday in a month to be continued alongside the special drive so contemplated. 11. Judicial notice can also be taken that the public examinations for SSLC +2 have been postponed. Therefore the Directorate of Health Services Thiruvananthapuram the 2nd respondent may consider issuing directions to the District Medical Officers for examination of the students preliminary proceedings and IQ test by the Clinical Psychologists identify of qualified psychologists for the purpose of examination and empanelment of the children for examination of the Medical Board. WP(C).No.4993 OF 2021(S) 16 Having regard to the plight of the differently abled children their rights and consequently issuance of certificates so as to enable them to avail the benefits of any welfare measures by the State Governments Directorate of Health Services Thiruvananthapuram the 2nd respondent is directed to take appropriate decision and promptly too. Accordingly writ petition is disposed of. SHAJI P. CHALY P. A. TO JUDGE WP(C).No.4993 OF 2021(S) 17 PETITIONER S S EXHIBITS TRUE COPY OF THE REGISTRATION CERTIFICATE 17.07.1996 OF THE PETITIONER SOCIETY WITH ITS ENGLISH TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE PETITIONER DATED 03.12.2005 FROM THE OFFICE OF THE DIRECTOR OF SOCIAL WELFARE AS A REHABILITATION CENTRE FOR THE MENTALLY TRUE COPY OF THE REPRESENTATION DATED 03.09.2020 SUBMITTED BY THE PETITIONER TO THE DISTRICT MEDICAL OFFICER PALAKKAD ALONG WITH ITS ENGLISH TRUE COPY OF THE UNDATED REPRESENTATION TO THE DISTRICT MEDICAL OFFICER PALAKKAD WITH ITS ENGLISH TRANSLATION A COPY OF WHICH WAS SUBMITTED BEFORE 2ND RESPONDENTS ANNEXURES ANNEXURE R2A TRUE COPY OF THE COMMUNICATION DATED 10.12.2020 OF THE DIRECTOR OF HEALTH SERVICES ANNEXURE R2A TRUE COPY OF THE COMMUNICATION OF THE DIRECTOR OF PUBLIC INSTRUCTIONS DATED 00.01.2021 ANNEXURE R2A TRUE COPY OF THE COMMUNICATION DATED 28.01.2021 OF THE DIRECTOR OF HEALTH SERVICES. ANNEXURE R2A TRUE COPY OF THE E MAIL COMMUNICATION

The ambit and scope of the powers of the Magistrate under Section 319 of the Code: High court of Allahabad

Petitioner seek a direction to the respondent to recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection, and the same issue was held in the judgement passed by a single bench judge Hon’ble Dr Yogendra Kumar Srivastava, J. In the matter, Mishri Lal V/s  State of U.P. and Another [CRIMINAL REVISION No. – 3260 of 202] dealt with an issue mentioned above. The present criminal revision has been filed seeking to set aside the judgement and order dated 17.11.2021 passed by Additional Sessions Judge, Court No. 1, Mainpuri in Session Trial No. 316 of 2014 (State vs. Anoj Kumar), under Sections 307, 504 I.P.C., Police Station-Kishni, District-Mainpuri, arising out of Case Crime No. 266 of 2014, on the application of the opposite party no.2 filed under Section 319 of the Code of Criminal Procedure, 19731. The power to proceed against persons named in FIR with specific allegations against them, but not charge-sheeted, was reiterated in Rajesh and others Vs. The state of Haryana,4 and it was held that persons named in the FIR but not implicated in charge sheet can be summoned to face trial, provided during the trial some evidence surfaces against the proposed accused. The court perused the facts and arguments presented in the case  The power under Section 319 of the Code to summon even those persons who are not named in the charge-sheet to appear and face trial, being unquestionable and the object of the provision being not to allow a person who deserves to be tried to go scotfree by being not arraigned in the trial in spite of the possibility of his complicity which can be gathered from the evidence during the course of the trial, the order passed under Section 319 of the Code summoning the revisionist does not contain any material error so as to warrant inference. Click here to read the judgment

Court No. 85 Case : CRIMINAL REVISION No. 32621 Revisionist : Mishri Lal Opposite Party : State of U.P. and Another Counsel for Revisionist : Kamal Dev Rai Counsel for Opposite Party : G.A Hon ble Dr. Yogendra Kumar Srivastava J Heard Sri Kamal Dev Rai learned counsel for the applicant and Sri Arvind Kumar learned Additional Government Advocate appearing for the State opposite party The present criminal revision has been filed seeking to set aside the judgement and order dated 17.11.2021 passed by Additional Sessions Judge Court No. 1 Mainpuri in Session Trial No. 3114under Sections 307 504 I.P.C. Police Station Kishni District Mainpuri arising out of Case Crime No. 2614 on the application of the opposite party no.2 filed under Section 319 of the Code of Criminal Procedure 19731 Learned counsel for the revisionist has sought to assail the order passed by the court below by referring to the factual aspects of the case to contend that the revisionist has been falsely implicated in the criminal case. He has submitted that the jurisdiction under Section 319 of the Code is to be exercised in an extra ordinary situation where there is a strong possibility of the conviction of the accused who is proposed to be summoned and the powers are not to be exercised in a routine manner. It is further pointed out that the Investigating Officer did not find any material against the revisionist and no charge sheet having been submitted 1 The Code against him there was no further material on the basis of which the trial court could have summoned the revisionist Learned Additional Government Advocate I has controverted the assertions made by the counsel for the revisionist by drawing attention to the fact that the revisionist herein was named in the FIR and as per the FIR version he was assigned a specific role. Attention has been drawn to the fact that the testimony of PW 1 and PW 2 during the course of trial have pointed to the complicity of the revisionist and his clear role in the incident. It is also contended that the testimony before the trial judge would have to be given more weight than the report submitted by the Investigating Officer pursuant to the The ambit and scope of the powers of the Magistrate under Section 319 of the Code were considered in the Constitution Bench judgment of the Supreme Court in Hardeep Singh and Others vs. State of Punjab2. Referring to the object of the provision it was held that the object of the provision is that the real culprit should not get away unpunished and in a situation where the investigating agency for any reason does not array one of the real culprits as an accused the court is not powerless in calling the said accused to face trial. It was stated thus : “8.The constitutional mandate under Articles 20 and 21 of the Constitution of India 1950 provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly the law was appropriately codified and modified by the legislature under CrPC indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time the guilty are brought to book under the law. It is these 2 3 SCC 92 ideals as enshrined under the Constitution and our laws that have led to several decisions whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished. 9. The presumption of innocence is the general law of the land as every man is presumed to be innocent unless proven to be guilty Alternatively certain statutory presumptions in relation to certain class of offences have been raised against the accused whereby the presumption of guilt prevails till the accused discharges his burden upon an onus being cast upon him under the law to prove himself to be innocent. These competing theories have been kept in mind by the legislature. The entire effort therefore is not to allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial and in our opinion in order to achieve this very end that the legislature thought of incorporating provisions of Section 319 Code of Criminal Procedure. It is with the said object in mind that a constructive and purposive interpretation should be adopted that advances the cause of justice and does not dilute the intention of the statute conferring powers on the court to carry out the abovementioned avowed object and purpose to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is the subject matter of trial. 12. Section 319 Code of Criminal Procedure springs out of the doctrine judex damnatur cum nocens absolviturand this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC It is the duty of the court to do justice by punishing the real culprit Where the investigating agency for any reason does not array one of the real culprits as an accused the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC 17. Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it. Thus the person against whom summons are issued in exercise of such powers has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the chargesheet filed under Section 173 Code of Criminal Procedure or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence. 18. The legislature cannot be presumed to have imagined all the circumstances and therefore it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot free by being not arraigned in the trial in spite of possibility of his complicity which can be gathered from the documents presented by 19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and therefore it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused at times get away by manipulating the investigating and or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.” As regards the degree of satisfaction required for invoking the powers under Section 319 of the Code it was held that the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence if goes unrebutted would lead to conviction. It was observed as follows : “105. Power under Section 319 Code of Criminal Procedure is a discretionary and an extra ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 106. Thus we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross Examination it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence if goes unrebutted would lead to conviction. In the absence of such satisfaction the court should refrain from exercising power under Section 319 Code of Criminal Procedure. In Section 319 Code of Criminal Procedure the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” is clear from the words "for which such person could be tried together with the accused." The words used are not “for which such person could be convicted”. There is therefore no scope for the Court acting under Section 319 Code of Criminal Procedure to form any opinion as to the guilt of the accused. The question as to in what situations the power under the section can be exercised in respect of persons not named in the FIR or named in the FIR but not charge sheeted or discharged was also considered and it was held that a person whose name does not appear even in the FIR or in the charge sheet or whose name appears in the FIR and not in the charge sheet can still be summoned by the court provided the conditions under the section stand fulfilled. It was observed as follows : “111. Even the Constitution Bench in Dharam Palhas held that the Sessions Court can also exercise its original jurisdiction and summon a person as an accused in case his name appears in Column 2 of the chargesheet once the case had been committed to it. It means that a person whose name does not appear even in the FIR or in the chargesheet or whose name appears in the FIR and not in the main part of the chargesheet but in Column 2 and has not been summoned as an accused in exercise of the powers under Section 193 Code of Criminal Procedure can still be summoned by the court provided the court is satisfied that the conditions provided in the said statutory provisions stand fulfilled. 117.6 A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Code of Criminal Procedure provided from the evidence it appears that such person can be tried along with the accused already facing trial. However in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Code of Criminal Procedure has to be complied with before he can be summoned afresh. ” The word evidence as used under Section 319(1) of the Code was also considered and it was held as follows : “84. The word "evidence" therefore has to be understood in its wider sense both at the stage of trial and as discussed earlier even at the stage of inquiry as used under Section 319 Code of Criminal Procedure.The court therefore should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial. 85. In view of the discussion made and the conclusion drawn hereinabove the answer to the aforesaid question posed is that apart from evidence recorded during trial any material that has been received by the court after cognizance is taken and before the trial commences can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Code of Criminal Procedure. The “evidence” is thus limited to the evidence recorded during trial. ” The principles with regard to exercise of power by the court to summon an accused under Section 319 of the Code were reiterated in S. Mohammed Ispahani Vs. Yogendra Chandak and others3 and it was held that the power under Section 319 to summon even those persons who are not named in the charge sheet to appear and face trial is unquestionable. It was observed thus : “28.Insofar as power of the Court Under Section 319 of the Code of Criminal Procedure to summon even those persons who are not named in the charge sheet to appear and face trial is concerned the same is unquestionable. Section 319 of the Code of Criminal Procedure is meant to rope in even those persons who were not implicated when the charge sheet was filed but during the trial the Court finds that sufficient evidence has come on record to summon them and face the trial. In Hardeep Singh s case the Constitution Bench of this Court has settled the law in this behalf with authoritative pronouncement thereby removing the cobweb which had been created while interpreting this provision earlier. As far as object behind Section 319 of the Code of Criminal Procedure is concerned the Court had highlighted the same as under: 19.The court is sole repository of justice and a duty is cast upon it to uphold the Rule of law and therefore it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused at times get away by manipulating the investigating and or the prosecuting agency. The desire to avoid trial is so strong that an Accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence. The power to proceed against persons named in FIR with specific allegations against them but not charge sheeted was reiterated in Rajesh and others Vs. State of Haryana 4 and it was held that persons named in the FIR but not implicated in charge sheet can be summoned to face trial provided during the trial some evidence surfaces against the proposed accused The exercise of powers under Section 319 of the Code for summoning an additional accused again came up for consideration in Saeeda Khatoon Arshi Vs. State of Uttar Pradesh and another5 and it was held that it is the duty of the court to give full effect to the words used by the legislature so as to encompass any 3 16 SCC 226 4 6 SCC 368 2020) 2 SCC 323 situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot free by being not arraigned in the trial inspite of the possibility of his complicity which can be gathered from the documents presented by the prosecution In the facts of the present case the court below has taken note of the fact that the revisionist was not only named in the F.I.R. but he was also assigned a role in the incident. The testimony of P.W. 1 and P.W. 2 being indicative of the complicity of the revisionist have also been referred and in particular their statements that at the time of the incident the revisionist was present at the spot and it was the licensed weapon of the revisionist which was used by the principal accused for causing the firearm injuries. Upon considering the settled legal position with regard to exercise of powers under Section 319 the court below has passed the order summoning the revisionist The FIR version as also the evidence before the trial judge being indicative of the complicity of the revisionist though not arraigned as an accused in the charge sheet it was open to the trial court to form a view that the revisionist be tried together with the other accused and for the said purpose summon the revisionist in exercise of powers under Section 319 of the Code The broad principles which have been laid down for exercise of powers under Section 319 of the Code underline the object of the enactment that the real perpetrator of the offence should not get away unpunished and in a situation where the investigating agency for any reason does not array any culprit as an accused the court would not be powerless in calling the accused to face trial rather it would be duty of the court to do justice by punishing the real culprit The test which has been laid down with regard to the degree of satisfaction required for invoking the powers under Section 319 is one which is more than prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence if goes unrebutted would lead to conviction The power to proceed under Section 319 has also been held to be exerciseable in respect of persons though named in the FIR but not charge sheeted provided the court is satisfied that the conditions provided under the section stand fulfilled. Section 319of the Code envisages that where in the course of any inquiry into or trial of an offence it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused the Court may proceed against such person for the offence which he appears to have committed The word evidence used under Section 319of the Code has been held to be understood to refer to the evidence recorded during trial and also any material that has been received by the court after cognizance is taken and before the trial commences to be utilized for corroboration and to support the evidence recorded by the court. The evidence recorded by the court during trial is thus to be accorded primacy and for the purpose of exercise of power under Section 319 of the Code would have to be given weight over the material which was collected during the course of investigation The contention which has been sought to be raised placing reliance upon the material collected by the investigating officer during the course of investigation for the purpose of exercise of powers under Section 319 of the Code thus cannot be accepted. The power under Section 319 of the Code to summon even those persons who are not named in the charge sheet to appear and face trial being unquestionable and the object of the provision being not to allow a person who deserves to be tried to go scot free by being not arraigned in the trial inspite of possibility of his complicity which can be gathered from the evidence during the course of trial the order passed under Section 319 of the Code summoning the revisionist does not contain any material error so as to warrant inference The aforementioned legal position has been considered in detail in recent decisions of this Court in Adesh Tyagi vs. State of U.P. and Another6 and Upendra @ Mohit vs. State of U.P. and 22. Counsel for the applicant at this stage submits that he does not dispute the aforementioned legal position with regard to the exercise of powers under Section 319 of the Code and states that the applicant would submit to the jurisdiction of the court below and seek bail It goes without saying that in case any such application is moved the court below would be expected to dispose it of in accordance with the settled principles of law Subject to the aforesaid observation the revision stands Order Date : 4.12.2021 Dr. Y.K. Srivastava J 2021ACC 484 7 Criminal Revision No. 19821 decided on 07.10.2021

Courts do not have the right to change the name of their respective court – Allahabad High Court

Courts do not have the right to change the name of their respective court – Allahabad High Court While squashing the plea to rename the Court as Prayagraj High Court or Uttar Pradesh High Court held that in a constitutional democracy, all organs of the State, i.e. executive, legislature and judiciary, are required to act and performed their respective functions within the limits prescribed by the Constitution of India held by Justice Pankaj Kumar Jaiswal and Justice Dinesh Kumar Singh in the case of Asok Pande Vs UOI [PIL Civil No 14171 of 2020]. The State Government changed the name of the city of Allahabad to Prayagraj on 16 October 2018 and, in this backdrop, this petition has been filed by an advocate. The Court briefly discussed the history of setting up this Court. East India Company, which was incorporated by Charter of 1600, got amalgamated with English East India Company. In due course, the East India Company conquered vast territory and became the Ruler. The East India Company strengthened its hold on the native Indians. First major freedom movement exposed the vulnerability of the East India Company which led the Queen to issue a proclamation in the year 1858 and the British Parliament passed the Government of India Act, 1858. Consequently, the East India Company and its affairs were taken over by the British Government. The British Government wanted to establish judicial institutions for rendering better justice to alleviate the corrupt practice in the judicial system. For the aforesaid purpose, the British Parliament passed ‘Indian High Courts Act, 1961’. Under this Act, provisions were made not only for the replacement of the Supreme Courts of Calcutta, Madras and Bombay and for the establishment of High Courts in their places, but also for the establishment of High Court by Letter Patent in any part of other Majesty’s territories, not already included in the jurisdiction of any other High Court. The Court further reflected that “In 1864, the Secretary of State for India asked the Governor-General in council ‘to take into your consideration the question of establishing High Court in the North-Western Provinces and furnish me with your opinion on the subject at an early date as practicable. Four years later from the establishment of three High Courts in Presidency Towns, on 16th March 1866, the High Court of Judicature for the North-Western Provinces came into existence under Letters Patent, replacing the only Sudder Diwani Adalat and Nizamut Adalat. Letters Patent, as subsequently amended, are the present Charter of High Court of Judicature at Allahabad. Aforesaid Charter conferred jurisdiction upon newly formed High Court in respect of Civil, Criminal, Testamentary and Interstate as well as Matrimonial matters. The first sitting of High Court took place at Agra in 1866, but in 1868 it was shifted to Allahabad.” In 1902, a new name to two Provinces was given i.e. ‘United Province of Agra and Oudh’. It became ‘Uttar Pradesh’ in1950 under the United Provinces (Alteration of Name) Order, 1950. By Government of India Act, 1915-1919, the name of ‘High Court for the North-Western Provinces’ was changed to ‘High Court of Judicature at Allahabad’. All the enactments have now been consolidated and repealed by the provisions of the Constitution of India which came into force on 26th January 1950. The Court held that “With the aforesaid historical backdrop, it is evident that High Court of Allahabad was created by Royal Charter. Initially, it was called as ‘High Court of Judicature for North Western Provinces’ which had the area of aforesaid Province but Oudh was a different Province, not governed by North-Western Provinces. ‘High Court of Judicature for North Western Provinces’ subsequently became ‘High Court of Judicature at Allahabad’.” The Court further reiterated that, “Article 225 of the Constitution of India deals with the High Court, existing at the time of enacting the Constitution of India, which allowed the existing High Court to continue with respective powers as were exercising immediately before the commencement of the Constitution. Article 215 provides that there shall be a High Court for each State. Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.” By the aforesaid provision, the court interjected that “By virtue of Article 372 until and unless the Parliament amends the amalgamation order, the name of the high court, which is ‘High Court of Judicature at Allahabad’ cannot be changed.” High Court held that “The Courts cannot direct the Legislature to enact a particular law and, therefore, this Court finds that the present writ petition is nothing but a ‘publicity stunt litigation’ which has been filed to get some publicity.” Finally, the petition has been dismissed, but Court refrained from imposing cost as the petitioner was none other than a practising Advocate of this Court. Click here to read the judgement

Court No. 1 Case : P.I.L. CIVIL No. 141720 Petitioner : Asok PandeTehsildar 2) Assistant or Extra Assistant Commissioner Deputy Commissioner or Civil Judge of LucknowCommissioner andOrder 1950of Government of India Act 1915 1919 the name of ‘High Court for the North Western Provinces’ was changedto “High Court of Judicature at Allahabad”. The High Court at Fort William in Bengal was made as “High Court of Judicature at Calcutta” Court of ‘Judicial Commissioner’ in Oudh Avadh came to an end with passage of ‘Oudh Court s Act’ U.P. Act No. 4 of 1925 hereinafter referred to as “U.P. Act 1925”) which also paved the way for establishment of ‘Chief Court’ for Oudh consisting of a Chief Judge and four or more Judges who shall be appointed by Governor General in Council. Section 8 and 9of U.P. Act 1925 provided that ‘Chief Court’ would be deemed to be ‘highest Court of appeal and revision’ for civil appellate jurisdiction and criminal jurisdiction. By Section 21 of U.P Act 1925 four grades of Civil Courts in Oudh were contemplated as under 1) The Court of the District Judge 2) The Court of Additional Judge 3) The Court of the Subordinate Judge 4) The Court of the Munsif 12. Government of India Act of 1915 1919 was repealed and replaced by the Government of India Act 1935. Chapter II of Part IX of the Government of India Act 1935 provided for the administration and powers of the High Court. By Government of India Act 1935 Chief Court in Oudh was included within the meaning of High Court Sections 219 to 229 of the Government of India Act 1935 gave power to British Crown to constitute High Court by Letters Patent for any province or any part thereof or reconstitute in like manner an existing High Court for that province or for any part thereof or where there are two High Courts in that province amalgamate that Courts. The Indian Independence Act was passed in 1947. In 1948 Governor General in exercise of powers under Section 229 of the Government of India Act 1935 issued U.P. High Courts Order 1948 published in gazette of Government of India. Clause III of the Amalgamation Order from appointed date i.e. 26thJuly 1948 provided that High Court in Allahabad and the Chief Court in Oudh shall be amalgamated and constitute one High Court in the name of ‘High Court of Judicature at Allahabad’. All these enactments have now been consolidated and repealed by the provisions of the Constitution of India which came into force on 26thJanuary 1950 13. With the aforesaid historical backdrop it is evident that High Court of Allahabad was created by Royal Charter. Initially it was called as ‘High Court of Judicature for North Western Provinces’ which had the area of aforesaid Province but Oudh was a different Province not governed by North Western Provinces. ‘High Court of Judicature for North Western Provinces’ subsequently became ‘High Court of Judicature at Allahabad . 14. Chapter V of Part VI of the Constitution of India deals with administration and powers of the High Courts. Articles 214 231 deal with the High Courts. Therefore all the previous enactments dealing with establishment administration and affairs of the High Court are deemed to be replaced by Articles 214 231 of the Constitution of India thereby Letters Patent were also deemed to be replaced. 15. Article 225 of the Constitution of India deals with the High Court existing at the time of enacting the Constitution of India which allowed the existing High Court to continue with respective powers as were exercising immediate before the commencement of the Constitution. The said provisions are quoted hereunder: Article 225. Jurisdiction of existing High Courts.— Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution the jurisdiction of and the law administered in any existing High Court and the respective powers of the Judges thereof in relation to the administration of justice in the Court including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts shall be the same as immediately before the commencement of this Constitution Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction 16. Article 372 provides for continuance in force of existing laws and their adoption which reads as under “Article 372. Continuance in force of existing laws and their adaptation.—(1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority 2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution the President may by order make such adaptations and modifications of such law whether by way of repeal or amendment as may be necessary or expedient and provide that the law shall as from such date as may be specified in the order have effect subject to the adaptations and modifications so made and any such adaptation or modification shall not be questioned in any court of law 3) Nothing in clauseshall be deemed— a) to empower the President to make any adaptation or modification of any law after the expiration ofto prevent any competent Legislature or other competent authority from repealing or amending any law adapted or modified by the President under the said clause Explanation I.—The expression “law in force” in this article shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed notwithstanding that it or parts of it may not be then in operation either at all or in particular areas Explanation II.—Any law passed or made by a Legislature or other competent authority in the territory of India which immediately before the commencement of this Constitution had extra territorial effect as well as effect in the territory of India shall subject to any such adaptations and modifications as aforesaid continue to have such extra Explanation III.—Nothing in this article shall be construed as continuing any temporary law in force beyond the date fixed for its expiration or the date on which it would have expired if this Constitution had not come into force Explanation IV.—An Ordinance promulgated by the Governor of a Province under Section 88 of the Government of India Act 1935 and in force immediately before the commencement of this Constitution shall unless withdrawn by the Governor of the corresponding State earlier cease to operate at the expiration of six weeks from the first meeting after such commencement of the Legislative Assembly of that State functioning under clauseof Article 382 and nothing in this article shall be construed as continuing any such Ordinance in force beyond the said period 17. All laws in force in territory of India would govern not only enactment of the Indian Legislatures but also the common law of the land which was being administered by Courts in India. The same included not only the present law but also the rules of the English Common Law such as rules of interpretation of statues etc. (AIR 192 Bombay 214). The State Government changed the name of city of Allahabad to Prayagraj on 16thOctober 2018 and in this backdrop this petition has been filed 18. Article 215 provides that there shall be a High Court for each State. Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt 19. By virtue of Article 372 until and unless the Parliament amends the amalgamation order the name of the high court which is ‘High Court of Judicature at Allahabad’ cannot be changed. When the petitioner was put a question during the course of arguments that who could change the name of the High Court he did not give answer. In constitutional democracy all organs of the State i.e executive legislature and judiciary are required to act and performed their respective functions within the limits prescribed by the Constitution of India. The separation of powers is the foundation of functioning of a democratic polity governed by rule of law. One organ should not encroach upon the power and functions of other organs The Courts cannot direct the Legislature to enact a particular law and therefore this Court finds that the present writ petition is nothing but a ‘publicity stunt litigation’ which has been filed to get some publicity If the petitioner is so concerned he should convince the Parliament for change of name of the High Court. This Court is not empowered to direct the Parliament or State Legislature to enact a particular law and therefore we find this petition a frivolous petition which has been filed with sole purpose of gaining some publicity. We therefore dismiss this petition but refrain ourselves from imposing cost as the petitioner is none other than a practicing Advocate of this Court Order Date: 31.08.2020 Digitally signed by PANKAJ KUMAR JAISWALDN: C=IN O=Personal PostalCode=482001 S=MADHYA PRADESH SERIALNUMBER=c052265a862770d8fcbbda965136bbb2dd4b2337fe9607999f74159818cea6a6 CN=PANKAJ KUMAR JAISWALReason: I am the author of this documentLocation: your signing location hereDate: 2020 09 22 17:34:49Foxit Reader Version: 9.5.0PANKAJ KUMAR JAISWALDigitally signed by Justice Dinesh Kumar SinghDN: C=IN S=Uttar Pradesh Phone=938c9813791219de658b135aefc17622749e67d38a4946c8b2779ce6749b516a PostalCode=226001 STREET="Suit No. 102 HIgh Court Guest House Kaiserbagh Lucknow" OU=judge high court allahabad O=ALLAHABAD HIGH COURT CN=Justice Dinesh Kumar SinghReason: I am the author of this documentLocation: your signing location hereDate: 2020 09 22 17:35:35Foxit Reader Version: 9.5.0Justice Dinesh Kumar Singh

Ocular evidence is considered the best evidence unless there are reasons to doubt it: The Supreme Court of India

It is only in a case where there is a gross contradiction between medical evidence and oral evidence, and the medical evidence makes the ocular testimony improbable and rules out all possibility of ocular evidence being true, the ocular evidence may be disbelieved. The Aforesaid has been established by the SC in the case of Pruthiviraj Jayantibhai Vanol Vs. Dinesh Dayabhai Vala [ CrA 177 OF 2014] which was decided upon by a two-judge bench comprising Justices Navin Sinha and R. Subhash Reddy on 26 July 2021. The facts of the case are as follows. In this case, the High Court had reversed the Trial Court order convicting the accused on the ground that the evidence of the eye­witnesses is inconsistent with the medical evidence, regarding the nature of injuries vis­à­vis the weapons of offence. The deceased was assaulted on 01.10.2003 at 2:30 am while he was returning on a motorcycle along with the witness who was the pillion rider. The respondents are said to have assaulted with iron pipe, steel rod and stick, causing three stab wounds and nine incised wounds. It was submitted by the counsel for appellants that there was no inconsistency between the ocular and medical evidence. The High Court erred in the appreciation of evidence by failing to take not that the iron rod had a sharp edge by which the injuries on the deceased were possible. It is only if the medical evidence was totally inconsistent with the ocular evidence, the former was to be given precedence. Reliance was placed on Solanki Chimanbhai Ukabhai vs. State of Gujarat, 1983 (2) SCC 174 and State of U.P. vs. Krishna Gopal and Another, 1988 (4) SCC 302 and Baleshwar Mahto vs. State of Bihar, 2017 (3) SCC 152. On the contrary, learned counsel appearing on behalf of the first three respondents, the fourth one absconding till date, relying on Ramesh Babulal Doshi vs. State of Gujarat,1996 (9) SCC 225, Dhanna vs. State of M.P. with Kanhiyalal and another vs. State of M.P., 1996(10) SCC 79, and Ghurey Lal vs. State of Uttar Pradesh, 2008(10) SCC 450, submitted that in an appeal against acquittal if two views are possible, the benefit of doubt should be given to the accused. The Court perused the facts and arguments presented. The bench, referring to evidence on record, addressed the contention that identification was not possible in the night to give them the benefit of doubt. It was of the opinion that “The aforesaid discussion leads us to the conclusion that the acquittal by the High Court is based on misappreciation of the evidence and the overlooking of relevant evidence thereby arriving at a wrong conclusion. It is not a case where two views are possible or the credibility of the witnesses is in doubt. Neither is it a case of a solitary uncorroborated witness. The conclusion of the High Court is therefore held to be perverse and irrational. The acquittal is therefore held to be unsustainable and is set aside. In the nature of the assault, Section 304 Part II, IPC has no application. The conviction of respondent nos. 1 to 4 by the Trial Court is restored.”

conviction of respondents 1 to 4 under Sections 302 34 120B of the Indian Penal Code sentencing them to life imprisonment and fifteen days imprisonment under Section The deceased was assaulted on 01.10.2003 at 2:30 am was the pillion rider. The respondents are said to have assaulted with iron pipe steel rod and stick causing three stab PW­10 is inconsistent with the medical evidence regarding the behalf of the appellant submitted that the First Information naming the four respondents. The deceased PW­2 and the PW­12 had deposed that the respondents had threatened the an independent witness PW­10 the security guard of the bungalow near which the occurrence took place. There were Dr. Vishwamitra whose signatures he identified had noted that The postmortem report as deposed by the Doctor PW­1 to 4 which were on the head were sufficient to cause death possible. It is only if the medical evidence was totally inconsistent with the ocular evidence the former was to be given precedence. Reliance was placed on Solanki and State of U.P. vs. Krishna Gopal and Another 1988SCC 225 Dhanna vs. State of M.P. with Kanhiyalal and another vs. State of M.P. 1996(10) SCC 79 and Ghurey Lal vs. State of Uttar Pradesh 2008(10) SCC are possible the benefit of doubt should be given to the not possible by a steel rod or iron pipe. The genesis of the Court therefore calls for no interference. The recovery of the witnesses PW­4 and PW­5 have both turned hostile. There is dark night with no moonlight even. Identification of the injuries on the person of the deceased. PW­1 acknowledged In view of the variation between the ocular and medical chance meeting of the respondents with the deceased. In respondents assaulted in what manner and also considering and half years of custody in the entirety their conviction may be altered to one under Section 304 Part II IPC sentencing 9. We have considered the submissions on behalf of the that PW­2 who was accompanying the deceased on the the truth. PW­2 deposed that the respondents stopped them pipe. Thereafter all the respondents started assaulting the deceased with iron pipes sticks and iron rods. Thereafter the 11. The respondents were not strangers but well known to 12. There is evidence about the availability of light near the place of occurrence. Even otherwise that there may not have between known persons is acknowledged to be possible by voice silhouette shadow and gait also. Therefore we do not identification was not possible in the night to give them the 13. In Nathuni Yadav vs State of Bihar 9 SCC 238 “9…. Even assuming that there was no moonlight bility to correctly identify the assailants. Over and inmates of the tragedy­bound house the eyewit­ of each one of the killers. We are therefore not per­ assailants had enough light to identify the victims whom they targeted without any mistake from light then available though meagre was enough for tainly have pointedly focussed their eyes on the 14. PW­10 was an independent witness. Neither has his presence been doubted nor his impartiality been suspected beating the person who was driving the motorcycle while the 15. PW­1 the Doctor who conducted the post­mortem found vii) One stitched wound one centimeter below the injury No. 5 its size was 8 cm x .25 cm it was stitched ix) One cut wound 2 cm below the right lip going towards backside of ear its size was 2.5 cm it was going towards backside its size was 3.5 cm x .25 cm and lower 2 3 level its size was 2 cm x 1.5 cm deep upto muscles both the edges were T square and its size was 2.5 cm x 1 cm deep up to muscles both the edges were T­square and wound margin was going upwards its length was 10 cm and was deep xvi) One cut wound found in the middle of right forearm which was oblique and upward on the anterior aspect its size was 6.6 cm it was deep upto palmer aspect i.e. on palm its size was 3.5cm it was He deposed that the iron rod used for assault shown to him 16. The recovery of the weapons of assault from the place of the seizure memo. Cumulatively in view of the nature of 17. Ocular evidence is considered the best evidence unless the medical evidence makes the ocular testimony improbable 18. The aforesaid discussion leads us to the conclusion that the evidence and the overlooking of relevant evidence thereby are possible or the credibility of the witnesses is in doubt conclusion of the High Court is therefore held to be perverse and irrational. The acquittal is therefore held to be unsustainable and is set aside. In the nature of the assault Section 304 Part II IPC has no application. The conviction of 19. The respondent nos. 1 to 3 are directed to surrender within two weeks to serve out the remaining period of their take all necessary steps to apprehend the absconding fourth

The Court cannot sit as an Appellate Authority and scrutinize as to whom the tender should be given- Madras High Court

They had every right to participate in the auction. None of the members of the Association participated in the auction. They cannot question the procedure adopted. These were stated by the bench of Honourable Justice C. V. Karthikeyan in the case of P. Subbiah @ Subbian vs. The District Collector & Ors. (W.P.(MD)No.20324 of 2021). The crux of the case is the Petitioner, P. Subbiah, President of Pappaianpatti Kanmoi Water Users Association filed affidavit claimed that the Kanmoi is meant for irrigation and about 350 acres of land depend on the water from the Kanmoi, benefitting about 7500 families. It was further claimed that leaseholders of fishing rights cause damage to the tank bund to release water from the tank, to enable them to catch the fish. This affected irrigation. It was stated that the Public Works Department laid a condition that the lessees should not damage the bund of the Kanmoi or release the water, prior to bringing fishing rights to auction. It was further stated that the petitioner came to know that the respondents intended to auction the fishing rights however, the seventh respondent claimed that he had obtained fishery rights. The petitioner then came to know that the respondents had issued a tender notification dated 09.09.2021. It was stated that the entire proceedings stand vitiated owing to lack of transparency and failure to follow due process of law. It was further stated that four persons participated in the auction and finally, the seventh respondent herein, P. Nagamuthu was declared the highest bidder for Rs.48,900/-. It was stated that Clause 14 of the tender stipulated that the lessee should not damage the tank bund or close the inflow of water into the tank. The water, meant for irrigation should not be let out. It had been stipulated that violation would entail cancellation of the lease and forfeiture of deposit. The bench of Honourable Justice C. V. Karthikeyan while referring to the case of Nagar Nigam Meerut v. AL Faheem Meat Exports (P) Ltd. ((2006) 13 SCC 382) and Uflex Ltd. Vs Government of Tamil Nadu and others (2021 SCC Online SC 738) stated that “It is thus seen that the right to auction fishing rights was the correct step undertaken by the respondents. The petitioner should have participated in the auction. Conditions protecting the interest of the members of the petitioner Association have been imposed by the respondents. The Court cannot sit as an Appellate Authority and scrutinize as to whom the tender should be given. The Writ Petitioner having failed to participate in the auction cannot call upon the Court to enter into a roving enquiry on the entire issue. I am confident that the respondents would ensure that the stipulations in the notifications are not violated by the seventh respondent.” Click here to read the judgement

W.P.(MD)No.203221BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTRESERVED ON : 20.12.2021PRONOUNCED ON : 12.01.2022CORAM THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYANW.P.(MD)No.203221andW.M.P.(MD)Nos.16977 and 169721P.Subbiah @ SubbianPresident Pappaaianpatti Kanmoi Water Users Association Theni District.... Petitionervs.1.The District Collector Theni District Theni.2.The Executive Engineer PWD WRO Manjalar Basin Division Periyakulam Theni District.3.The Assistant Executive Engineer PWD WRO Manajalar Basin Division Periyakulam Theni District.4.The Assistant Engineer PWD WRO Irrigation Section Periyakulam Theni District.1 13 https: www.mhc.tn.gov.in judis W.P.(MD)No.2032215.The Assistant Director of Fisheries Theni District at Vaigamdam Theni District.6.The Tahsildar Periyakulam Taluk Theni District.7.P.Nagamuthu... RespondentsPRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus to call for the records relating to the impugned proceedings of the second respondent in K.No.Ko.20 Vu.Po2021 dated 24.09.2021 and quash the same and consequently to forebear the respondent 1 to 4 herein from in any manner conducting tender cum public auction for lease of fishing rights in Pappianpattikulam Kanmoi Periyakulam Taluk Theni District. For Petitioner:Mr.K.AppaduraiFor R1 to R6:Mr.J.John RajaduraiGovernment Advocate For R7:Mr.R.Karunanidhi O R D E RWrit Petition filed in the nature of Certiorarified Mandamus calling in question the impugned proceedings of the 2nd respondent dated 24.09.2021 and interfere with the same and consequently forbear the respondents from conducting lease cum public auction for lease of 2 13 https: www.mhc.tn.gov.in judis W.P.(MD)No.203221fishing rights in Pappianpattikulam Kanmoi in Periyakulam Taluk Theni District.2.The Writ Petitioner P. Subbiah @ Subbian President of Pappaianpatti Kanmoi Water Users Association in the affidavit filed in support of the Writ Petition claimed that the Kanmoi is meant for irrigation and about 350 acres of land depend on the water from the Kanmoi benefitting about 7500 families. It was further claimed that leaseholders of fishing rights cause damage to the tank bund to release water from the tank to enable them to catch the fish. This affected irrigation. It was stated that the Public Works Department laid a condition that the lessees should not damage the bund of the Kanmoi or release the water prior to bringing fishing rights to auction.3.It was further stated that the petitioner came to know that the respondents intended to auction the fishing rights and the petitioner had given a representation on 04.10.2021 protesting at such attempt. However the seventh respondent claimed that he had obtained fishery rights and produced a letter dated 24.09.2021. The petitioner then came 3 13 https: www.mhc.tn.gov.in judis W.P.(MD)No.203221to know that the respondents had issued a tender notification dated 09.09.2021. It was stated that the entire proceedings stand vitiated owing to lack of transparency and failure to follow due process of law. It was claimed that the Writ Petition should be allowed and the reliefs sought be granted.4.A Counter Affidavit was filed by the third respondent Assistant Executive Engineer PWD WRO Manjalar Basin Division Periyakulam on behalf of the respondents wherein it was stated that the fourth respondent had issued a tender notification on 06.08.2021 inviting tenders for public auction of lease for fishing rights in Pappaiyampattikulam Kanmoi at Thenkarai Village in Periyakulam for the period 31.08.2021 to 30.08.2022. A deposit of Rs.30 000 by demand draft was made a condition. The date of auction was fixed as 27.08.2021. It was claimed that tender notice was fixed on the Village notice board and the public were also informed. The date was then postponed and re fixed to 24.09.2021. The lease period was from 01.10.2021 to 30.09.2022.4 13 https: www.mhc.tn.gov.in judis W.P.(MD)No.2032215.It was further stated that four persons participated in the auction and finally the seventh respondent herein P. Nagamuthu was declared the highest bidder for Rs.48 900 . It was stated that Clause 14 of the tender stipulated that the lessee should not damage the tank bund or close the inflow of water into the tank. The water meant for irrigation should not be let out. It had been stipulated that violation would entail cancellation of the lease and forfeiture of deposit. It was specifically stated that the Kanmoi was vested with the Public Works Department.6.It was specifically further stated that the petitioner being a resident of the Village was well aware of the tender proceedings. It was urged that the Writ Petition should be dismissed.7.Heard arguments advanced by Mr. K. Appadurai learned Counsel for the petitioner and J. John Rajadurai learned Government Advocate for first to sixth respondents and Mr. R. Karunnidhi learned Counsel for the seventh respondent.5 13 https: www.mhc.tn.gov.in judis W.P.(MD)No.2032218.It is the contention of Mr. K. Appadurai that the Kanmoi is a vast area and grant of fishing rights for a meager sum itself shows that the auction had not been conducted with bonafide intentions. Learned Counsel expressed fear that the seventh respondent would damage the tank bund drain the water of the Kanmoi to catch the fish. He further claimed that the notification has to be interfered with since proper publicity had not been given prior to the auction. Learned Counsel also pointed that the seventh respondent’s signatures in the various documents evidently differ and stated that the entire process was a sham. He urged that the Writ Petition should be allowed. 9.Mr.J.John Rajadurai learned Government Advocate who appeqared for the first to sixth respondents however contended that the auction was conducted following due process. Notices were affixed in all prominent and public places. Moreover the petitioner being a local resident cannot feign ignorance of the same. Learned Government Advocate further stated that the seventh respondent had bid the highest 6 13 https: www.mhc.tn.gov.in judis W.P.(MD)No.203221amount and had been granted the rights. He further pointed out the clauses stipulated on the lessee and stated that the apprehension that the tank bund would be damaged is only imaginary. The respondents have a right to cancel the rights if there is violation of this clause. He reiterated that the Writ Petition should be dismissed. 10.Mr.R.Karunanidhi leanred Counsel for the seventh respondent contended that the seventh respondent had participated in the auction satisfied the pre condition to deposit Rs. 30 000 by demand draft and then quoted the highest bid. He was declared to the successful bidder. There was no violation of any procedure. He stated that the Writ Petition has to be dismissed as not maintainable as the seventh respondent has been granted the rights in manner known to law and there has been no violation of any of the conditions of the lease.11.I have carefully considered the arguments advanced and perused the records.7 13 https: www.mhc.tn.gov.in judis W.P.(MD)No.20322112.The petitioner had filed the Writ Petition in his status of President of Pappianpatti Kanmoi Water Users Association at Periyakulam in Theni District. Pappaiyampattikulam Kanmoi is situated in Thenkarai Village Periyakulam. It is vested with the Public Works Department. The issue surrounds grant of fishing rights. The main grievance of the petitioner is that any lessee who is granted such fishing rights to exploit the available fish often damage the Kanmoi tank bunds let the water flow and then catch the fish which otherwise would be deep in the water. This damage to tank bund and flow of water affects the agricultural fields. It is stated that the Kanmoi is the water source for about 350 acres of land and about 7500 families are also dependent on it. 13.If that be the primary grievance then the petitioner should have been vigilant and should have prevented the rights be auctioned. However the Writ had been filed after the auction had been conducted.14.It is also pertinent to point out the conditions stipulated in the auction notification which made it clear that the successful bidder should 8 13 https: www.mhc.tn.gov.in judis W.P.(MD)No.203221not damage the tank bund and let out the water from the Kanmoi. The respondents have retained the power to cancel the lease if this is done.15.The petitioner had then questioned the auction procedure itself. That may be out of scope of Writ Petition. The petitioner had not participated in the auction. It is inconceivable that the petitioner and none of the other members of the Association were not aware of the notifications issued by the respondents. The first date of auction was cancelled and a new date was then fixed. It had been clearly stated that the notification was affixed in all prominent places. However neither the petitioner nor any of the members of the Association can claim ignorance of the notification. They are all residents of the same area. They did not want the fishing rights to be auctioned. Then they would have taken every care to see that a notification is not issued and if issued take steps to question the same immediately. They had every right to participate in the auction. None of the members of the Association participated in the auction. They cannot question the procedure adopted. The issues of differing signatures and alleged low auction amount are aspects beyond judicial review and this Court cannot sit as an appellate authority over the respondents. 9 13 https: www.mhc.tn.gov.in judis W.P.(MD)No.20322116.In Nagar Nigam Meerut v. AL Faheem Meat ExportsLtd. reported in13 SCC 382 it had been laid down as follows:“All contracts by the Government or by an instrumentality of the State should be granted only by public auction or by inviting tenders after advertising the same in well known newspapers having wide circulation so that all eligible persons will have an opportunity to bid in the auction and there is total transparency…”17.In Uflex Ltd. Vs Government of Tamil Nadu and others reported in 2021 SCC OnLine SC 738 the Hon’ble Supreme Court held as follows :“42. We must begin by noticing that we are examining the case as already stated above on the parameters discussed at the inception. In commercial tender matters there is obviously an aspect of commercial competitiveness. For every succeeding party who gets a tender there may be a couple or more parties who are not awarded the tender as there can be only one L 1. The question is should the judicial process be resorted to for downplaying the freedom which a tendering party has merely because it is a State or a public authority making the said process even more cumbersome…. The objective is not to make the Court an appellate authority for scrutinizing as to whom the tender should be awarded. Economics must be permitted to play its role for which the tendering authority knows best as to what is suited in terms of technology and price for them.”10 13 https: www.mhc.tn.gov.in judis W.P.(MD)No.20322118.It is thus seen that the right to auction fishing rights was the correct step undertaken by the respondents. The petitioner should have participated in the auction. Conditions protecting the interest of the members of the petitioner Association have been imposed by the respondents. The Court cannot sit as an Appellate Authority and scrutinize as to whom the tender should be given. 19.The Writ Petitioner having failed to participate in the auction cannot call upon the Court to enter into a roving enquiry on the entire issue. I am confident that the respondents would ensure that the stipulations in the notifications are not violated by the seventh respondent.20.Writ Petition is dismissed. No order as to costs. Consequently connected Miscellaneous Petition is dismissed Index :Yes No 12.01.2022Internet:Yescmr11 13 https: www.mhc.tn.gov.in judis W.P.(MD)No.203221To1.The District Collector Theni District Theni.2.The Executive Engineer PWD WRO Manjalar Basin Division Periyakulam Theni District.3.The Assistant Executive Engineer PWD WRO Manajalar Basin Division Periyakulam Theni District.4.The Assistant Engineer PWD WRO Irrigation Section Periyakulam Theni District.5.The Assistant Director of Fisheries Theni District at Vaigamdam Theni District.6.The Tahsildar Periyakulam Taluk Theni District.12 13 https: www.mhc.tn.gov.in judis W.P.(MD)No.203221C.V.KARTHIKEYAN J. cmrOrder made inW.P.(MD)No.20322112.01.202213 13

A magistrate can before taking cognizance of an offense under section 190(1)(a), direct Police investigation under section 156(3): Delhi High Court

The issue was with respect to taking cognizance of an offense by the Magistrate when FIR is not registered by the police. This was clarified in the case of SH. Narendra Babu Gautam v. The State and Another, decided on December 6th, 2021 by Hon’ble Mr. Justice Manoj Kumar Ohri. The facts of the case are that the marriage between the petitioner and respondent No. 2 was solemnized on 01.05.1995. On account of matrimonial discord, respondent No. 2 left the matrimonial home on 22.02.2008 and started residing at her parental house. A dispute arose between the parties pertaining to property bearing No. Flat No.C-5, Gaurav Apartments, New Delhi is stated to be owned by the petitioner, along with his two brothers. One room of the said property was let out by the petitioner to one Ms. Parvati Nagle at monthly rent. Later, a complaint came to be filed by the petitioner at Police Station Madhu Vihar, Delhi, that the petitioner’s wife was trying to get the said property vacated by criminal means, in furtherance of which, two persons had come to the said property on 03.04.2015 in the petitioner’s absence and broken the main lock as well as the locks of the rooms. It was further alleged that the said persons had also broken the lock of the tenant’s room and committed theft of certain valuable items of the petitioner and his tenant. When the police did not take any action on his complaint, the petitioner filed a Criminal Complaint under Section 156(3) Cr.P.C. read with Section 200 Cr.P.C. In the ATR, it was stated that during enquiry, respondent No. 2 claimed to be in continuous possession of the said property, along with the petitioner. She also claimed to have keys of the said property. After considering the material placed on record as well as the ATR submitted on behalf of the State, the learned Metropolitan Magistrate came to the conclusion that custodial interrogation of respondent No. 2 was not required, as the entire evidence was within the control of the petitioner. Hence dismissed the complaint. The counsel for petitioner contends that police investigation is required in the present case and the Courts below have erroneously dismissed the petitioner’s complaint. It is contended that on the day of the incident, respondent No. 2 had illegally tried to take forcible possession of the said property in absence of the petitioner by resorting to criminal means. In this regard, learned counsel has placed reliance on certain photographs as well as on the entry gate register of the concerned society and further submitted that the same show that respondent No. 2, alongwith Vikas and Dharam Singh had committed the alleged offence. The Counsel for the State, on the other hand, has supported the impugned orders. It was submitted that the Courts below have rightly arrived at a consistent conclusion that the entire evidence being in possession of the petitioner, no investigation by the police is required in the present case. After considering the arguments of both the parties, The court before giving its opinion had reiterated the Supreme Court judgements in the case of H.S. Bains, Director, Small Saving-Cum Deputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh) & Vasanti Dubey v. State of Madhya Pradesh, where it was decided that, “When a Magistrate receives a complaint, he may, instead of taking cognizance at once under Section 190(1)(a) direct a police investigation under Section 156(3); However, after completion of the investigation, the police sends an adverse report under Section 173(1), the Magistrate may take necessary steps”. In the present case, the the petitioner had sought to bring on record a pen drive containing CCTV footage of the incident and alleged that four persons in total, i.e., respondent No. 2, her daughter and two persons, namely Vikas and Dharam Singh, had committed the offence. Further, for establishing the identity of the aforesaid two persons, the petitioner himself has placed reliance on the entry gate register of the concerned society, wherein the names as well as mobile numbers of the said persons are mentioned. Noticing the same, the learned Metropolitan Magistrate had concluded that neither custodial interrogation nor police investigation was required in the present case, more so, as the entire evidence was in possession of the petitioner. In revision, the Sessions Court also reached the same conclusion and upheld the order of the learned Magistrate. In view of the foregoing analysis and the exposition of law cited hereinabove, this Court is also of the view that the learned Magistrate rightly dismissed the petitioner’s complaint. Hence the petition was dismissed.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision : 06.12.2021 CRL.M.C. 3147 2021 CRL.M.A. 19489 2021 & CRL.M.A. IN THE MATTER OF: SH. NARENDRA BABU GAUTAM ..... Petitioner Through: Mr. Harish Chand Sharma Advocate. THE STATE & ANR. ..... Respondents Through: Ms. Neelam Sharma APP for State. HON BLE MR. JUSTICE MANOJ KUMAR OHRI MANOJ KUMAR OHRI J.The present petition has been filed under Section 482 Cr.P.C. on behalf of the petitioner complainant assailing the order dated 18.01.2020 passed by the learned Metropolitan Magistrate Shahdara Karkardooma Courts Delhi in CC No. 1866 16 whereby the petitioner’s application filed under Section 156(3) Cr.P.C. was dismissed as well as the order dated 11.10.2021 passed by the learned Addl. Sessions Judge 04 Shahdara Karkardooma Courts Delhi in CR No. 34 2020 whereby the revision petition filed by the petitioner was dismissed and order dated 18.01.2020 upheld. The petitioner also seeks a direction to the learned Magistrate to send the complaint case to the concerned SHO IO for registration of appropriate FIR besides a stay of CRL.M.C. 3147 2021 the proceedings pending before the learned Magistrate in the aforesaid complaint case. Vide order dated 18.01.2020 the learned Metropolitan Magistrate while dismissing the application of the petitioner filed under Section 156(3) Cr.P.C. had taken cognizance of the offence under Section 190(1)(a) Cr.P.C. and listed the matter for pre summoning evidence. Brief facts as borne out from the material placed on record are that the marriage between the petitioner and respondent No. 2 was solemnized on 01.05.1995. On account of matrimonial discord respondent No. 2 left the matrimonial home on 22.02.2008 and started residing at her parental house. A dispute arose between the parties pertaining to property bearing No. Flat No.C 5 Gaurav Apartments Plot No. 1 I.P. Extension Patparganj New Delhi hereinafter referred to as ‘the said property’) which is stated to be owned by the present petitioner along with his two brothers namely Raj Bahadur Dohare and Ram Naresh Dohare. One room of the said property was let out by the petitioner to one Ms. Parvati Nagle at monthly rent of Rs.4 500 for the period commencing from 04.02.2015 to 04.12.2015. On 04.04.2015 a complaint came to be filed by the petitioner at Police Station Madhu Vihar Delhi which was registered vide DD No. 4B dated 04.04.2015. In the complaint it was alleged that the petitioner’s wife was trying to get the said property vacated by criminal means in furtherance of which two persons had come to the said property on 03.04.2015 in the petitioner’s absence and broken the main lock as well as the locks of the rooms with an intention to take forcible possession of the said property. It was further alleged that the said persons had also broken the lock of the tenant’s room and committed theft of certain valuable items CRL.M.C. 3147 2021 of the petitioner and his tenant. When the police did not take any action on his complaint the petitioner filed a Criminal Complaint under Section 156(3) Cr.P.C. read with Section 200 Cr.P.C. seeking direction for registration of the FIR under Sections 380 406 452 506 IPC on the allegation that respondent No. 2 and other accused persons had taken forcible possession of the said property in his absence. On notice being issued an Action Taken Report was requisitioned. In the ATR it was stated that during enquiry respondent No. 2 claimed to be in continuous possession of the said property alongwith the petitioner. She also claimed to have keys of the said property. After considering the material placed on record as well as the ATR submitted on behalf of the State the learned Metropolitan Magistrate came to the conclusion that custodial interrogation of respondent No. 2 was not required as the entire evidence was within the control of the petitioner. Since no investigation on the part of the police was required the petitioner s application under Section 156(3) Cr.P.C. was dismissed. However the petitioner was permitted to lead pre summoning evidence. On the petitioner s challenge of the aforesaid order the learned Addl. Sessions Judge concurred with the view taken by the learned Magistrate and upheld the Learned counsel for the petitioner submits that police investigation is required in the present case and the Courts below have erroneously dismissed the petitioner’s complaint. It is contended that on the day of the incident respondent No. 2 had illegally tried to take forcible possession of the said property in absence of the petitioner by resorting to criminal means. In this regard learned counsel has placed reliance on certain photographs as CRL.M.C. 3147 2021 well as on the entry gate register of the concerned society and further submitted that the same show that respondent No. 2 alongwith Vikas and Dharam Singhhad committed the alleged offence. Learned APP for the State on the other hand has supported the impugned orders. It is submitted that the Courts below have rightly arrived at a consistent conclusion that the entire evidence being in possession of the petitioner no investigation by the police is required in the present case. I have heard learned counsels for the parties and perused the entire material placed on record. Before proceeding to analyze the submissions made I deem it expedient to recapitulate the position of law on the issue arising in the present case which has been expounded by the Supreme Court in H.S. Bains Director Small Saving Cum Deputy Secretary Finance Punjab Chandigarh v. State reported as 4 SCC 631 and CREF Finance Ltd. v. Shree Shanthi HomesLtd. and Another reported as 2005) 7 SCC 467. In H.S. Bainsthe Supreme Court had held: 6. It is seen from the provisions to which we have referred in the preceding paras that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200. Thereafter if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204. However if he thinks fit he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit for the CRL.M.C. 3147 2021 purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand in the first instance on receipt of a complaint the Magistrate may instead of taking cognizance of the offence order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(1). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straight away issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report may without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200 of the Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200 203 and 204. Thus a Magistrate who on receipt of a complaint orders an investigation under Section 156(3) and receives a police report under Section 173(1) may thereafter do one of three things:he may decide that there is no sufficient ground for proceeding further and drop action he may take cognizance of the offence under Section 190on the basis of the police report and issue process this he may do without being bound in any manner by the conclusion arrived at by the police in their report he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process as the case may be." CRL.M.C. 3147 2021 9. While citing with approval the decision in H.S. Bainsthe Supreme Court in Vasanti Dubey v. State of Madhya Pradesh reported as2 SCC 731 had also expounded on the issue under consideration as follows: “20. … ‘1. When a Magistrate receives a complaint he may instead of taking cognizance at once under Section 190(1)(a) direct a police investigation under Section 156(3) ante 2. Where after completion of the investigation the police sends an adverse report under Section 173(1) the Magistrate may take any of the following steps: If he agrees with police report and finds that there is no sufficient ground for proceeding further he may drop the proceeding and dismiss the complaint. ii) He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint under Section 190(1)(a) and proceed to examine the complainant under Section 200. iii) Even if he disagrees with the police report he may either take cognizance at once upon the complaint direct an enquiry under Section 202 and after such enquiry take action under Section 203. However when the police submits a final report or closure report in regard to a case which has been lodged by the informant or complainant the Magistrate cannot direct the police to straightway submit the charge sheet as was the view expressed in Abhinandan Jha which was relied upon in Ram Naresh Prasad.” In Madhao and Another v. State of Maharashtra and Another reported as 2013) 5 SCC 615 it was further held as under: “18. When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a CRL.M.C. 3147 2021 matter which was primarily the duty of the police to investigate he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier in the case of a complaint regarding the commission of cognizable offence the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV he is not competent to revert back to the pre cognizance stage and avail of Section 156(3).” 11. Adverting to the facts of the present case it is noted that at the time of the incident there existed matrimonial discord as well as a prior dispute with respect to possession of the said property between the petitioner and respondent No. 2. Both the parties have claimed ownership of the said property and as per the aforementioned ATR both the petitioner as well as respondent No. 2 were in possession of keys thereof. It is worthwhile to note that by way of an application filed on 20.05.2017 the petitioner had sought to bring on record a pen drive containing CCTV footage of the incident and alleged that four persons in total i.e. respondent No. 2 her daughter and two persons namely Vikas and Dharam Singh had committed the offence. 13. During arguments learned counsel for the petitioner has submitted that the identity of the two persons assailants who had accompanied respondent No.2 and her daughter on 03.04.2015 needs to be ascertained and police investigation is required for the same. However as noted above in the application dated 20.05.2017 filed by the petitioner himself the names of the two persons assailants were mentioned as Vikas and Dharam Singh. Further for establishing the identity of the aforesaid two persons the petitioner himself has placed reliance on the entry gate register of the CRL.M.C. 3147 2021 concerned society wherein the names as well as mobile numbers of the said persons are mentioned. Noticing the same the learned Metropolitan Magistrate had concluded that neither custodial interrogation nor police investigation was required in the present case more so as the entire evidence was in possession of the petitioner. In revision the Sessions Court also reached the same conclusion and upheld the order of the learned In view of the foregoing analysis and the exposition of law cited hereinabove this Court is also of the view that the learned Magistrate rightly dismissed the petitioner s complaint took cognizance under Section 190(1)(a) Cr.P.C. and proceeded to examine the petitioner under Section 200 Cr.P.C. by listing the matter for pre summoning evidence. There is no gainsaying that if any enquiry is required at a later stage the concerned Court will be empowered to hold the same under Section 202 Cr.P.C. 15. Accordingly as no illegality or perversity in the impugned orders is discernible the same are upheld. The present petition being devoid of any merits is dismissed. Miscellaneous applications are disposed of as MANOJ KUMAR OHRI) JUDGE DECEMBER 06 2021 CRL.M.C. 3147 2021

While considering an application under Section 7 of the IBC, only the financial debt being defaulted should be the criteria: NCLT, New Delhi

When deciding whether an application under  section 7 of the insolvency and bankruptcy code must be allowed, reliance must be placed only and only on the financial debt being defaulted and not the reason behind the default or the factors that led to the default. This was held by the tribunal bench comprising of Hon’ble Member Deepti Mukesh and Hon’ble Member Sumita Purkayastha in the matter of Mr. Suraj Kumar Kaushal & ORS. Vs. M/S Sarvottam Realcon Pvt. Ltd. [Company Petition No. IB 901/ND/2020] in the National Company Law Tribunal, New Delhi (Court No. IV) on the 09th of July 2021. The brief facts of the matter are, the Applicants, collectively are home buyers and allottees of 2/3/4 BHK apartments in the project named as “Sarvottam Shree” and are financial creditors within the meaning of explanation to Section 5(8)(f) of the IBC. The corporate debtor is a company involved in the business of construction and development of real estate projects. he applicants state that from 2013 onwards, they started booking flats in the project of corporate debtor and accordingly allotment letters were issued on payment of initial amount, the applicants opted for construction linked plan. It is further stated that the amount paid by the applicants along with accumulated interest thereon constitutes “Debt” within the meaning of Section 2(11) of IBC. Further as per clause 6, of the allotment letter issued by the corporate debtor, it is stated that the title of the apartment shall be transferred after completion of construction, by way of sale deed. The said clause imply that the payments made and interest thereon till sale deed is executed is a debt on the corporate Debtor. The applicants submit that as per clause 42 of the allotment letter, the corporate debtor undertook to build, handover and sell apartments/flat with car garages within a stipulated period. Further states that the possession of the flat was promised within by the year 2017 and payment were being made by the applicants up to the year 2019. The corporate debtor in violation of the said clause, failed to deliver flat and also refused to refund the money with interest. The applicants further state that they approached the corporate debtor time and again for refund of the deposited amount with interest but the same was not paid off despite promises. The present application is filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 with a prayer to trigger Corporate Insolvency Resolution Process against the corporate debtor. The corporate debtor submitted that, That no amount remains due and payable to the applicants, as per the allotment letter and that the applicants are not the creditors of the corporate debtor. The corporate debtor states that he is financially sound and solvent, hence CIRP should not be allowed. He also submitted that the applicants have defaulted in payment of various demand raised by the corporate debtor, but stated that the applicant failed to adhere the demands and defaulted in payments of instalments qua the purchase of the said flats. The applicant submitted that, the corporate debtor has not disputed that the 43 applicants have paid a sum of Rs.19,12,52,673/-, i.e. approximately, more than 45 Lakh per person and which is higher than the actual cost of construction. The applicants state that there is possibility that the funds of applicants have been used for construction of flats of ALT society. That if there is non-payment of certain instalments, as per the timelines has been caused due to the conduct of the corporate debtor.  The applicants state that payments were linked to the stage and progress of construction, hence payments have been made accordingly and even after that a substantial amount has been paid by each applicant. The bench heard the submissions of both the parties. Relying on the judgement in  Innoventive Industries Ltd. vs. ICICI Bank & Another (AIR 20l7 SC 4084), wherein the court held that, “as we have seen, in the case of a corporate debtor who commits a default of financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the Financial Creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is “due” i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date.“

P a g e | 1 IN THE NATIONAL COMPANY LAW TRIBUNAL NEW DELHICompany Petition No. IB 901 ND 2020 Under Section 7 of the Insolvency and Bankruptcy Code 2016 Read with Rule 6 of the Insolvency and BankruptcyRules 2016] IN THE MATTER OF: MR. SURAJ KUMAR KAUSHAL & ORS. …APPLICANTS FINANCIAL CREDITORS M S SARVOTTAM REALCON PVT. LTD. …RESPONDENT CORPORATE DEBTOR ORDER PRONOUNCED ON: 09.07.2021 CORAM: DR. DEEPTI MUKESH HON’BLE MEMBERMS. SUMITA PURKAYASTHA HON BLE MEMBERIB 9012020 Suraj Kumar Kaushal & Ors. Vs. Sarvottam Realcon Pvt. Ltd. P a g e | 2 MEMO OF PARTIES 1) Mr. Suraj Kumar Kaushal S O Mr. Yogesh Kaushal & Ms. Smita Patil W O Suraj Kumar Kaushal Both Resident of Plot No. 680 Flat No. 101 Shakti Khand III Indirapuram Ghaziabad UP 201014. 2) Mr. Rajveer Vashishtha S O Mr. Raj Kumar Sharma & Ms. Pinky Devi W O Mr. Rajveer Vashishtha Both Resident Of D 503 The Metropolitan Near Girls School PCMC Link Road Chinchwad Gaon 3) Mr. Devendra Kumar Gupta S O Mr. Narendra Kumar Gupta Resident of Khand 1 GH 4 Oc 10 503 Indirapuram Ghaziabad Uttar Pradesh Pin 201014. County 4) Mr. Rajender Kumar Jain S O Mr. S.C. Jain & Ms. Sarita Jain W O Mr. Rajender K Jain Both Resident Of 295 6 Shivalik Enclave Race Course Dehradun. 5) Mr. Laxmi Narayan S O Shri Gauri Shankar & Ms. Kavita Varshney W O Mr. Laxmi Narayan Both Resident Of 312 Super Tech Avant Grade Sector 5 Vaishali Ghaziabad. 6) Ms. Archana Nehru W o Mr. Vivek V Mishra & Vivek V Mishra S o Mr. Y. K. Mishra Both Resident Of C 2 604 Olive County Sector 5 Vasundhara 7) Mr. Tanuj Nayyar S o Mr. Suman Kumar Nayyar & Ms. Priyanka Gaur Nayyar W O Mr. Tanuj Nayyar Both Resident of 1 5466 A Balbir Nagar Extension Street No. 16 Shahadra New Delhi. 8) Mr. Adesh Kumar S o Bala Prasad Gupta & Mr. Sachin Kumar Gupta S o of 661 GF Niti Khand 1 Adesh Kumar Both Resident Indirapuram Ghaziabad Uttar Pradesh Pin 201014. 9) Mr. Abhishek Ranjan S O Akhilesh Prasad Singh & Ms. Smita Sharma W o Mr. Abhishek Ranjan Both Resident of Flat No 456 Duplex Society Sector 12 Vasundhara Ghaziabad 201014. IB 9012020 Suraj Kumar Kaushal & Ors. Vs. Sarvottam Realcon Pvt. Ltd. P a g e | 3 10) Mr. Dhiraj Sharma S o Mr. Siddhan Sharma & Ms. Kumari Radha Rani W o Mr. Dhiraj Sharma Both Residents of Apex Acacia Valley A 1302 Vaishali Sec 3 Ghaziabad Uttar Pradesh 201010. 11) Mr. Manmeet Singh S o Mr. Dilip Singh & Ms. Tumpa Kaur Bari D O Mr. Malabedi Bari Both Resident of G 1808 Pbel City Behind Shadan Medical College Bandlaguda Hyderabad 50009. 12) Mr. Deepak Gole S o Mr. Ramesh Chandra Gole & Ms. Hema Gole W O Mr. Deepak Gole Both Resident Of 388 GF Shakti Khand I Indirapuram Ghaziabad Uttar Pradesh Pin 201014. 13) Ms. Neeraj Kumari W o Mr. Arun Kumar Yadav & Mr. Arun Kumar Yadav S o Mr. Rajveer Singh Both Resident of Flat No. Tf 1 4Th Floor Plot No. 899 Sector 5 Vaishali Ghaziabad Uttar Pradesh Pin 201010. 14) Mr. Mukesh Dandriyal S o Mr. Ghananand Resident of li B 161 Second Floor Vaishali Ghaziabad Uttar Pradesh 200014. 15) Mr. Sachin Rastogi S O Mr. Gyan Chand Rastogi & Ms. Navita Rohatgi W O Mr. Sachin Rastogi Both Resident of Flat No 22 GH 8 MDC Sector 5 Panchkula Haryana. 16) Mr. Pankaj Arora S O Mr. Mohan Arora & Ms. Asha Arora W O Mr. Pankaj Arora Both Resident of B 163 Ramprastha Colony Ghaziabad Uttar Pradesh. 17) Mr. Anmol Garg S O Krishan Gopal Garg & Ms. Garima Gupta D O Sushil Kumar Gupta Both Resident of 55 East Rajputana Roorkee 247667. 18) Ms. Sunita Gupta W O Mr. Om Shanker Gupta & Mr. Om Shanker Gupta S o Mr. Badri Prasad Gupta Both Resident Of 163 Gadivan Karhal Road Mainpuri Uttar Pradesh 205001. 19) Mr. Rakesh Raj S o Madan Kishore Bakshi & Ms. Smita Raj W O Mr. Rakesh Raj Both Resident of 306 3rd Floor Sunshine Shalimar Apt Chitrakoot Vaishali Nagar Jaipur 302021. IB 9012020 Suraj Kumar Kaushal & Ors. Vs. Sarvottam Realcon Pvt. Ltd. P a g e | 4 20) Mr. Shivam Kumar Mishra S o Mr. V.K. Mishra Resident of 107 222 Nehru Nagar Kanpur Uttar Pradesh. 21) Mr. Vinod Kumar S o Ramveer Singh & Ms. Soni W o Mr. Vinod Kumar Both Resident of House No. 1 193 Sector 1 Vasundhara Ghaziabad 22) Ms. Anita Gupta W O Mukesh Gupta Resident of House No 24 Rajiv Nagar Ghiror Mainpuri Uttar Pradesh 205121. 23) Mr. Pramod Saxena S O Kishan Prashad Sexena & Ms. Geetika Srivastava W O Mr. Pramod Saxena Both Resident Of J 218 Patel Nagar Ist Near G.D.A. Ghaziabad Uttar Pradesh. 24) Mr. Sachin Mahajan S o Kishore Kumar Mahajan & Ms. Rajni Dawar W o Mr. Sachin Mahajan Both Resident of Flat No 1004 Gaur Ganga 2 Sec 4 Vaishali Ghaziabad Uttar Pradesh. 25) Mr. Satya Narayan Mishra S O Late Shri Chandrika Mishra & Ms. Nidhi Mishra W o Mr. Amar Nath Mishra Resident of C 69 Bel Officer s Colony Chander Nagar Ghaziabad201011. 26) Mr. Sanjiv Kumar Sabharwal S O Mr. Kewal Sabharwal Resident of Flat No A6 Raju Park Khanpur New Delhi 110019 and Mr. Anil Kumar Gupta s o Ram Swaroop Gupta r o H. No. 307 Block No. 13 Trilok Puri Delhi 110091. 27) Mr. Bansh Narayan Gupta S O Mr. Ram Swaroop Gupta & Mr. Nitin Gupta S O Mr. Bansh Narayan Gupta Both Resident of Plot No S1 02 DPS Road Indirapuram Ghaziabad Uttar Pradesh Pin 201014. 28) Mr. Sanjeev Gupta S O Mr. Shri Chand Gupta & Ms. Manju Gupta W O Mr. Sanjeev Gupta Both Resident of Dalganj Ghiror Mainpuri Uttar Pradesh 205121. 29) Mr. Rishi Sharma S O Mr. JK Sharma Resident of E 2406 Apex Golf Greater Noida West) Avenue Golf City One Sec. 1. Noida Ext. Uttar Pradesh 201009. IB 9012020 Suraj Kumar Kaushal & Ors. Vs. Sarvottam Realcon Pvt. Ltd. P a g e | 5 30) Mr. Raj Kumar Gupta S O Mr. Om Prakash Gupta & Ms. Suman Gupta W o Mr. Raj Kumar Gupta Both Resident of House No 569 Village Ghiror Tehsil Mainpuri Uttar Pradesh. 31) Ms. Hanslata Gupta W O Mr. D.K. Gupta & Mr. D.K. Gupta S O Mr. RN Gupta Both Resident Of A 703 Supertech Palm Green Hapur Bypass Delhi Road Meerut Uttar Pradesh.Pin 250002. 32) Mr. Shekhar Bhadauria S O Mr. Vijay Pratap Singh Bhaduria & Ms. Arti Bhaduria W o Mr. Shekhar Bhadauria Both Resident of 12 B Anukampa Apparent Abhay Khand 4 Indirapuram Ghaziabad Uttar Pradesh Pin 33) Mr. Anchit Jain S O Jinender Kumar Jain & Ms. Shruti Jain W O Mr. Anchit Jain Both Resident of 239 2 Mahesh Nagar Ambala Cantt Haryana 133001. 34) Mr. Manas Srivastava S o Mr. Satendra Kumar Resident of House No. 1205 Sector 5 Vasundhara Ghaziabad UP 201012. 35) Mr. Vipin Kumar S O Mr. Lator Singh Resident of C4 304 Yamuna Vihar Delhi 110053. 36) Mr. Shyam Gole S O Ramesh Chandra Gole & Ms. Swati Gole W O Mr. Shyam Gole Both Resident Of 388 Gf Shakti Khand I Indirapuram Ghaziabad Uttar Pradesh Pin 201014. 37) Ms. Deepika Gupta D O D.K. Gupta & Ms. Hanslata Gupta W O Mr. D.K. Gupta Both Resident Of A 703 Supertech Palm Green Hapur Bypass Delhi Road Meerut Uttar Pradesh.Pin 250002. 38) Mr. Rachit Jain S O Vijay Kumar Jain & Ms. Anju Jain W O Mr. Rachit Jain Both Resident Of E 100 Ashok Vihar Phase 1 New Delhi 110052. 39) Ms. Khyati Goyal W O Mr. Rachit Jain & Mr. Rachit Jain S O Vijay Kumar Jain Both Resident of E 100 Ashok Vihar Phase 1 Delhi 110052. 40) Ms. Shobha Jain W O Mr. Gian Chand Jain Resident of Gp 62 Maurya Enclave Pitampura North West New Delhi 110088. IB 9012020 Suraj Kumar Kaushal & Ors. Vs. Sarvottam Realcon Pvt. Ltd. P a g e | 6 41) Mrs. Sonali Seema W O Mr. Manoj Kumar Singh & Mr. Manoj Kumar Singh S O Kumar Shrinath Prasad Singh Both Resident Of C 4 1202 Olice County Sector 5 Vasundhara Ghaziabad Uttar Pradesh Pin 201012. 42) Mr. Jain Swarup Jain S O Shankar Lal Jain & Ms. Usha Jain W O Mr. Jain Swarup Jain Both Residents of B2 102 Olive County Sec 05 Vasundhra Ghaziabad Uttar Pradesh Pin 201012. 43) Mr. Megh Chandra Jain S JD Jain & Ms. Sarla Jain W o Mr. Megh Chandra Jain Both Residents of B2 102 Olive County Sec 05 Vasundhra Ghaziabad Uttar Pradesh Pin 201012. …APPLICANTS FINANCIAL CREDITORS M s SARVOTTAM REALCON PRIVATE LIMITED Having registered office at: A 115 office No.301 Old No.51 Third Floor Gali No.1 Vakil Chamber Shakarpur New Delhi 110092 FOR THE APPLICANT : Mr. K.C. Aggarwal Mr. V.N. Aggarwal Advs. FOR THE RESPONDENT : Mr. Gaurav Singh Adv. …RESPONDENT CORPORATE DEBTOR IB 9012020 Suraj Kumar Kaushal & Ors. Vs. Sarvottam Realcon Pvt. Ltd. P a g e | 7 Per Dr. Deepti Mukesh Member1. The present application is filed under Section 7 of the Insolvency and Bankruptcy Code 2016 read with rule 4 of the Insolvency and BankruptcyRules 2016 jointly by 43 home buyers in the project named as “Sarvottam Shree” of corporate debtor affidavits in support of this application have been filed by each applicant with a prayer to trigger Corporate Insolvency Resolution Process againstof the IBC. The applicants state that flats allotted to the applicants herein constitute 10% of the total allotted units i.e. 408 units constituting the requisite number to file the present application complying the Amendment dated 3. The corporate Debtor is private company limited by shares incorporated on 30.01.2012 under the provisions of Companies Act 1956 bearing CIN No. U45200DL2012PTC230708 having registered office at A 115 office no. 301 old no. 51 Third Floor Gali No.1 Vakil Chamber Shakarpur New Delhi an d East Delhi 110092 and corporate office at A 60C First Floor 63 201301 accounshree@sarvottamindia.com. The corporate debtor is a company involved in the business of construction and development of real estate projects. IB 9012020 Suraj Kumar Kaushal & Ors. Vs. Sarvottam Realcon Pvt. Ltd. P a g e | 8 4. The applicants state that each applicant vide separate allotment letters booked an apartment in a project located at Plot No. SL2 measuring 15845 Sq. Meters in the Indirapuram Development Scheme situated at Khasra No. 294 297 308 309 310 311 317 318 323 705 323 324 326 and 327 situated at Mahuddinpur Kanawani Tehsil District Ghaziabad. The plot has been purchased by A.L.T. Sehkari Awas Samiti Limited hereinafter referred to as ‘ALT society’) from Ghaziabad Development Authority. On 15.02.2013 an MOU was signed between ALT society and Sarvottam Realcon Private Limited being the corporate debtor in the present application to grant authority for developing the said land by construction on it. 5. The applicants state that from 2013 onwards they started booking flats in the project of corporate debtor and accordingly allotment letters were issued on payment of initial amount the applicants opted for construction linked plan. It is further stated that the amount paid by the applicants along with accumulated interest thereon constitutes “Debt” within the meaning of Section 2(11) of IBC. Further as per clause 6 of the allotment letter issued by the corporate debtor it is stated that the title of the apartment shall be transferred after completion of construction by way of sale deed. The said clause imply that the payments made and interest thereon till sale deed is executed is a debt on the corporate Debtor. 6. The applicants submit that as per clause 42 of the allotment letter the corporate debtor undertook to build handover and sell apartments flat with car garages within a stipulated period. Further states that the possession of the flat was promised within 42 months i.e. by the year 2017 and payment were being made by the applicants upto the year 2019. IB 9012020 Suraj Kumar Kaushal & Ors. Vs. Sarvottam Realcon Pvt. Ltd. P a g e | 9 The corporate debtor in violation of the said clause failed to deliver flat and also refused to refund the money with interest. The applicants further state that they approached the corporate debtor time and again for refund of the deposited amount with interest but the same was not paid off despite promises. 7. The applicants submit that out of the total 43 applicant few applicants have also obtained an order and recovery certificate from RERA Authority the total amount is more than the threshold limits of Rs. 1 Crore. The recovery certificates of RERA Authority are annexed. Thereafter a legal notice dated 30.04.2020 has also been served upon the corporate debtor and its directors. Two directors of the corporate debtor namely Mr. I.S. Gangola and Mr. Ram Sharan responded to the said legal notice stating that they are no more the directors of corporate debtor. No reply is filed till date from the corporate debtor and or remaining directors. The applicants states that the debt and default of the corporate debtor has also been registered with Information Utility namely NESL. The certificates from NESL have been annexed. 8. The applicant filed application under Section 7 of the I&B code 2016 and as per Form I Part IV the total amount of debt is Rs. 44 56 23 511 wherein the principal amount is Rs.19 12 52 673 and the interest is Rs. Rs.25 43 70 839 calculated @ 24% p.a. as per the clause 7 of the allotment letter is due and payable by the corporate debtor. 9. The corporate debtor filed reply to the application under Section 7 of the I&B Code 2016 and raised the following objections: a) That no amount remains due and payable to the applicants as per the allotment letter and that the applicants are not the creditors of the IB 9012020 Suraj Kumar Kaushal & Ors. Vs. Sarvottam Realcon Pvt. Ltd. P a g e | 10 corporate debtor. The corporate debtor states that he is financially sound and solvent hence CIRP should not be allowed. b) That the applicants have defaulted in payment of various demand raised by the corporate debtor but stated that the applicant failed to adhere the demands and defaulted in payments of installments qua the purchase of the said flats. c) That the applicants were required to make timely payments for timely delivery of possession but various homebuyers have time and again defaulted in payment on due dates as per the schedule due to which the delay has been caused. Hence due to shortage of funds the project got delayed and the construction site had been sealed by the Ghaziabad Development Authority on the basis of some illegal demand for which a writ petition bearing No.29551 2019 is filed and listed for final hearing. d) That huge loss has been incurred to the corporate debtor as ALT society the party with whom the corporate debtor signed MOU for construction has failed to fulfill its obligation. A claim of more than Rs.200 Crore against he said cooperative society has been filed. 10. The applicant filed rejoinder denying the contentions of the applicant and submitted the following: a) That there is no substance in the ground taken by corporate debtor to the effect that the delayed or non payment by the homebuyers is the cause of default. Further corporate debtor has failed to provide any substantive evidence in this regard to support its contention. b) It is further stated that the corporate debtor has not disputed that the 43 applicants have paid a sum of Rs.19 12 52 673 approximately more than 45 Lakh per person and which is higher than the actual cost of construction. The applicants state that there is IB 9012020 Suraj Kumar Kaushal & Ors. Vs. Sarvottam Realcon Pvt. Ltd. P a g e | 11 possibility that the funds of applicants have been used construction of flats of ALT society. That if there is non payment of certain installments as per the timelines has been caused due to the conduct of the corporate debtor. c) That there is no tenability in the ground that delay in payment has resulted in cost escalation as the corporate debtor had initially agreed to provide flats without any escalation. Further if default is occurred on part of the ALT society the applicants must not be punished for d) The applicants state that payments were linked to the stage and progress of construction hence payments have been made accordingly and even after that a substantial amount has been paid by each the same. applicant. e) That the writ petition also filed by the corporate debtor does not absolve the liability towards the applicants. Further no details of the said petition have been provided to the applicant. Moreover the proceedings have no bearing on the present application. It is also stated that as per the admission of the corporate debtor that the problem is beyond its control makes it a fit case for initiation of CIRP. 11. The applicant has filed written submissions and stated the following: a) With regards the amendment dated 13.03.2020 of Insolvency: Proviso Section 7(1) is stated that the entire project consists of approximately 408 units and as per the sanctioned plan 182 flats were to be given to ALT Society vide MOU dated 15.12.2013 in return of land rights which makes the ALT society an operational creditor. Hence 182 members do not qualify as financial creditors. Accordingly IB 9012020 Suraj Kumar Kaushal & Ors. Vs. Sarvottam Realcon Pvt. Ltd. P a g e | 12 the applicant constitutes 10% of the allotted units. Further it is stated that the corporate debtor as per the MOU signed had the right to sell free hold flats excluding the ALT society flats. b) That the corporate debtor has defaulted in payment of dues as is evident from the terms of allotment letter whereby the corporate debtor was required to give possession within a specified time. However the corporate debtor delayed and failed to do so moreover also refused to refund the money in spite of repeated demands. Recovery certificate from RERA has also been obtained by some of the applicants and the amount in default as per the said order is also more than 1 Crore. c) The case does not come under the ambit of Section 10A of IBC Ordinance dated 05.06.2020 as the default has occurred prior to the notified date and the amount in default is more than 1 Crore. 12. The date of default as per the NESL documents is in the year 2019.The present application is filed on 19.05.2020. Hence the application is within in the period and is not barred by limitation. 13. The registered office of the Corporate Debtor is situated at Delhi and therefore this tribunal has jurisdiction to entertain and try this 14. It is evident from the record that the application has been filed on the performa prescribed under Rule 4 of the Insolvency and Bankruptcy Application to Adjudicating Authority) Rules 2016 read with Section 7 of IBC. This Tribunal is satisfied that a default has occurred and the application under Section 7 is complete. IB 9012020 Suraj Kumar Kaushal & Ors. Vs. Sarvottam Realcon Pvt. Ltd. 15. Considering the documents on records and submissions made it can be P a g e | 13 concluded that the corporate debtor has failed to fullfil its contractual obligation as per the allotment letter signed with the applicants and failed to handover the timely possession of flats leading to default on part of the corporate debtor. Thus the amount paid by the applicant to the corporate debtor against the allotment of apartment which falls under the category of financial debt has remained unpaid. The corporate debtor has raised objection stating the hindrances with respect to non payment by ALT society to the corporate debtor and also changes in the government policies that they had to face for completion of the said project but the same has no relation with the applicant. It is a settled law that while dealing with the application under Section 7 the reason behind default or the factor leading to default need not be considered and only the financial debt being defaulted should be the criteria to decide while admitting the application filed under Section 7 of the code by a financial creditor. Hence the applicants should not be made to suffer for the default of the corporate debtor. Moreover the debt is registered with the NESL as per Form C annexed by the applicant. Further relying upon the judgment of Hon’ble Supreme Court in Innoventive Industries Ltd. vs. ICICI Bank & Anotherwherein it has been held that: …on the other hand as we have seen in the case of a corporate debtor who commits a default of financial debt the adjudicating authority has merely to see the records of the information utility or other evidence produced by the Financial Creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is “due" i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date." Thus in our view the present applicant has been filed by the homebuyers Financial creditors) for the default financial debt. This leaves no doubt that the application needs to be admitted. Accordingly the application is admitted. IB 9012020 Suraj Kumar Kaushal & Ors. Vs. Sarvottam Realcon Pvt. Ltd. P a g e | 14 16. The applicant has proposed the name of Mr. Sandeep Goel to be appointed as IRP who is be and hereby appointed as IRP of corporate debtor having registration number IBBI IPA003 IPN00073 2017 18 10583 having address at 410 Pratap Bhawan Bhadhur Shah Zafar Marg New Delhi 110002 and email id cmasandeepgoel@gmail.com The IRP has filed consent in form 2 of the Insolvency & Bankruptcy Board of India Application to Adjudicating Authority) Rule 2016 and make disclosures as required under IBBIRegulation 2016. 17. As a consequence of the application being admitted in terms of Section 7(5) of IBC 2016 moratorium as envisaged under the provisions of Section 14(1) shall follow in relation to the corporate debtor prohibiting the corporate debtor as per proviso to of section 14(1) of the Code. However during the pendency of the moratorium period terms of Section 14(2) to 14(3) of the Code shall come in force. 18. We direct the applicant to deposit a sum of Rs. 2 lacs with the Interim Resolution Professional namely Mr. Sandeep Goel to meet out the expense to perform the functions assigned to him in accordance with regulation 6 of Insolvency and Bankruptcy Board of India Regulations 2016. The needful shall be done within three days for the date of receipt of this order by the applicant. The amount however is subject to adjustment by the Committee of Creditors as accounted for by Interim Resolution Professional and shall be paid back to the applicant. 19. In terms of above order the application stands admitted in terms of Section 7 of IBC 2016. A copy of the order shall be communicated to the IB 9012020 Suraj Kumar Kaushal & Ors. Vs. Sarvottam Realcon Pvt. Ltd. P a g e | 15 applicants as well as to the Corporate Debtor above named by the Registry. Applicants are also directed to provide a copy of the complete paper book with copy of this order to the IRP. In addition a copy of the order shall also be forwarded to IBBI for its records and to ROC for updating the master data. ROC shall send compliance report to the Registrar NCLT. MS. SUMITA PURKAYASTHA DR. DEEPTI MUKESH Sd Sd MEMBERMEMBERIB 9012020 Suraj Kumar Kaushal & Ors. Vs. Sarvottam Realcon Pvt. Ltd.

Big-vehicle drivers are not always responsible for Motor Accidents: Madras High Court

Fixing the driver of the big vehicle as a tortfeasor is imprecise. It must not be assumed that always the big-vehicle drivers are responsible for the road accidents and thus be held liable for the same. Madurai bench of Madras High Court gave the judgment in the case of The Branch Manager of Tamil Nadu State Transport Corporation vs. Marimuthu & others [C.M.A(MD)No.358 of 2016 and C.M.P.(MD)No.5106 of 2016] by stating the above reasons; presided over by the bench of Hon’ble Justice K.Murali Shankar. In the present case, an appeal has been made by the appellant u/s 173 of the Motor Vehicle Act, 1988 challenging the order of the trial court. In the instant case, claimants (Family of the deceased) had filed a case against the appellant for a road accident in which the deceased with his other three friends were returning from their school but in the midway, the bus bearing Registration No.TN 55 0520, which came in the opposite direction in a rash and negligent manner, dashed against the two-wheeler, and as a result of which, all the four persons were thrown out and sustained serious injuries. Despite the treatment, Govindaraju (son of the claimants) died and therefore it was contended that the accident occurred due to rash and negligent driving of the bus driver. On the contrary, Bus driver and the appellants argued that the motorcycle drivers were responsible for the accident because they were unable to control their vehicle and that’s why bumped into the bus. In the trial court, considering the evidence and testimony of the witnesses, the appellant was held for the offence and therefore directed to pay Rs 662000/- with the interest of 7.5% per annum to the claimants as compensation.  In the High Court of Madras, the appellants made an appeal to challenge the order of the trial court. The trial court had relied on the judgments of 2011 (1) TN MAC 136 (DB), United India Insurance Company Limited, Karaikudi vs. Uma & others, and Mohammed Siddique and another Vs. National Insurance Company Limited & others [2020(1) TN MAC 161 (SC)]. In the High Court, arguments were raised by both the parties. High Court contended that a two-wheeler popularly called a Motorbike or motorcycle is designed and is meant for traveling of two persons. If anyone takes more than 2 persons and violates the two only rules, then he will be committing an offence and is punishable under Section 128 of the Motor Vehicles Act. Considering the technical and the other aspects, the court held that the rider and all the pillion riders were guilty of negligent riding/traveling. Considering all the facts and evidence, the court held that both the parties were equally liable for the accident and were also liable for contributory negligence, and therefore, the degree of contributory negligence was fixed at 50% on the part of the deceased.

C.M.A(MD)No.3516BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTReserved on : 11.12.2020Pronounced On : 04.02.2021 CORAMTHE HONOURABLE MR.JUSTICE K.MURALI SHANKARC.M.A(MD)No.3516andC.M.P.(MD)No.51016The Branch Manager Tamil Nadu State Transport Corporation Pillaithanneerpandal Thirumayam Road Pudukkottai. ... Appellant RespondentVs.1.Marimuthu2.Kamala3.Kayathiri : Respondents 1 to 3 Petitioners 1 to 3 PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act 1988 against the award made in M.C.O.P.No.4414 dated 30.06.2015 on the file of Motor Accidents Claims Tribunal Principal District Court Pudukkottai. 1 16 n C.M.A(MD)No.3516For Appellant : Mr.D.Sivaraman For Respondents : No AppearanceJUDGMENTThis Civil Miscellaneous Appeal has been preferred against the award passed in M.C.O.P.No.4414 dated 30.06.2015 on the file of Motor Accidents Claims Tribunal Principal District Court Pudukkottai. 2.Admittedly the first claimant is the father the second claimant is the mother and the third claimant is the sister of the deceased Govindaraju. The accident is admitted and the involvement of TVS Sport Motor Cycle and the Bus bearing Registration No.TN 55 0520 owned by the Appellant Transport Corporation is not in dispute. 3.The case of the claimants is that on 15.12.2011 when the deceased Govindaraju was returning to his school after purchasing paper and pen along with his three friends Venkateshwaran Prasanth and Gowthamanraj in a Motorcycle driven by the said Prasanth one lorry which was proceeding before the two wheeler had allowed the two 2 16 n C.M.A(MD)No.3516wheeler to overtake the lorry that when the two wheeler rider was proceeding after overtaking the said lorry the bus bearing Registration No.TN 55 0520 which came in the opposite direction in a rash and negligent manner dashed against the two wheeler and as a result of which all the four persons were thrown out and sustained serious injuries that the said Govindaraju despite treatment succumbed to the injuries on 26.12.2011 and that the accident had occurred only due to the rash and negligent driving of the Bus driver. 4.The defence of the Transport Corporation is that on 15.12.2011 at about 01.20. pm when the Bus after brief stop at Vadakadu school Bus stand was proceeding towards west two lorries and a Sumo Car came in the opposite direction and on noticing the same the Bus driver diverted the Bus towards left side of the road that at that time one two wheeler with four boys by overtaking the lorries came in a rash and negligent manner and on seeing the same the Bus driver had immediately stopped the Bus and sounded horn that the two wheeler rider who was unable to control the vehicle had dashed against the front right side bumper of the Bus and caused the accident and that the Motorcycle rider was responsible for the accident. 3 16 n C.M.A(MD)No.35165.During enquiry the claimants have examined the first claimant as P.W.1 and one Rengan alleged to be the occurrence witness as P.W.2 and exhibited five documents as Ex.P.1 to Ex.P.5. The Appellant Transport Corporation has examined its driver Thiru.Subramanian as R.W.1 and adduced no documentary evidence. 6.The trial Court upon considering the evidence both oral and documentary has passed the impugned award dated 30.06.2015 holding that the Bus driver was responsible for the accident and directing the appellant to pay compensation of Rs.6 62 000 with interest at 7.5% per annum to the claimants. Aggrieved by the said award the Transport Corporation has preferred the present appeal. 7.The learned counsel for the appellant would contend that the deceased Govindaraju was proceeding in a two wheeler along with three persons and while the rider had tried to overtake the lorry without noticing the Bus which came in the opposite direction and thus invited the accident that the accident had occurred only due to the negligence on the part of the deceased himself and that even otherwise the deceased 4 16 n C.M.A(MD)No.3516had contributed to the accident and as such he was liable for contributory negligence. 8.It is not in dispute that the deceased was proceeding in a two wheeler as a pillion rider along with his three friends Venkateshwaran Prasanth and Gowthamanraj and that the two wheeler was owned by the said Gowthamanraj. The claimants in order to prove their case have examined P.W.2 Rangan as occurrence witness and he would reiterate the version of the claimants and according to him when he was taking Tea at Thankaprakasam Tea Stall on 15.12.2011 the Bus bearing Registration No.TN 55 0520 which came in a rash and negligent manner and without sounding horn dashed against the two wheeler and as a result of which motorcycle rider and pillion riders had sustained serious injuries and that the accident was occurred only due to the rash and negligent driving of the bus driver. 9.P.W.2 in his cross examination would say that he came to depose at the request of the claimants that he had not lodged any complaint with the police that he was taking tea at the time of accident and that the Bus came towards west. He would deny the suggestion that the accident was 5 16 n C.M.A(MD)No.3516occurred due to the negligence of the deceased Boy and that he was deposing falsely as both of them were belonging to the same place. 10.As already pointed out the Appellant Corporation has examined its driver as R.W.1 and he would narrate the manner of the accident as put forth in their counter statement. R.W.1 would say that after seeing the two wheeler with four persons coming in the opposite direction in a rash and negligent manner he stopped the Bus at a distance of 15 feet that they were unable to control their vehicle and that the accident was occurred for the reason that four persons had travelled in the two wheeler. 11.R.W.1 in his cross examination would say that FIR was lodged against him that he has not preferred any complaint before the police as FIR was wrongly registered against him that he has not filed any documents to show that he preferred a complaint and that he has not filed any documents to show that the criminal case ended in his favour. No doubt though R.W.1 has stated that the criminal case ended in his favour he has not produced any documents to prove the same. But the fact remains that though R.W.1 has specifically stated that the complaint 6 16 n C.M.A(MD)No.3516registered against him has been closed in FIR stage itself the same was not specifically disputed or denied by the claimants. 12.The trial Court has relied on the decision reported in 2011TN MAC 136United India Insurance Company Limited Karaikudi Vs. Uma and others. In that case the deceased was travelling with his wife and 14 years old son in a two wheeler and the High Court has held that simply because three persons travelled in a motorcycle it is not to be presumed that the deceased was negligent in riding the two wheeler and rejected the plea of contributory negligence. No doubt recently our Hon ble Supreme Court in Mohammed Siddique and another Vs. National Insurance Company Limited and others reported in 2020(1) TN MAC 161has set aside the order of the High Court holding that the victim was guilty of contributory negligence. In that case the accident was occurred at 02.00.am and the motorcycle in which the deceased was travelling was hit by a Car from behind. The Hon ble Apex Court has held that the fact that a person was a pillion rider on a motorcycle along with driver and one more person on pillion may be a violation of the law but such violation by itself without 7 16 n C.M.A(MD)No.3516anything more cannot lead to a finding of Contributory Negligence unless it is established that his very act of riding along with two others contributed either to the accident or to the impact of the accident upon the victim. In para No.14 the Hon ble Apex Court has held as follows: “14.Therefore in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained the victim could not have been held guilty of Contributory Negligence. Hence the reduction of 10% towards Contributory Negligence is clearly unjustified and the same has to be set aside.” 13.The learned counsel for the Appellant has relied on the decision of this Court reported in 2012TN MAC 713 [Oriental Insurance Company Limited Vs. Sivakami and others.]In para No.10:“10.In spite of warning of this Court earlier deprecating the practice of the drivers of Two wheelers carrying more number of passengers unfortunately as rightly pointed out they do not care about their lives when they take the entire family in a Two wheeler which has to be deprecated and therefore as rightly held by the Hon ble Supreme Court this Court only would say that by carrying extra person the injured person definitely has contributed to 8 16 n C.M.A(MD)No.3516the accident and 50% is liable to be borne by the injured person as he has violated Section 128 of the Motor Vehicles Act. Hence this Court is of the view that contributory negligence can be fixed at 50%.”14.Generally two wheeler popularly called as Motor bike or motorcycle is designed and is meant for travelling of two persons. If anyone takes more than 2 persons and violates two only rule then he will be committing an offence and is punishable under Section 128 of the Motor Vehicles Act. 15.That is one aspect of the matter. Let us discuss the other aspect. Suppose if a two wheeler rider takes two grown up persons or weighty and bulky persons or three grown up persons in the pillion which is only meant for one person what would be the effect or impact Firstly rider has to necessarily move forward towards petrol tank so as to give some place to those pillion riders which forces him to sit and ride in an unusual position and posture. Secondly if 2 or 3 persons are seated in the pillion then they have to necessarily sit in a cramped or jam packed position along with rider and the rider will definitely feel or suffer pressure behind which in turn will definitely affect or disturb his rhythm of 9 16 n C.M.A(MD)No.3516driving and consequently balancing of the vehicle. Thirdly if any one of 2 or 3 pillion riders makes any movement usual or unusual that would make the rider to loose his control over the vehicle. In the above scenario the movement of rider s legs and hands would get restricted and consequently he can t have full control over the vehicle.16.Now coming to the technical side there are many factors like weight aerodynamics gearing etc. which contribute to determining a vehicle s top speed and acceleration. But Power and Torque are the most important factors Power determines the vehicle s top speed and Torque helps the vehicle in its acceleration. In automobile industry it is commonly said that higher the power of a vehicle higher is its top speed and that better the torque of a vehicle better is its acceleration. Various automobile manufacturers are releasing their two wheelers with different maximum power and maximum torque and with lot of facilities for easy and convenient riding and for safe and comfortable travelling even for very long distances. But whatever be the power or torque and whatever be the facilities made the two wheeler is only meant to take a rider and a pillion rider and not more than two at any cost. If the rider takes 2 or 3 persons in his vehicle then he has to give more acceleration to increase 10 16 n C.M.A(MD)No.3516the pulling capacity so as to take more weight. The efforts required from the rider to maintain the acceleration level would affect or divert his attention and concentration.17.Despite the penal laws and awareness programmes conducted by the Governments and various NGOs people have not changed. Every road user owes a duty of care and caution and is duty bound to drive their vehicles in such a way not to endanger themselves and more importantly not to endanger the pedestrians cyclists two wheelers and other vehicle users.18.As per the statistics available for the past two years excluding the Corona year of 2020 in 2018 India ranked 1st in the road accidents across 199 countries with total accidents at 4 67 044 in which two wheeler accidents accounted for 35.2% the highest in all categories of vehicles. It is pertinent to note that in India the state of TN stood 1st in the number of accidents. In 2019 total accidents occurred were 4 37 396 in which 38% of victims of road accidents were riders of two wheelers.11 16 n C.M.A(MD)No.351619.It is high time for all stakeholders to review our mind set that in cases of road accidents involving big and small vehicles fixing the driver of the big vehicle as tort feasor as in majority of cases FIRs came to be registered against the driver of the big vehicle and investigations are being carried out in such a way to make that driver is responsible for the accident. It is also high time for all who are dealing with motor accident claims to review our mentality in considering the plight of the injured victim or the legal heirs of the deceased victim sympathetically and awarding of compensation in the accidents occurred by violating the Laws and Rules.20.No doubt as already pointed out taking more than 2 persons in a two wheeler by itself is an offence but whether it would amount to negligence or not is required to be decided on the facts and circumstances of the given case. If a rider takes 2 persons as pillion riders that itself would not amount to negligence. For example if a rider takes his wife and a child or if he takes 2 small boys or lean persons that by itself would not amount to negligence. But if the rider takes 2or 3 grown up persons or obese persons that by itself would amount to negligent driving since the rider can loose his control of the vehicle at 12 16 n C.M.A(MD)No.3516any point of time. In the case on hand since four grown up students had travelled in the two wheeler I have no hesitation to hold that the rider and all the pillion riders are guilty of negligent riding travelling.21.In the present case to some extent it s a case of head on collision. In Ex A3 the Motor vehicle Inspector has pointed out that he noticed some damages in the centre of bumper and grill of the Bus. The Appellant in their counter statement has taken a stand that the Bus driver after noticing the two wheeler with four persons coming after overtaking two lorries in the opposite direction stopped the Bus on the left extreme of the road and that at that time two wheeler rider who came in a rash and negligent manner unable to control the vehicle dashed against the front right side bumper of the Bus. The Tribunal on considering the damages shown in MVI Report has observed that the version of the Appellant cannot be accepted. Considering the evidence available I am of the view that the variation shown as to where the damages occurred in the Bus does not make any difference.22.Though the claimants have pleaded that lorry driver had allowed the two wheeler rider to overtake the lorry and while proceeding 13 16 n C.M.A(MD)No.3516after overtaking the lorry bus driver who came in the opposite direction in a rash and negligent manner had dashed against the two wheeler they have not chosen to examine the said lorry driver nor gave any particulars of the said lorry.23.Since the two wheeler was proceeding on the right side of the lorry and was overtaking the lorry as alleged by the claimants two wheeler rider should have seen the Bus coming from the opposite direction. Even after seeing the Bus he decided to proceed further and in that decision we can easily infer that he miscalculated the speed of the vehicles the space and the time taken to cross that space between the two wheeler and the Bus as he was carrying more weight than the prescribed. Considering the above this court is of the clear view that not only the two wheeler rider but all the pillion riders are also liable for contributory negligence. Considering the entire facts and circumstances this court is also of the view that the degree of contributory negligence can be fixed at 50% on the part of the deceased and is fixed accordingly.24.Though the Appellant has disputed the quantum of compensation arrived at and the mode of calculation in the Appeal 14 16 n C.M.A(MD)No.3516memorandum the same was not pressed into service. Considering the other facts and circumstances of the case this Court further decides that the parties are to be directed to bear their own costs and the above points are answered accordingly. 25.In the result the Civil Miscellaneous Appeal is partly allowed directing the claimants to bear 50% of the amount awarded by the tribunal for contributory negligence. In case if the Appellant Corporation has already deposited the entire amount they are at liberty to withdraw the 50% of the amount with proportioned interest and the claimants are permitted to withdraw their share amounts with interest and costs on due application before the Tribunal. Parties are directed to bear their own costs. Consequently connected Miscellaneous Petition is closed. 04.02.2021Index : Yes : NoInternet : Yes : Nodas15 16 n C.M.A(MD)No.3516K.MURALI SHANKAR J.dasTo1.The Motor Accidents Claims Tribunal Principal District Court Pudukkottai. 2.The Record Keeper Vernacular Section Madurai Bench of Madras High Court Madurai. C.M.A(MD)No.3516andC.M.P.(MD)No.5101604.02.202116 16

The scheme for regularization by the government must be for validating certain irregular appointments and cannot be used to validate illegal appointments: The Hon’ble High Court of Jammu & Kashmir and Ladakh

The decision of the Supreme Court in State of Jammu and Kashmir and others v. District Bar Association, Bandipora that the scheme for regularization framed by the government must be for validating certain irregular appointments and cannot be used to validate illegal appointments and that the court cannot issue direction for regularization without considering the mandate of the Supreme Court and the prevailing rules and regulations on the subject. In the Hon’ble High Court of Jammu & Kashmir and Ladakh led through the single bench by Justice Pankaj Mithal in the matters of State of Jammu and Kashmir & Ors. v. Abdul Majid & Ors.[LPA/22/2019]. The facts of the case are the State of Jammu and Kashmir, the Transport Commissioner and the Regional Transport Officer, Kathua has together preferred this letters patent appeal, holding the petitioners therein entitled to regularization of services in terms of Jammu & Kashmir Civil Services (Special Provisions) Act, 2010 (for short ‘the Act’). The brief facts which had led to the filing of the writ petition and consequently this appeal are that that the petitioners/respondents were appointed on a temporary basis as orderlies in the Transport Department in the year 1999, some in 2002 and 2003 for a period of 89 days but were allowed to continue even thereafter with an intermittent break of a day or so. After the enforcement of the above Act, as the petitioners/ respondents have completed more than seven years of continuous service and have otherwise fulfilled the essential conditions laid down for regularization therein, they claimed regularization but their claim was rejected on the ground that they were drawing a salary from the contingent fund. The counsel for the state appellants submits that the court is justified in holding the petitioners to be entitled to regularization as the aforesaid Act was not applicable to them. They were being paid salary out of the ‘Contingent Fund’ and employees drawing a salary from the contingent fund are not entitled to regularization under the Act. Moreover, the petitioners/ respondents were not engaged against any clear vacancy which is a prerequisite for seeking regularization in services. It is also submitted that in view of the Secretary, State of Karnataka and Others v. Umadevi and others, AIR 2006 Supreme Court 1806, no appointment is permissible in law dehors the rules or the process of selection envisaged by the constitutional scheme and as such appointment so made are not required to be regularized. Learned counsel appearing for the petitioners/respondents submits that the petitioners/ respondents fulfil all the necessary conditions for the regularization of services under the aforesaid Act. The appointment of the petitioners/respondents was against the clear vacancies and as such, they could not have been denied regularization on the aforesaid count. Accordingly, the writ court has rightly quashed the consideration order rejecting the claim of the petitioners/respondents. The aforesaid Act is the outcome of the decision of the Supreme Court in the case of Umadevi (supra) and as such, any regularization within the framework of the aforesaid Act is not illegal or against the constitutional mandate. The court concluded “The writ court has considered their cases for regularization in the light of the provisions of the Act without impinging upon the mandate of the Apex Court. The petitioners/respondents have been found entitled for regularization of services in accordance with the prevailing rules and regulations.” The court directed “In view of all that has been said above, we find no illegality in the judgment and order passed by the writ court. The appeal as such is bereft of merits and is dismissed with no order as to costs.”

Sr. No. 5 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU CJ Court Reserved on: 11.11.2021. Pronounced on:17.11.2021. Case: LPA No. 219 State of Jammu and Kashmir and others .....AppellantThrough : Sh. Adarsh Bhagat GA. Abdul Majid and others Through : Sh. Ajay Abrol Advocate. Sh. Anirudh Sharma Advocate vice Sh. Rahul Pant Senior Advocate. Sh. Achal Sharma Advocate vice Sh. Sudershan Sharma Advocate HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE MOHAN LAL JUDGE PANKAJ MITHAL CJ The State of Jammu and Kashmir the Transport Commissioner and the Regional Transport Officer Kathua have together preferred this letters patent appeal against the judgment and order dated 22.11.2018 passed by the writ court allowing SWP No. 2319 2015 Abdul Majid and others v. State of J&K and others holding the petitioners therein entitled to regularization of services in terms of Jammu & Kashmir Civil ServicesAct 2010and as such any regularization within framework of the aforesaid Act is not illegal or against the constitutional mandate. The petitioners respondents on the date of their initial engagement were qualified and eligible for appointment and it is no one’s case that their appointment was de hors the rules or the process prescribed. The brief facts which had led to the filing of the writ petition and consequently this appeal are that that the petitioners respondents were appointed on temporary basis as orderlies in the Transport Department in the year 1999 some in 2002 and 2003 for a period of 89 days but were allowed to continue even thereafter with intermittent break of a day or so. After the enforcement of the above Act as the petitioners respondents have completed 3 LPA No.22 2019 more than seven years of continuous service and have otherwise fulfilled the essential conditions laid down for regularization therein they claimed regularization but their claim was rejected on the ground that they were drawing salary from the contingent fund. The petitioners respondents challenged the aforesaid rejection order and sought direction for regularization by filing SWP No. 250 2013 Abdul Majid and others v. State of J&K and others. The court allowed the aforesaid writ petition on 12.09.2014 and petitioners respondents with the direction to the official respondents to consider their cases for the purposes of regularization strictly in accordance with the aforesaid Act and that the ground that the petitioners respondents were being paid out of the contingent fund would not be a ground for refusing regularization to them. Admittedly the aforesaid order is final and conclusive as it was never questioned by any party in any higher forum. On consideration of the cases of the petitioner respondents for regularization as per the direction of this court the Empowered Committee competent to consider the cases for regularization in its meeting held on 18.05.2015 held that the petitioners respondents have not been engaged against any clear vacancy or post and as such do not fulfill the criteria laid down under Section 5(i) of the Act for regularization. In view of the above order the only ground on which the claim for regularization of services of the petitioners respondents has been rejected is that they were not employed against any clear vacancy or a post. It was also said that though under the Act persons getting salary out of the contingent fund are also not entitled for regularization but this ground was not invoked by the Department probably in the light of the earlier direction of the court. 4 LPA No.22 2019 In view of the aforesaid facts and circumstances basically two grounds have been pressed for denying regularization of services of the petitioners respondents. The first is that they were being paid salary out of the contingent fund and second that they were never appointed against any clear vacancy or post and as such are not entitled for regularization within the meaning of Section 5 of the Act. It is pertinent to mention here that the aforesaid Act came to be enacted and enforced pursuant to the directions of the Supreme Court in the case of Umadeviwhich directed for framing a proper one time scheme for the regularization of temporary workers who have put in over 10 years or more on a sanctioned post. The aforesaid Act envisages to regularize the services of all ad hoc or contractual employees including those appointed on consolidated pay provided they have not been appointed as part time or seasonal employees including those whose wages are paid out of local funds or contingent grants. It further provides that such appointees ought to have been appointed against a clear vacancy or post and that they may have completed 7 years of service on the appointed date. In short a plain reading of Section 3 and Section 5 of the Act provides for the regularization of services of ad hoc or contractual employees including those appointed on consolidated pay if they have been appointed against a clear vacancy or post and have completed 7 years of service provided further that such benefit would not be extended to part time or seasonal employees including those who are being paid out of the local funds or the contingent grants. The issue whether the petitioners respondents were being paid out of the contingent fund had come up for consideration in the first round of litigation i.e. in SWP No. 250 2013 and the order refusing to regularize 5 LPA No.22 2019 services on the above grounds was quashed with the direction to consider the cases of regularization of services of the petitioners respondents afresh strictly in accordance with provisions of the Act and that payment of salary out of the contingent fund would not be a ground for refusal. As stated earlier the aforesaid judgment and order has attained finality and therefore it does not lie in the mouth of the appellants at this juncture to raise again the said issue which stands settled. In fact the said ground was not even invoked by the Department before the Empowered Committee that dealt with the matter of regularization of services of the petitioners respondents. The other issue on which the petitioner respondents have been non suited is that their appointment was not against any clear vacancy or post. In this regard the writ court has opined that no such objection was ever taken by the appellants at any stage in the first round of litigation and as such must be deemed to have been given up or be treated as barred by principle of constructive res judicata. Notwithstanding the above the writ court on the basis of the communication of the Department dated 03.09.2009 recorded a categorical finding that according to the Transport Commissioner all the petitioners respondents were appointed against clear vacancies and therefore the argument has no substance. We have also examined the communication dated 03.09.2009 which is part of the record. It is a letter addressed by the Transport Commissioner to the Commissioner Secretary to the Government for the purpose of considering the cases for regularization of services of the employees of the Department in accordance with the above Act. The said communication contains a chart in the prescribed proforma ‘C’ giving the name of the employees their designation pay date of initial appointment the designation of the appointing authority 6 LPA No.22 2019 whether the person is continuing in service and if his appointment was against a clear vacancy or otherwise. The said chart clearly mentions that the petitioners respondents were appointed against clear vacancy as orderlies on check post on a consolidated remuneration of Rs.1500 per month by the Transport commissioner and that they are continuing in service from the date of their initial appointment. The aforesaid communication clinches the issue regarding the appointment of the petitioners respondents and establishes beyond doubt that as per the own showing of the Transport Commissioner they were appointed against the clear vacancies. In view of the aforesaid facts and circumstances both the grounds that the appointment of the petitioners respondents was not against clear vacancy or post and that they were paid from the contingent fund do not stand substantiated and as such the writ court committed no error of law in holding that they are entitled for regularization of their services under the Act. petitioners respondents states that as their appointment is not against clear vacancy or post they are not qualified for regularization in terms of Section 5 of the Act. The veracity of the said letter has to be judged on the basis of the reasoning recorded therein and that the said reasoning cannot be supplemented by means of pleadings or arguments as has been held by the Apex Court in the case of Mohinder Singh Gill and another v. Chief Election Commissioner and others AIR 1978 Supreme Court 851 wherein it has been laid down that when a statutory authority makes an order based on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In view of the above dictum the 7 LPA No.22 2019 appellants in fact cannot be permitted to take up any other ground other than refusing regularization on the account of not appointment against clear vacancy or post. It may not be out of context to point out that any intermittent breaks of one or two days in service would not disrupt the continuance in service as such breaks are artificially created. The fact remains that the services continued from day one till the appointed day resulting in completion of seven years of service. The Act contemplates seven years of completed service rather than continuous service and in such a situation intermittent breaks of a day or two or such artificial breaks are meaningless and would not be sufficient to hold that the petitioners respondents do not have seven years of service to their credit. In view of the above decision the submission that the writ court acted contrary to Umadevi’s case and against the constitutional mandate is of no consequence. In fact in holding the petitioners respondents entitled to regularization in accordance with the statutory provisions there seems to be no violation of the constitutional mandate or even the decision of the Apex Court in Umadevi which itself provides for framing of a scheme for one time regularization. The recent decision of the Supreme Court in State of Jammu and Kashmir and others v. District Bar Association Bandipora AIR 2017 Supreme Court 11 that the scheme for regularization framed by the government must be for validating certain irregular appointments and cannot be used to validate illegal appointments and that the court cannot issue direction for regularization without considering the mandate of the Supreme Court and the prevailing rules and regulations on the subject is of no help to the appellants in the present case inasmuch as no illegality has been pointed out at any stage in the appointment 8 LPA No.22 2019 of the petitioners respondents. They may have been irregularly appointed and it is for this reason their cases fell for consideration of regularization in accordance with the statutory provisions of the above Act. The writ court has considered their cases for regularization in the light of the provisions of the Act impinging upon the mandate of the Apex Court. The petitioners respondents have been found entitled for regularization of services in accordance with the prevailing rules and regulations. In view of all that has been said above we find no illegality in the judgment and order passed by the writ court. The appeal as such is bereft of merits and is dismissed with no order as to costs. (PANKAJ MITHAL) JUDGE CHIEF JUSTICE JAMMU Raj Kumar Whether the judgment is reportable :

A.Venkatesan V/S State Information Commissioner & Ors

“One of the first principles of law with regard to the effect of an enabling act is that a legislature enables something to be done, it gives power at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purpose in view.” New India Assurance Co., Ltd., had received notice in a proceeding before the Motor Accidents Claims Tribunal claiming compensation for the victim in an accident involving the vehicle bearing Registration No. TN-07-A5 6214 said to have been insured with it.The services of the Petitioner was engaged as ‘investigator’ by the Sixth Respondent to collect copies of the documents relating that accident and the vehicle involved from the concerned persons including the police authorities.The erstwhile practice followed had been that such investigators engaged by the insurers would collect copies of the required documents from the concerned persons and police authorities and submit their investigation report for enabling the insurers to effectively conduct the proceedings before the Motor Accident Claims TribunalISSUE BEFORE THE COURT:Whether the provisions of the Right to Information Act, 2005, could be invoked for obtaining documents from police authorities in connection with defending a claim for compensation before the Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act, 1988?Whether an ‘investigator’ appointed by an insurer is empowered to correspond with public authorities and/or prosecute litigation relating to furnishing of documents in connection with an accident involving a vehicle said to be insured with that insurer?What is the legal remedy available to an insurer when documents required from police authorities in connection with an accident involving a vehicle said to be insured with it have not been furnished? RATIO OF THE COURT:The court held that it must also be recapitulated here that the liability of an insurer to meet a claim for compensation made by a third party arising out of an accident caused by use of a motor vehicle insured with it emanates from the Motor Vehicles Act, 1988, which law has also created the exclusive forum of Motor Accidents Claims Tribunal to adjudicate the same. In that statute, Chapter XI containing Sections 145 to 164 relates to ‘Insurance of Motor Vehicles against Third Party Risks’ and Chapter XII containing Sections 165 to 176 relates to ‘Claims Tribunal’. It could be inferred from Sections 158(6) and 160 of that enactment read with Rule 150 of the Central Motor Vehicles Rules, 1989, that there is an entitlement, as of right, conferred on the insurer to be furnished with particulars required of the vehicle said to have been insured with it and of the accident in which it is reported to be involved, by the concerned police authorities, and that would necessarily also mean supplying copies of relevant documents in proof thereof.The Hon’ble Supreme Court of India in General Insurance Council v. State of Andhra Pradesh [(2007) 12 SCC 354] and the Division Bench of this Court in United India Insurance Co., Ltd. v. R. Venkatesan (2003-1-L.W. 31) have reiterated that the statutory obligations on the police authorities in terms of the said provisions is mandatory and has to be forthwith complied on occurrence of accident involving the motor vehicle without brooking any delay.This Court in Cholamandalam MS General Insurance Co., Ltd. v. Inspector of Police, Cuddalore (Order dated 12.09.2017 in Crl.O.P. No. 18110 of 2016) has declared that that the hosting of the required documents in the CCTNS portal of the Police Department in the internet is the online version of carrying out that statutory obligation by the police authorities in the State of Tamil Nadu and it is precisely for that reason, the requirement of furnishing manual copies of those documents to the Motor Accidents Claims Tribunals and insurers has been done away, upon having meticulously verified that access to that facility has been made available to them, and that aspect has also been expressly recorded in that decision. In other words, it follows that there is definitely a functional system in place as on date in the digitalized mode for the police authorities to discharge their obligations to the insurers in terms of Sections 158(6) and 160 of the Motor Vehicles Act, 1988. The court stated that when a particular statute provides for access to information by prescribing a procedure in that regard, the provisions of the Right to Information Act, 2005, shall not be invoked for the same purpose and that the overriding effect in Section 31 of the Right to Information Act, 2005, cannot have any application in the absence of inherent inconsistency between that enactment and the other law. Another facet of the matter, which has relevance to the dispute involved in this case, as pointed out in that decision, is that Section 8(1)(j) of the Right to Information Act, 2005, excludes disclosure of personal information which (i) has no relationship to any public interest or activity; or (ii) would cause unwarranted invasion of the privacy of the individual. It is beyond cavil that the documents required by the insurer from the police authorities regarding the accident and the vehicle involved undoubtedly pertain to personal information either of the victim or the vehicle owner which would fall under that exception.It may also be remembered here that a Nine Judge Bench of the Hon’ble Supreme Court of India in K.S. Puttaswamy v. Union of India [(2017) 10 SCC 1] has in no unmistakable terms recognized that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. Viewed from that perspective, it must be held that when the right has been created for the insurer to obtain the required documents from the police authorities in a certain way under the Motor Vehicles Act, 1988, such right must be exercised only in that way and that other modes (including invocation of the provisions of the Right to Information Act, 2005) for seeking that relief, stand necessarily forbidden.Then the court held on the locus standi of an investigator, like the Petitioner in this case, to correspond with police authorities and prosecute litigation relating to the documents required by the insurer. It is axiomatic that the relationship between an insurer and an investigator appointed by that insurer to collect documents and make enquiries regarding the accident involving the vehicle said to have been insured with that insurer, is simply that of principal and agent.It is an elementary principle of law that an agent, in his own personal capacity, cannot enforce the rights of his principal as against third persons and at best, he can act or represent on behalf of his principal for that purpose depending upon the extent of his authority in that regard, but that would not, by any stretch of imagination, entitle the agent to act independent of his disclosed principal. It cannot be forgotten here that the insurer collects funds from the public as vehicle owners in the form of insurance premia for meeting the claims for compensation arising out of motor accidents in pursuance of the requirement imposed by law. As a corollary, the role of the insurer in defending third party claims arising out of motor accidents is that of a trustee of public funds and as such, it is one of the essential duties required to be performed by the hierarchy of officials in the organizational structure of the insurer, which responsibility ought not to be abdicated by ingenious methods of outsourcing those functions to freelancers appointed as investigators under the ruse of lack of manpower. It is, no doubt, true that in the absence of any prohibition, the hiring of services of individuals on contract basis for carrying out specific tasks of a business entity due to exigencies would be permissible for supplementing the performance of work, but that arrangement cannot lead to absurd consequences of supplanting the essential functions of the insurer itself.It is probably in that factual backdrop, the right of access to the CCTNS portal has been thoughtfully restricted only to stakeholders (which undoubtedly includes the insurer) on payment of prescribed fee, and it cannot be carped that there is no provision for other intermeddlers, who are in no way connected with it, for using that facility, as it is likely to otherwise cause invasion of the privacy of the victims and the vehicle owners by misuse of their personal information. That being so, it is really inconceivable as to how the Petitioner in this case could independently assert rights against the police authorities to produce documents required by the Sixth Respondent and further prosecute this Writ Petition in his personal capacity for such object.The court observed that when an application for that purpose is made by an insurer in a pending Claim Petition for compensation, it is incumbent upon that Motor Accidents Claims Tribunal to expeditiously consider the same and pass appropriate orders thereon in accordance with law. If found necessary, the Motor Accidents Claims Tribunal may by recording reasons in writing also extend time to the insurer to file counter or defer the conduct of trial till the required document is actually produced, on case to case basis, having due regard to its material nature and relevancy, bearing in mind the salutary intention that the ends of justice has to be secured for comprehensive and meaningful adjudication of the matter ultimately. The orders passed by the Motor Accidents Claims Tribunal on such application made by an insurer, would certainly be amenable to the superintending jurisdiction of this Court under Article 227 of the Constitution.When such efficacious mechanism exists in the statutory provisions, it is hard to believe that the insurer is helpless when the required documents are not uploaded in time in the CCTNS portal of the Police Department in the internet, as sought to be portrayed by the Petitioner in this case. DECISION HELD BY COURT:At last the court stated that where the concerned police officer, without justifiable cause, fails to promptly comply with an order passed by the Motor Accidents Claims Tribunal to produce the document required by an insurer in terms of Sections 158(6) and 160 of the Motor Vehicles Act, 1988, or does not respond to the direction issued by the Nodal Officer for uploading such document in the CCTNS portal of the Police Department, he shall be liable for disciplinary action as per rules.Hence, the Director General of Police, Tamil Nadu, is directed to issue a circular in this regard along with a copy of this order to all the concerned Police Officers in the State of Tamil Nadu requiring strict compliance of their statutory obligations mentioned supra, and also send copies of the same to the insurance companies which have been registered with the CCTNS portal of the Police Department for availing the online facility for downloading required documents.The Registry of this Court, after obtaining necessary orders from the Hon’ble Chief Justice, shall also communicate copy of this order to all the Presiding Officers of the Motor Accidents Claims Tribunals in Tamil Nadu and Puducherry for apprising the legal position enunciated in this order. In the upshot, the Writ Petition is dismissed. No costs.

W.P. No. 102319IN THE HIGH COURT OF JUDICATURE AT MADRASRESERVED ON: 30.08.2019PRONOUNCED ON: 01.06.2020CORAMTHE HONOURABLE MR. JUSTICE P.D. AUDIKESAVALUW.P. No. 102319A. Venkatesan ... Petitioner vs 1. The State Information Commissioner Tamil Nadu Information Commission No. 2 Sir Thiyagarayar Road Eldams Road Junction Theynampet Chennai 600 018.2. The Superintendent of Police 1st Appellate Authority Tiruppur District.3. The Public Information Officer Additional Superintendent of Police Police Head Office Tiruppur District.4. The Deputy Superintendent of Police Udumalpet Sub Division Tiruppur District.5. The Inspector of Police Thali Police Station Tiruppur District.6. The Branch Manager New India Assurance Company Ltd. Amman Complex Erode 11. ... Respondents1 22 n W.P. No. 102319PRAYER: Writ Petition filed under Article 226 of the Constitution of India 1950 praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned order passed by the Second Respondent vide his office Proceedings No. Na. Ka. No. 02 AP Tha.A.U.Sa Me.Mu.A.thi 18 dated 15.03.2019 by enclosing letter of the Third Respodent vide his office Proceedings No. C. No. 02 RTI SDO Udt 2019 dated 11.03.2019 who in turn enclosing the letter of the Fifth Respondent vide his office proceedings No. C. No. 18 RTI UDT PS 19 dated 10.03.2019 rejecting the appeal filed by the Petitioner dated 19.02.2019 and confirming the impugned order passed by the Third Respondent vide his office Proceedings No. Na. Ka. No. 71 19 Tha.A.U.Sa Po.Tha.A.Thi.Ma 19 dated 13.02.2019 and quash the same and consequently direct the Second to Fifth Respondents to furnish the documents as per the application of the Petitioner dated 28.01.2019 to the Petitioner within the time fixed by this Court. For Petitioner: Mr. I.C. VasudevanFor Respondents: Mr. Niranjan RajagopalanMr. R. Venkatesh Government AdvocateMr. K.Thirunavukkarasu3 22 n W.P. No. 102319regime from 01.03.2017 onwards in the State of Tamil Nadu as approved by this Court in Cholamandalam MS General Insurance Co. Ltd. vs Inspector of Police Cuddalorefollowing the directions issued by the Hon’ble Supreme Court of India in Jai Prakash vs National Insurance Co. Ltd. No. 11801 118005) the practice of furnishing manual copies of the documents by the Police Authorities has been dispensed with as the stake holders can download copies of those documents from the Crime and Criminal Tracking Network Systemportal of the Police Department in the internet. According to the Petitioner most of the documents required by the Sixth Respondent had not been hosted in the CCTNS portal of the Police Department in the internet which necessitated the Petitioner to make application dated 28.01.2019 to the police authorities who are the Second to Fifth Respondents in this Writ Petition under the provisions of the Right to Information Act 2005 for furnishing manual copies of the required documents but that request has been declined. Claiming to be aggrieved thereby the Petitioner has filed this Writ Petition challenging those orders of refusal and has sought for consequential direction to the police authorities to furnish copies of those documents. 4 22 n W.P. No. 1023193.The Fifth Respondent has filed counter affidavit dated 26.07.2019 stating that all documents sought relating to the accident and vehicle in question have been uploaded on 05.12.2018 in the CCTNS portal of the Police Department in the internet which could be downloaded by the Sixth Respondent on payment of prescribed fees.4.During the course of hearing it is highlighted by the Learned Counsel for the Petitioner that though the police authorities now claim to have made available the required documents in their website in the internet in the present case the undeniable reality is that in respect of most of the accidents documents are leisurely uploaded on piece meal basis in the respective police stations as a result of which the insurers are not able to provide timely instructions to their Advocates to prepare Counters so as to effectively conduct the cases before the Motor Accident Claims Tribunals where it is found difficult to seek extension of time to file the same beyond the stipulated period. It is further explained that on account of reduction of staff strength to curtail operational costs coupled with time constraints there has been severe dearth of manpower for the insurers to even download the required documents and in that piquant situation the engagement of investigators like the Petitioner for the purpose of collecting manual copies of the required documents from the 5 22 n W.P. No. 102319concerned police stations continues to be inevitable and no exception could be taken to the same especially when such practice is still prevalent in the neighbouring States of Kerala and Karnataka. In this scenario it is implored that when there is no facilitating option for the investigators like the Petitioner to download the required documents from the CCTNS portal of the Police Department in the internet their availing of the machinery endowed under the beneficent provisions of the Right to Information Act 2005 for that purpose cannot be denied much less faulted by the police authorities.5.On careful consideration of the aforesaid rival contentions of the parties which has bearing on the rights and obligations of investigators insurers and police officers it would be appropriate to determine the following substantial questions of law of contemporary importance:and 160 of that enactment read with Rule 150 of the Central Motor Vehicles Rules 1989 that there is an entitlement as of right conferred on the insurer to be furnished with particulars required of the vehicle said to have been insured with it and of the accident in which it is reported to be involved by the concerned police authorities and that would necessarily also mean supplying copies of relevant documents in proof thereof. The Hon’ble Supreme Court of India in General Insurance Council vs State of Andhra Pradesh12 SCC 7 22 n W.P. No. 102319354] and the Division Bench of this Court in United India Insurance Co. Ltd. vs R.Venkatesanhave reiterated that the statutory obligations on the police authorities in terms of the said provisions is mandatory and has to be forthwith complied on occurrence of accident involving the motor vehicle without brooking any delay. This Court in Cholamandalam MS General Insurance Co. Ltd. vs Inspector of Police Cuddalorehas declared that that the hosting of the required documents in the CCTNS portal of the Police Department in the internet is the online version of carrying out that statutory obligation by the police authorities in the State of Tamil Nadu and it is precisely for that reason the requirement of furnishing manual copies of those documents to the Motor Accidents Claims Tribunals and insurers has been done away upon having meticulously verified that access to that facility has been made available to them and that aspect has also been expressly recorded in that decision. In other words it follows that there is definitely a functional system in place as on date in the digitalized mode for the police authorities to discharge their obligations to the insurers in terms of Sections 158(6) and 160 of the Motor Vehicles Act 1988.8 22 n W.P. No. 1023197.Having arrived at that conclusion the query arises as to whether despite the availability of the aforesaid mechanism is it not also permissible in law to obtain the required documents from the police authorities by invoking the provisions of the Right to Information Act 2005. It would suffice for this purpose to refer to the binding ruling of the Hon’ble Supreme Court of India in Chief Information Commissioner vs High Court of Gujaratof the Right to Information Act 2005 excludes disclosure of personal information whichhas no relationship to any public interest or activity orwould cause unwarranted invasion of the privacy of the individual. It is beyond cavil that the documents required by the insurer from the police authorities regarding the accident and the vehicle involved undoubtedly pertain to personal information either of the victim or the vehicle owner which would fall under that exception. 9 22 n W.P. No. 102319It may also be remembered here that a Nine Judge Bench of the Hon’ble Supreme Court of India in K.S.Puttaswamy vs Union of India10 SCC 1] has in no unmistakable terms recognized that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. Viewed from that perspective it must be held that when the right has been created for the insurer to obtain the required documents from the police authorities in a certain way under the Motor Vehicles Act 1988 such right must be exercised only in that way and that other modesfor seeking that relief stand necessarily forbidden. 8.The focus next turns to the locus standi of an investigator like the Petitioner in this case to correspond with police authorities and prosecute litigation relating to the documents required by the insurer. It is axiomatic that the relationship between an insurer and an investigator appointed by that insurer to collect documents and make enquiries regarding the accident involving the vehicle said to have been insured with that insurer is simply that of principal and agent. It is an elementary principle of law that an agent in his own personal capacity cannot enforce the rights of his principal as against third 10 22 n W.P. No. 102319persons and at best he can act or represent on behalf of his principal for that purpose depending upon the extent of his authority in that regard but that would not by any stretch of imagination entitle the agent to act independent of his disclosed principal. It cannot be forgotten here that the insurer collects funds from the public as vehicle owners in the form of insurance premia for meeting the claims for compensation arising out of motor accidents in pursuance of the requirement imposed by law. As a corollary the role of the insurer in defending third party claims arising out of motor accidents is that of a trustee of public funds and as such it is one of the essential duties required to be performed by the hierarchy of officials in the organizational structure of the insurer which responsibility ought not to be abdicated by ingenious methods of outsourcing those functions to freelancers appointed as investigators under the ruse of lack of manpower. It is no doubt true that in the absence of any prohibition the hiring of services of individuals on contract basis for carrying out specific tasks of a business entity due to exigencies would be permissible for supplementing the performance of work but that arrangement cannot lead to absurd consequences of supplanting the essential functions of the insurer itself. It is probably in that factual backdrop the right of access to the CCTNS portal has been thoughtfully restricted only to stakeholderson payment of prescribed fee and it cannot be carped that 11 22 n W.P. No. 102319there is no provision for other intermeddlers who are in no way connected with it for using that facility as it is likely to otherwise cause invasion of the privacy of the victims and the vehicle owners by misuse of their personal information. That being so it is really inconceivable as to how the Petitioner in this case could independently assert rights against the police authorities to produce documents required by the Sixth Respondent and further prosecute this Writ Petition in his personal capacity for such object. 9.Be that as it may for the sake of rendering substantive justice the legal remedy available to an insurer when documents required from police authorities in connection with an accident involving a vehicle said to be insured with it have not been furnished may be examined. The complaint that documents are not uploaded on time and there been inordinate delay in hosting them in the CCTNS portal of the Police Department in the internet has earlier been brought to the notice of this Court and in that regard it has been ordered by this Court in Cholamandam MS General Insurance Company Limited vs Director General of Police Tamil Naduas follows: “16. …. it is hereby directed that the State Crime Records Bureau Chennaiand all Police Stations shall carry out the 12 22 n W.P. No. 102319implementation of the Detailed Accident Reporton Digital Platform without any let or hindrance. It is hereby directed that the SCRB and all Police Stations shall strictly upload the name and mobile number of the victim or claimant representing the victim as soon as possible to enable the victims claimants to access the records. The SCRB Chennai and all Police Stations shall implement the DAR Regime in good order and condition by uploading all required documents relating to motor accidents claims for the benefit of all stakeholders in an expeditious manner without delay and ensure that the uploaded documents are verified for authenticity and are legible for use for the larger benefit of all the intended beneficiaries. It is hereby made clear that all Nodal Officers identified by the Office of the Director General of Police Chennai shall duly redress the grievances raised by all stakeholders within a reasonable timeline to carry out the purpose of the DAR regime.”In addition to and not in derogation of the aforesaid directions issued by this Court to the police authorities to set right that shortcoming it must be pointed out that an aggrieved insurer is also entitled to make an application to the Motor Accidents Claims Tribunal where the claim petition for compensation is 13 22 n W.P. No. 102319pending seeking direction to the concerned police authorities to furnish the required documents in consonance with the mandate of Sections 158(6) and 160 of the Motor Vehicles Act 1988 so as to enable that insurer to effectively contest the claim petition. Such power to the Motor Accidents Claims Tribunal flows from Section 169 of the Motor Vehicles Act 1988 read with Rule 1 of Order XVI of the Code of Civil Procedure 1908. Even otherwise as ruled by the Hon’ble Supreme Court of India in Chief Executive Officer & Vice Chairman Gujarat Maritime Board vs Haji Daud Haji Harun Abu11 SCC 23] it is well settled that where a substantive power is conferred upon a court or tribunal all incidental and ancillary powers necessary for an effective exercise of the substantive power have to be inferred following the dictum laid down in Khyerbari Tea Company Limited vs State of Assam 2 SCC 409] the Hon’ble Supreme Court of India has restated that proposition of law as follows: “18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words when any power is expressly granted by the statute there is impliedly included in the grant even without special mention every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.19. The reason for the ruleis quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Constructionthis Court held that the income tax appellate tribunal has implied powers to grant stay although no such power has been expressly granted to it by the Income Tax Act.”As such when an application for that purpose is made by an insurer in a pending Claim Petition for compensation it is incumbent upon that Motor Accidents Claims Tribunal to expeditiously consider the same and pass appropriate orders thereon in accordance with law. If found necessary the Motor Accidents Claims Tribunal may by recording reasons in writing also extend time to the insurer to file counter or defer the conduct of trial till the required document is actually produced on case to case basis having due regard to its material nature and relevancy bearing in mind the salutary intention that the ends of justice has to be secured for comprehensive and 16 22 n W.P. No. 102319meaningful adjudication of the matter ultimately. The orders passed by the Motor Accidents Claims Tribunal on such application made by an insurer would certainly be amenable to the superintending jurisdiction of this Court under Article 227 of the Constitution. When such efficacious mechanism exists in the statutory provisions it is hard to believe that the insurer is helpless when the required documents are not uploaded in time in the CCTNS portal of the Police Department in the internet as sought to be portrayed by the Petitioner in this case. 10.In the light of the foregoing discussion the questions raised are answered as under:(i)The provisions of the Right to Information Act 2005 cannot be invoked for obtaining documents from police authorities in connection with defending a claim for compensation before the Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act 1988.(ii)An investigator appointed by an insurer cannot in his own personal capacity correspond with public authorities much less prosecute litigation relating to furnishing of documents in connection with an accident involving a vehicle said to be insured with that insurer.17 22 n W.P. No. 102319(iii)When documents required by an insurer in terms of Sections 158(6) and 160 of the Motor Vehicles Act 1988 are not uploaded on time in the CCTNS portal of the Police Department in the internet in the State of Tamil Nadu the aggrieved insurer is entitled to make an application under Section 169 of the Motor Vehicles Act 1988 read with Rule 1 of Order XVI of the Code of Civil Procedure 1908 to the Motor Accidents Claims Tribunal where the claim petition for compensation is pending seeking direction to the concerned police authorities to furnish the required documents apart from seeking redressal of such grievance from the concerned Nodal Officer identified by the Office of the Director General of Police Tamil Nadu as directed by this Court in Cholamandam MS General Insurance Company Limited vs Director General of Police Tamil Naduand 160 of the Motor Vehicles Act 1988 or does not respond to the direction issued by the Nodal Officer for uploading such 18 22 n W.P. No. 102319document in the CCTNS portal of the Police Department he shall be liable for disciplinary action as per rules. Hence the Director General of Police Tamil Nadu is directed to issue a circular in this regard along with a copy of this order to all the concerned Police Officers in the State of Tamil Nadu requiring strict compliance of their statutory obligations mentioned supra and also send copies of the same to the insurance companies which have been registered with the CCTNS portal of the Police Department for availing the online facility for downloading required documents. The Registry of this Court after obtaining necessary orders from the Hon’ble Chief Justice shall also communicate copy of this order to all the Presiding Officers of the Motor Accidents Claims Tribunals in Tamil Nadu and Puducherry for apprising the legal position enunciated in this order.12.In the upshot the Writ Petition is dismissed with the aforesaid observations. No costs.01.06.2020vjtIndex: YesNote: Issue order copy by 04.06.202019 22 n W.P. No. 102319To1. The State Information Commissioner Tamil Nadu Information Commission No. 2 Sir Thiyagarayar Road Eldams Road Junction Theynampet Chennai 600 018.2. The Superintendent of Police 1st Appellate Authority Tiruppur District.3. The Public Information Officer Additional Superintendent of Police Police Head Office Tiruppur District.4. The Deputy Superintendent of Police Udumalpet Sub Division Tiruppur District.5. The Inspector of Police Thali Police Station Tiruppur District.6. The Branch Manager New India Assurance Company Ltd. Amman Complex Erode 11.Copy to1. The Director General of Police Tamil Nadu Kamarajar Salai Mylapore Chennai.2. The RegistrarMadras High Court Chennai.20 22 n W.P. No. 102319 21 22 n W.P. No. 102319P.D. AUDIKESAVALU J.vjtW.P. No. 102319Reserved on: 30.08.2019Pronounced on: 01.06.202022 22

Protection of life and liberty for all is mandatory under the law: High court of Rajasthan

Protection of life and liberty is a fundamental right under article 21 and available to all, therefore it is the duty of the state to protect the same. This judgment and final order were pronounced by the high court of Rajasthan, bench at Jaipur, S.B. criminal miscellaneous (petition) No. 3226/2021, Bhupendra Singh and Samarin khan vs. the state of Rajasthan, this petition has been filed under section 482 of Crpc (saving of the inherent power of the high court) for the protection of life and liberty of the petitioners. The session was held through a virtual platform due to covid-19. According to the case, the petitioners both are major (above 18) and unmarried and currently are in a live-in relationship as per their own free will i.e., cohabitation where they live together even though they are unmarried it is generally common in the western world but it is not considered illegal under the Indian law. As a documented evidence the petitioners have executed an affidavit regarding their free will to a live-in relationship attested by the notary public. Now the respondents whose names are not disclosed are accused of threatening and putting the life and liberty of the petitioners in danger. Therefore, the petitioners have filed this petition for the security and protection of their life and liberty. The court referred to a well-settled case as expounded by the hon ’able Supreme Court of India in Lata Singh Vs. State of UP [AIR 2006SC 2522], S. Khushboo Vs. Kanniammal [(2010) 5 SCC 600], Indra Sarma Vs. VKV Sarma [(2013) 15 SCC 755] and ShafinJahan Vs. Asokan KM & Ors. (2018) 16 SCC 368. The court held that society is not deemed to determine the manner in which an individual can live his or her life however only if the individual is a major. The decorum established by the society is not to be taken into account even though the relation between the individuals may seem immoral and unsocial according to the society. But it is not illegal under Indian law. Therefore, the life and personal liberty of the individuals has to be protected except according to the procedure that has been established by the law which is mandated in the constitution of India under Article 21(protection of life and liberty). The court also upheld that under section 29 of the Rajasthan police act,2007 it is the duty of each and every police officer to protect the life and the liberty of the citizens of this country. They are bound by law to not neglect the same.

on 03 07 2021 at 11:28:01 AM HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPURS.B. Criminal MiscellaneousNo. 3226 20211. Bhupendra Singh Gurjar S o Shri Ramprakash Gurjar Aged About 21 Years R o Balakhera Police Station NadotiTehsil Nadoti District KarauliPetitionersVersus1. State Of Rajasthan Through Pp2. Director General Of Police Rajasthan Jaipur3. Superintendent Of Police Karauli District Karauli: Mr. Vishnu Bohra through VCFor Respondent(s): Mr. Pankaj Agarwal PPHON BLE MR. JUSTICE MANOJ KUMAR VYAS[CRLMP 3226 2021]1.This Petition has been filed under Section 482 Cr.P.C. forprotection to life and personal liberty of the petitioners.2.Heard learned counsel for the petitioners through videoconferencing.3.It has been submitted on behalf of learned counsel for thepetitioners that both the petitioners are major unmarried andthey are living in a live in relationship as per their own free will.Petitioner No.2 has executed an affidavit regarding live inrelationship which is duly attested by Notary Public but theprivate respondents are threatening the petitioners and their lifeand liberty is in danger. Hence this petition for security andprotection of their life and liberty.4.Learned Public Prosecutor submits that appropriate directionsmay be issued.5.Heard. Perused the record available on file.6.It is well settled legal position as expounded by the Hon’bleSupreme Court of India in Lata Singh Vs. State of UPS. Khushboo Vs. Kanniammal5 SCC 600] Indra Sarma Vs. VKV Sarma15 SCC 755] and ShafinJahan Vs. Asokan KM & Ors.16 SCC 368] that the societycannot determine how individuals live their lives especially whenthey are major irrespective of the fact that the relation betweentwo major individuals may be termed as immoral and unsocial.Thus life and personal liberty of the individuals has to beprotected except according to procedure established by law asmandated by Article 21 of the Constitution of India. Further as per[CRLMP 3226 2021]Section 29 of Rajasthan Police Act 2007 every police officer isduty bound to protect the life and liberty of the citizens.7.Therefore in light of above legal position and having regardto the above submissions but without expressing any opinion onthe genuineness or correctness of the allegations made by thepetitioners this petition is disposed of with the direction thatlearned counsel for the petitioners shall send a copy of the petitionalong with its annexures to the Station House Officer of concernedPolice Station through e mail and on receipt of the same theStation House Officer concerned shall treat it as a complaint andafter due enquiry he shall take necessary preventive measuresand other steps to ensure safety and security of the petitioners inaccordance with law.8.However as a precautionary note it is made clear that thisorder shall not come in the way of civil criminal case if any andsuch case would take its own course as per law.(MANOJ KUMAR VYASJSunita Kanwar 38

Complaints of heinous and serious offences cannot be quashed even though the victim or the family of the victim have settled the dispute with the accused: Bombay High Court

The outcome of cases in which there is an involvement of any grave offence and wherein, the case is of such nature that it will have an impact upon the society, then it cannot be disposed of or allowed on the basis of amicable settlement between the victim/ victim’s family and the accused. The judgement was passed by Justice S.S Shinde and Justice N.R Borkar of the Bombay High Court in the case of Rishi Prabha Ranjitkumar Prasad Vs The State of Maharashtra and Ors. [ Cr. W.P. 4330 of 2019]. The Judgement has to be read along with the case of Ranjit Kumar Prasad Vs  The Senior Inspector of Police & Ors. [Cr. W.P 1476 of 2021]. In the instant case, a FIR was filed by Respondent No. 2 (First Informant) against the Petitioner on behalf of a ten year old girl who had been living with the Petitioner and her family as a house help. The victim in this case had informed the respondent about the brutalities inflicted on her by the Petitioner and her husband, on basis of which the FIR was filed under Sections 370 read with 34 of the Indian Penal Code and sections 75, 79 and 23 of the Juvenile Justice (Care and Protection of Children) Act, 2015., However, the Petitioner, the accused in the FIR had filed a petition seeking quashing of FIR and the complaint made by the Victim’s parents. Even though, initially the victim’s parents and Informant 1, filed the FIR against the Petition, however, later on both of them submitted an affidavit seeking cancellation of their complaint as the FIR was a result of mere misunderstanding. The Court vehemently opposed the prayer of the petitioners to allow the petition on the basis of alleged compromise between petitioners, parents of victim and the complainant. Relying upon the judgement made in the case of Gian Singh Versus State of Punjab and Anr [(2012) 10 SCC 303], the Court observed that, “In compromise between victim and the offender in relation to the offences under special statutes cannot provide for any basis for quashing criminal proceedings involving such offences and as the instant case involved provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, which is a Special Act”. Therefore, the Court decided to dismiss the petition seeking quashing of the complaint made against the petitioner.

on 10 06 2021 on 11 06 1 23WP 4330 19 & 1476 2021.docTHE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTIONCRIMINAL WRIT PETITION NO. 4330 OF 2019Rishi Prabha Ranjitkumar PrasadAdult Indian Inhabitant residing atHarikunj Society Building No. 2 C Wingh Flat No. 705 7th Floor Chembur Mumbai....PETITIONERVersus1.The State of Maharashtra[Through of E.O.W. Unit 7].2.Krishna Mishra residing at Vaibhav CooperativeHousing Society Anand Nagar Lal Dongar Chembur Mumbai.3.Mr. Samphul DasAge 33 years Occ Worker Resident of: Village Sainchak Ranjodha Dhuraiya Banka Bihar.4.Mrs. Sunitadevi Samphul DasAge 28 years Occ Worker Resident of: Village Sainchak Ranjodha Dhuraiya Banka Bihar....RESPONDENTSALONG WITHCRIMINAL WRIT PETITION NO. 1476 OF 2021Mr. Ranjit Kumar PrasadAge 43 years Occ ServiceR at Flat No. 707 7th FloorBuilding No. 2 Hari Kunj SocietyChembur Mumbai....PETITIONERVersus1.The Senior Inspector of PoliceChembur Police Station Bhagyawant Punde on 10 06 2021 on 11 06 2 23WP 4330 19 & 1476 2021.doc(C.R. No. 2718)2.Mr. Krishna Mishra Age 43 years Occ Cleanerresiding at Vaibhav CooperativeHousing Society Anand Nagar Lal Dongar Chembur Mumbai.3.Mr. Samphul DasAge 33 years Occ Worker Resident of: Village Sainchak Ranjodha Dhuraiya Banka Bihar.4.Mrs. Sunitadevi Samphul DasAge 28 years Occ Worker Resident of: Village Sainchak Ranjodha Dhuraiya Banka Bihar.5.The State of Maharashtra...RESPONDENTS...Mr. Vishal Kanade i by Mr. Rajendra J. Rathod for Petitioner in WPNo. 4330 2019.Mr. Vishal Kanade i by. Rizwan Merchant and Associates forPetitioner in W.P. 1476 2021.Mr. Sohel Ahmed a w. Mr. Ali Bubere i by. Kookada & Associatesfor Respondent No. 3 and 4. Mr. Aamir Koradia for Respondent No. 2 Original Complainant.Mr. Deepak Thakre PP a w. Mrs. S.D. Shinde APP for Respondent State. ... CORAM : S. S. SHINDE & N. R. BORKAR JJ. RESERVED ON 27th MAY 2021. PRONOUNCED ON 10th JUNE 2021.JUDGMENTAct 2015 be quashed and set aside. 3.Respondent No. 2works as a cleaner inthe housing society in which the petitioners are residing. The firstinformant lodged the FIR bearing C.R. No. 2718 on 6thSeptember 2019 with Chembur Police Station for the offencesBhagyawant Punde on 10 06 2021 on 11 06 4 23WP 4330 19 & 1476 2021.docpunishable under Sections 370 read with 34 of the Indian PenalCode and sections 75 79 and 23 of the Juvenile JusticeAct 2015on 28th February 2019and following order was passed: Bhagyawant Punde on 10 06 2021 on 11 06 9 23WP 4330 19 & 1476 2021.doc1In terms of orders dated 12th February 2019 learned A.P.P. has made the statement ofchild available for our perusal. The statementshows that child was not going to school and wasperforming household duties.2 The offence alleged are under Sections370 and 34 of the Indian Penal Code as alsoSections 75 79 and 23 of Juvenile JusticeAct 2015.3In the light of material available instatements we are not inclined to intervene inextra ordinary jurisdiction at this juncture. 4We however keep all contentions ofpetitioner open and with liberty to petitioner toraise the same at appropriate juncture beforetrial Court we dispose of present petition.Upon perusal of the aforesaid order it clearly appearsthat this Court declined to quash the FIR on merits. 11.Mr. Deepak Thakre Public Prosecutor appearing alongwith Mrs. S.D. Shinde for Respondent State vehemently opposedthe prayer in the petition for quashing the impugned FIR on thebasis of alleged amicable settlement. It is submitted that the offencecommitted by the petitioners is serious in nature and has greatimpact on society inasmuch as the petitioners have acted contraryto the provisions of the said Act and has given cruel treatment tovictim girl during her stay in the house of petitioners. ThePetitioners under the false pretext that victim girlwhich wasnot sufficient to meet her hunger and if she asked for moreBhagyawant Punde on 10 06 2021 on 11 06 12 23WP 4330 19 & 1476 2021.docchapatispetitioner would tell her that eat lessotherwise she will become fat. She further stated that petitionerused to woke up her early in the morning. She further stated thatshe used to do household work like cleaning the floor drying theclothes cleaning entire house to drop the daughter of petitioners tobus stop and pick up her and carry her school bag. She also statedin said statement that if she committed any mistake the petitioner Rishi Prabha Prasad used to beat her. She also stated these facts toone uncle who used to come to collect garbage of petitioner’s house who fed her a vadapav whenever she was hungry.15.It is true that the parents of victim and originalcomplainant have filed their respective affidavits stating that theydo not have objection for quashing the impugned FIR and chargesheet. It is also true that the parents of the victim girl appearedbefore us in chamber and stated that they do not have any objectionfor quashing the impugned FIR and chargesheet. However statements of victim cannot be ignored. At the relevant time her agewas 10 years. In addition to this there are statements of more than10 witnesses in tune with prosecution case. The concernedinvestigating officer has also collected CCTV footage andincriminating material and the statements of CCTV operator hasBhagyawant Punde on 10 06 2021 on 11 06 13 23WP 4330 19 & 1476 2021.docbeen recorded. In the copy of letter annexed to the charge sheet it isstated that some of the witnesses whose statements have beenrecorded by the investigating officer are residing in the samesociety. Therefore merely because parents of victim andcomplainant have filed the affidavits thereby joining the prayer ofpetitioners for quashing the impugned FIR on the basis of amicablesettlement the FIR and charge sheet cannot be quashed. Thestatements of victim so also statements of witnesses and otherincriminating material would be sufficient to proceed with the trial.The Public Prosecutor has vehemently opposed the prayer ofpetitioner for quashing the FIR on the basis of alleged amicablesettlement between parents of victim original complainant andpetitioners. Prima facie it appears that financial condition of parentsof victim is not good to pull on the needs of family and therefore under said circumstances said girl was given in the custody of thepetitioners at Delhi. It appears that victim accompanied with theRishi Prabha Ranjitkumar Prasad travelled from Delhi to Mumbai.16.The charge sheet is filed invoking Sections 75 79 and23 of the Juvenile JusticeAct 2015 and Section 370 read with 34 of Indian Penal Code. So far asthe Juvenile JusticeAct 2015 isconcerned the same has been brought into force to take care ofBhagyawant Punde on 10 06 2021 on 11 06 14 23WP 4330 19 & 1476 2021.docchildren alleged and found to be in conflict with law and children inneed of care and protection by catering to their basic needs throughproper care protection development treatment social re integration by adopting a child friendly approach keeping in viewthe best interest of children in mind. The provisions of said Act arehaving overriding effect and would prevail over provisions of anyother Act in case of conflict. Sub Section 4 of Section 1 of the saidAct reads as under: 1. Short title extent commencement andapplication(3) Notwithstanding anything contained in anyother law for the time being in force theprovisions of this Act shall apply to all mattersconcerning children in need of care andprotection and children in conflict with law includingof the said Act it is stated thus: 2. Definitions.(2) “child in need of care and protection” means achildwho is found without any home or settled placeBhagyawant Punde on 10 06 2021 on 11 06 15 23WP 4330 19 & 1476 2021.docof abode and without any ostensible means ofsubsistence of(ii) who is found working in contravention of labourlaws for the time being in force or is found begging or living on the street or(iii) who resides with a personand such person(a) has injured exploited abused or neglected thechild or has violated any other law for the timebeing in force means for the protection of child or(b) has threatened to kill injure exploit or abusethe child and there is reasonable likelihood of thethreat being carried out or(c) has killed abused neglected or exploited someother child or children and there is a reasonablelikelihood of the child in question being killed abused exploited or neglected by that person or18.It follows from the statement of objects and reasons ofthe said Act that this special legislation has brought into force toensure proper care protection development treatment social re integration by adopting a child friendly approach keeping in viewthe best interest of children in mind. The provisions of this Act shallapply to all matters concerning child in need and the child inconflict with law. The provisions of this Act have overriding effect visa vis the provisions in other Acts in relation to matters concerningof child in need and care and protection and a child in conflict withlaw.Bhagyawant Punde on 10 06 2021 on 11 06 16 23WP 4330 19 & 1476 2021.doc19.In the facts of the present case the Respondent State hasinvoked Sections 23 75 and 79 of the said Act. Section 75 and 79 ofthe said Act which reads thus: 75. Punishment for cruelty to child. Whoever having the actual charge of or control over a child assaults abandons abuses exposes or wilfullyneglects the child or causes or procures the child tobe assaulted abandoned abuses exposed orneglected in a manner likely to cause such childunnecessary mental or physical suffering shall bepunishable with imprisonment from a term whichmay extent to three years or with find of one lakhrupees or with both:Provided that in case it is found that suchabandonment of the child by the biological parentsis due to circumstances beyond their control itshall be presumed that such abandonment is notwilful and the penal provisions of this section shallnot apply in such cases:Provided further that if such offence iscommitted by any person employed by or managingan organisation which is entrusted with the careand protection of the child he shall be punishedwith rigorous imprisonment which may extend upto five years and fine which may extend up to fivelakhs rupees. Provided also that on account of the aforesaidcruelty if the child is physically incapacitated ordevelops a mental illness or is rendered mentallyunfit to perform regular task or has risk to life orlimb such person shall be punishable withrigorous imprisonment not less than three yearsbut which may be extended up to ten years andshall also be liable to fine of five lakhs rupees. 79. Exploitation of a child employee. Notwithstanding anything contained in any law forthe time being in force whoever ostensibly engagesBhagyawant Punde on 10 06 2021 on 11 06 17 23WP 4330 19 & 1476 2021.doca child and keeps him in bondage for the purpose ofemployment or withholds his earnings or uses suchearning for his own purposes shall be punishablewith rigorous imprisonment for a term which mayextend to five years and shall also be liable to fine ofone lakh rupees.20.The Respondent State has also invoked Section 370 ofIPC which reads thus:1[370. Trafficking of person. Whoever for thepurpose of exploitation recruits transportsharbours transfer orreceives a person orpersons by First using threats orSecondly using force or any other form of coercion orThirdly by abduction orFourthly by practising fraud or deception orFifthly by abuse of power orSixthly by inducement including the giving or receiving of payments or benefits in order to achieve the consent of any person having control over the person recruited transported harboured transferred or received commits the offence of trafficking. 21.In the context of subject matter of present petitions itwould be gainful to refer herein below some of the important articlesof the ‘The United Nations Convention on the Rights of the Child.’ Article 2 1. States Parties shall respect and ensure therights set forth in the present Convention to eachBhagyawant Punde on 10 06 2021 on 11 06 18 23WP 4330 19 & 1476 2021.docchild within their jurisdiction withoutdiscrimination of any kind irrespective of thechild s or his or her parent s or legal guardian srace colour sex language religion political orother opinion national ethnic or social origin property disability birth or other status.2. States Parties shall take all appropriatemeasures to ensure that the child is protectedagainst all forms of discrimination or punishmenton the basis of the status activities expressedopinions or beliefs of the child s parents legalguardians or family members.Article 5 States Parties shall respect the responsibilities rights and duties of parents or where applicable the members of the extended family orcommunity as provided for by local custom legalguardians or other persons legally responsible forthe child to provide in a manner consistent withthe evolving capacities of the child appropriatedirection and guidance in the exercise by thechild of the rights recognized in the presentConvention. Article 9 1. States Parties shall ensure that a child shallnot be separated from his or her parents againsttheir will except when competent authoritiessubject to judicial review determine inaccordance with applicable law and procedures that such separation is necessary for the bestinterests of the child. Such determination may benecessary in a particular case such as oneinvolving abuse or neglect of the child by theparents or one where the parents are livingseparately and a decision must be made as to thechild s place of residence.Article 27 Bhagyawant Punde on 10 06 2021 on 11 06 19 23WP 4330 19 & 1476 2021.doc1. States Parties recognize the right of every childto a standard of living adequate for the child sphysical mental spiritual moral and socialdevelopment.2. The parent(s) or others responsible for thechild have the primary responsibility to secure within their abilities and financial capacities theconditions of living necessary for the child sdevelopment.Article 31 1. States Parties recognize the right of the child torest and leisure to engage in play andrecreational activities appropriate to the age ofthe child and to participate freely in cultural lifeand the arts.2. States Parties shall respect and promote theright of the child to participate fully in culturaland artistic life and shall encourage the provisionof appropriate and equal opportunities forcultural artistic recreational and leisure activity.Article 32 1. States Parties recognize the right of the child tobe protected from economic exploitation and fromperforming any work that is likely to behazardous or to interfere with the child seducation or to be harmful to the child s healthor physical mental spiritual moral or socialdevelopment.Article 36 States Parties shall protect the child against allother forms of exploitation prejudicial to anyaspects of the child s welfare. Article 37 Bhagyawant Punde on 10 06 2021 on 11 06 20 23WP 4330 19 & 1476 2021.doc(c) Every child deprived of liberty shall be treatedwith humanity and respect for the inherentdignity of the human person and in a mannerwhich takes into account the needs of persons ofhis or her age. In particular every child deprivedof liberty shall be separated from adults unless itis considered in the child s best interest not to doso and shall have the right to maintain contactwith his or her family through correspondenceand visits save in exceptional circumstances 22.In the light of discussion in foregoing paragraphs anirresistible conclusion is that the impugned FIR and charge sheetcannot be quashed as prayed by the petitioners on the basis ofalleged amicable settlement between the parents of victim andcomplainant when such amicable settlement has been vehementlyopposed by the Respondent State. Even if the affidavits ofcomplainant and parents of victim are excluded from theconsideration there is sufficient material including statements ofvictim and other witnesses coupled with incriminating materialincluding CCTV footage so as to proceed with the trial. It prima facie appears that due to financial crunch facedby parents of victim and as they are having 5 children they decidedto give custody of victim to Rishi Prabha Ranjitkumar Prasad whobrought the victim from Delhi to Mumbai.Bhagyawant Punde on 10 06 2021 on 11 06 21 23WP 4330 19 & 1476 2021.doc23.The Hon’ble Supreme Court in the case of Gian SinghVersus State of Punjab and Another 1 in paragraph 61 observed thatin compromise between victim and the offender in relation to theoffences under special statutes like the Prevention of Corruption Actor the offences committed by public servants while working in thatcapacity etc cannot provide for any basis for quashing criminalproceedings involving such offences. In the present case thepetitioners are being prosecuted under the provisions of theJuvenile JusticeAct 2015 whichis a Special Act.24. The case in hand stands on different footings vis a visroutine criminal cases predominatingly having civil flavour andwhich are personal in nature. Importantly an outcome of thepresent case will have impact upon the society. The offencescommitted by the petitioners cannot be said to be personal innature.25.The Hon’ble Supreme Court in the case of State of M.P.Versus Laxmi Narayan 2 has observed that in the exercise of thepower under Section 482 and while dealing with a plea that thedispute has been settled the High Court must have due regard to1(2012) 10 SCC 3032(2019) 5 SCC 688Bhagyawant Punde on 10 06 2021 on 11 06 22 23WP 4330 19 & 1476 2021.docthe nature and gravity of the offence. Heinous and serious offencesinvolving mental depravity or offences such as murder rape anddacoity cannot appropriately be quashed though the victim or thefamily of the victim have settled the dispute. Such offences are trulyspeaking not private in nature but have a serious impact uponsociety. The decision to continue with the trial in such cases isfounded on the overriding element of public interest in punishingpersons for serious offences.26.Upon careful perusal of the aforesaid guidelines it isabundantly clear that the outcome of cases which have impact uponthe society cannot be disposed of or allowed on the basis ofamicable settlement. The Public Prosecutor has vehemently opposedthe prayer of the petitioners to allow the petition on the basis ofalleged compromise between petitioners parents of victim and thecomplainant.27.In that view of the matter we are not persuaded toquash the impugned FIR and charge sheet on the basis of allegedamicable settlement between the petitioners parents of victim andcomplainant. Hence writ petitions stand rejected.Bhagyawant Punde on 10 06 2021 on 11 06 23 23WP 4330 19 & 1476 2021.doc28.The observations made herein above are prima facie innature and confined to the adjudication of the present writ petitionsonly. The trial court shall not get influenced by the saidobservations during the course of trial.( N.R. BORKAR J.)(S. S. SHINDE J.)Bhagyawant Punde

Writs for enforcement of rights under Article 32 and 226 cannot be done so after an unreasonable delay in filing the petition: Delhi High Court

In light of matter pivoting grounds of promotion, payment of residue wages in regard to a prospective promotion shall not be filed after an unreasonable delay. The Delhi High Court bench comprising of Manmohan J. and Asha Menon J. opined in the matter of Anupam Kumar v Director-General, Border Security Force & Anr. [W.P. (C) 4438/2021] that though limitation period is not attracted for filing of writ petitions, yet there should be no unreasonable delay for the same. The unreasonable delay here is construed to be a gap of thirteen years. The petitioner states that in 2016, six batches of the BSF, including the batch to which the petitioner belongs, were simultaneously promoted from the level of Deputy Commandant to “Second-in-Commands” vide Office Order dated 21st October, 2016. He further states that the Petitioner was however not promoted due to his low ACR grading for the year 2010-2011. He submits that this denial of promotion was not only arbitrary and illegal but has also seriously affected the seniority position of the Petitioner bringing him 350 ranks below his batchmates. He further submits that the loss of seniority was coupled with a pay scale that was much lower than what was paid to his counterparts. The bench however notes that the difference in paygrade is due to the petitioner’s own shortcoming and observes that, “this Court finds that the petitioner, in essence, challenges his APAR Grade for the year 2010-11 as according to him, it is due to his adverse APAR grading that Non-Functional Grade Selection has been denied to him” The court further places reliance on the Supreme Court judgment Chairman/Managing Director, U.P. Power Corporation Ltd. & Ors. Vs. Ram Gopal; (2020 SCC OnLine SC 101) wherein it was held that “Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution of India, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions”

Suppl. 20 W.P.4438 2021 & C.M.No.13544 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI ANUPAM KUMAR Mr.Manish Gupta Advocate. .....Petitioner DIRECTOR GENERAL BORDER SECURITY FORCE & ANR Through: Ms.Divyya Kapur Advocate. Mr. Ruchir Mishra Advocate with Mr. Gunjan Jaura Mr. Mukesh Kumar Tiwari and Mr. Arman Pratap Singh Advocates. Date of Decision: 9th April 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MS. JUSTICE ASHA MENON JUDGMENT MANMOHAN J4438 2021 Commands" as being effective from 21st October 2016 and grant all the consequential benefits such as back wages w.e.f from the same date. Learned Counsel for the Petitioner states that in 2016 six Batches of the BSF including the Batch to which the Petitioner belongs were simultaneously promoted from the level of Deputy Commandant to Second in Commands" vide Office Order dated 21st October 2016. He further states that the Petitioner was however not promoted due to his low ACR grading for the year 2010 2011. He submits that this denial of promotion was not only arbitrary and illegal but has also seriously affected the seniority position of the Petitioner bringing him 350 ranks below his batchmates. He further submits that the loss of seniority was coupled with a pay scale which was much lower than what was paid to his counterparts. Learned Counsel for the Petitioner submits that the Petitioner was subsequently promoted from the post of Deputy Commandant to the rank of "Second in Commandant” BSF vide Promotion Order dated 26th July 2018 w.e.f. from 07th November 2017 i.e. after much delay. Learned Counsel for the Petitioner states that an Office Order dated 26th December 2019 was issued by the Commandantgranting Non Functional Selection Grade to officers of Group A Executive Cadre of BSF wherein the pay scale was revised in Level 13 of pay matrix for the year 2017 and 20184438 2021 filed a detailed representation dated 28th June 2020 to the DG BSF pointing out that the low grading received by him in the year 2010 11 was because of the biased view of the then I.O. as the Petitioner refused to comply with his illegal orders. He further states that the petitioner has not received any reply to the said representation. He also states that a Coordinate Division Bench of this Court in Vidya Shankar Tiwari Vs. Union of India & Ors. W.P.(C) No.10486 2017 has granted relief to a similarly placed officer. Having heard learned counsel for the petitioner and having perused the paper book this Court finds that the petitioner in essence challenges his APAR Grade for the year 2010 11 as according to him it is due to his adverse APAR grading that Non Functional Grade Selection has been denied to him. At this stage learned counsel for the petitioner states that the petitioner in the present writ petition does not only challenge his APAR grade for the year 2010 11. However this contention of the petitioner is belied from the petitioner’s own representation dated 28th June 2020 which is reproduced hereinbelow in its entirety: Dated 28th June 2020 To THE DIRECTOR GENERAL BORDER SECURITY FORCE 10 CGO COMPLEX LODI ROAD NEW DELHI SUB: REPRESENTATION AGAINST ACR APR OF YEAR 2010 2011 FOR CONSIDERATION OF NFSG Sir W.P.4438 2021 In ref to subject cited above. I the undersigned would like to lay following lines for your consideration and favourable action. That my ACR grading of year 2010 2011 was ruined by IO on biased view taken by him. My representation on the same was also not taken into right spirit and same were rejected citing the reason as devoid of merit. In this case the Comdt has made my APR adverse. My APR of year 2010 2011 was given adverse by IO Unit Comdt due to non compliance of illegal order dated 30 March 2010. It is submitted that the Calcutta High Court in its interim order had said that „Ordering Dy Comdt to take charge of a service Coy. Comdt as prima facia an unlawful order and its non compliance of illegal order will not invite any adverse to the officer. It is pertinent to point out that ACR written by same IO and same RO in year 2010 2013 and 2011 12 is self contradicting in assessment of innate qualities. The traits and quality which are inherent and cannot change is graded vindictively in year 2010 11 apparent with the comparison with 11 12. 2010 11 2010 11 2011 12 2011 12 Accomplishment of planned work Quality of output and effectiveness Thoroughness and efficiency work exceptional work Attitude to work responsibility discipline qualities W.P.4438 2021 10 Capacity to work in team spirit Capacity to work in time limit Knowledge of rules and regulations Strategic planning Decision making ability ability Ability to develop Interest in welfare apprising ability My adverse APR led to non grant of NFSG to me whereas my entire batch has got it. Further I submit that the 93 BN BSF was deployed under dist Malkangiri for Anti naxal operation under police. The SP Malkangiri Mr. Anirudh Kumar Singh as a police head had seen my work and leadership and special efforts on the ground and appreciated in his letter dated Do185 17.04.2010. I also attached the copy of the letter for your consideration4438 2021 101 has held as under: The Supreme Court in Chairman Managing Director U.P. Power Corporation Ltd. & Ors. Vs. Ram Gopal 2020 SCC OnLine SC “16. Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution of India nevertheless such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions and writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect those who have slept over wrongs and allowed illegalities to fester. Fencesitters cannot be allowed to barge into courts and cry for their rights at their convenience and vigilant citizens ought not to be treated alike with mere opportunists. On multiple occasions it has been restated that there are implicit limitations of time within which writ remedies can be enforced. In SS Balu v. State of Kerala this Court observed thus: “17. It is also well settled principle of law that “delay defeats equity”. …It is now a trite law that where the writ petitioner approaches the High Court after a long delay reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment.” 17. Similarly in Vijay Kumar Kaul v. Union of India this Court while considering the claim of candidates who despite being higher in merit exercised their right to parity much after those who were though lower in merit but were diligently agitating their rights this Court observed that: “27. …It becomes an obligation consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that W.P.4438 2021 at one point of time equity that existed in W.P.(C) 2766 2021 Page 5 of 5 favour of one melts into total insignificance and paves the path of extinction with the passage of time.” 11. Accordingly this Court is of the view that the petitioner cannot challenge his APAR grading after a gap of more than ten years. 12. As far as the Division Bench judgment in Vidya Shankar Tiwari supra) relied upon by learned counsel for the petitioner is concerned this Court finds that the same does not constitute a binding precedent as the issue of delay and laches was neither urged nor discussed in the said judgment. The Supreme Court in MCD Vs. Gurnam Kaur . 1 SCC 101 has held that precedents sub silentio and without argument are of no moment. Accordingly the said judgment is not a precedent on the 13. Consequently the present writ petition is barred by delay and issue of delay and laches. application is dismissed. In view of the above the present writ petition along with pending 15. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail. APRIL 09 2021 W.P.4438 2021 MANMOHAN J ASHA MENON J

The only object of keeping the accused person in detention during the trial is to secure the attendance of the accused: High Court of Uttarakhand.

Refusal of bail is a restriction on the personal liberty of the individual, guaranteed under Article 21 of the Constitution of India. The object of keeping the accused person in detention during the trial is not punishment, but to secure the attendance of the accused. A single Judge Bench comprising Hon’ble Justice Alok Kumar Verma, in the matter Ajay Vs. State of Uttarakhand (FIRST BAIL APPLICATION NO. 147 of 2020), dealt with an issue where the petitioner has filed a bail application filed under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail in connection for the offence under Sections 366-A, 376 of IPC and Section ¾ of the Protection of Children from Sexual Offences Act, 2012. In the present case, the informant filed an FIR against the present applicant alleging that the applicant enticed his daughter, aged about 13 years, and took her with him. Upon search and investigation, the victim was recovered from the custody of the applicant. The counsel for the applicant submitted that the victim had stated before the learned trial court that she was not enticed by the applicant and she herself went with the applicant, as because she was in love with him and got married to the applicant. The counsel also submitted that the date of birth of the victim was mentioned in the school record without any basis, whereas according to the Aadhar Card of the victim, her date of birth is 15.01.2001. Hence the victim was 20 years and major when she went with the applicant. The counsel for the appearing for the state opposed the bail application but contended that the victim did not support the prosecution case and also the applicant had no criminal history. The court observed that – “Refusal of bail is a restriction on the personal liberty of the individual, guaranteed under Article 21 of the Constitution of India. The object of keeping the accused person in detention during the trial is not punishment. The main purpose is to secure the attendance of the accused.” Thereby the court held that there was no reason to keep the applicant in custody and hence allowed the bail application.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA FIRST BAIL APPLICATION NO. 1420 24nd JULY 2021 …Applicant Between: Ajay and State of Uttarakhand. …Respondent Counsel for the Applicant : Mr. Mani Kumar. Counsel for the Respondent : Mr. Dinesh Chauhan learned Brief Holder for the State Hon’ble Alok Kumar Verma J. This bail application has been filed under Section 439 of the Code of Criminal Procedure 1973 for grant of regular bail in connection with FIR No.266 of 2019 registered with Police Station Gadarpur District Udham Singh Nagar for the offence under Sections 366 A 376 of IPC and Section ¾ of the Protection of Children from Sexual Offences Act 2012. On 08.011.2019 the informant lodged an FIR against the present applicant alleging therein that on 05.11.2019 at around 9:15 a.m. the present applicant enticed his daughter aged about 13 years and took her with him. She was searched. During the investigation on 11.11.2019 the victim was recovered from the custody of the present applicant. 2 Heard Mr. Mani Kumar the learned counsel for the applicant and Mr. Dinesh Chauhan the learned Brief Holder for the State through video conferencing. Mr. Mani Kumar the learned counsel for the applicant submitted that during the trial the alleged victim did not support the prosecution case. On 18.12.2020 the victim stated in her examination in chief that her age is 20 years and she herself went with the applicant and at that time she was major. According to the evidence of her mother and father the date of birth of the victim was mentioned in the school record without any basis whereas according to the Aadhar Card of the victim her date of birth is 15.01.2001. The applicant has filed a copy of the said Aadhar Card. Mr. Mani Kumar the learned counsel for the applicant further submitted that the victim has stated before the learned trial court that the applicant never enticed her. She was in love with him and she got married to the applicant. The applicant has no criminal history. He is a permanent resident of District Udham Singh Nagar and he is in custody since 11.11.2019. Mr. Dinesh Chauhan the learned counsel appearing for the State opposed the bail application. However he fairly conceded that the victim did not support the prosecution case and the applicant has no criminal history. Bail is the rule and the committal to jail is an exception. Refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution of India. The object of keeping the accused person in detention during the trial is not punishment. The 3 main purpose is manifestly to secure the attendance of the accused. Having considered the submissions of learned counsel for both the parties and in the facts and circumstances of the case there is no reason to keep the applicant behind the bars for an indefinite period therefore without expressing any opinion as to the merits of the case this Court is of the view that the applicant deserves bail at this stage. The bail application is allowed. Let the applicant Ajay be released on bail on his executing a personal bond and furnishing two reliable sureties each in the like amount to the satisfaction of the court concerned. Dated: 24th July 2021 Pant ALOK KUMAR VERMA J.

Jurisdiction of an Arbitral Tribunal will be decided by the tribunal itself : Delhi High Court

Section 16 of the Arbitration and Conciliation Act, 1996 empowers the arbitral tribunal to rule on its own jurisdiction. The High Court bench consisting of J. Vibhu Bakhru explained upon the doctrine of Kompetenz – Kompetenz arbitrations in the case of Medisprouts India Pvt. Limited CIN v. M/s Silver Maple healthcare Services (P) Ltd. [O.M.P. (T) (Comm.) 88/2020]. The dispute between the parties arose in connection with a Sub-Franchise Agreement entered into by both the parties wherein the respondent had granted the petitioner a non-transferable and non-assignable licence to use the trademarks (DHI trademarks) for specified products for hair transplantation  services in Kerala. The petitioners claimed that they terminated the said agreement citing various reasons including lapses in health and safety standards. The respondents invoked the Arbitration Agreement contained in the said agreement for adjudicating the disputes that had arisen. An Arbitral Tribunal was constituted and the respondent filed a Statement of Claim claiming a sum of Rs. 6,31,81,795/- along with interest. The petitioners filed their response and made a counter claim of Rs. 19,97,75,452.72/- along with interest. The petitioners challenged the registration of an FIR filed by the respondents and thereafter, filed an application before the Tribunal praying the termination of proceedings under Section 32(2)(c) of the Act which was subsequently dismissed. The petitioners claimed that the respondents had entered into the Sub-Franchise Agreement by falsely representing to it that they were a franchise of DHI trademarks under the Master Franchise Agreement. The petitioners further claimed that the disputes had becomes un-arbitral due to registration of FIRs and consequent investigations. The petitioners claimed that disputes relating to Intellectual Property Rights were no arbitral.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Judgment: 08th January 2021 O.M.P.(COMM.) 88 2020 MEDISPROUTS INDIA PVT LIMITED CIN U93020KL2012PTC030297 A COMPANY REGISTERED UNDER THE COMPANIES ACT & ORS. Through Mr Shinu J. Pillai Advocate. ..... Petitioners M S SILVER MAPLE HEALTHCARE SERVICESLTD CIN U85100DL2010PTC200694 A COMPANY INCORPORATED UNDER COMPANIES ACT ..... Respondent HON BLE MR. JUSTICE VIBHU BAKHRU Hearing held through videoconferencing] VIBHU BAKHRU J.The petitioners have filed the present petition under Section 32(2)(c) of the Arbitration and Conciliation Act 1996inter alia impugning an order dated 27.11.2020 whereby an application filed by the petitioners seeking termination of arbitral proceedings in terms of Section 32(2)(c) of the Act was rejected along with costs of ₹20 000 . The petitioners also pray that orders be passed O.M.P.(COMM.) 88 2020 terminating the arbitral proceedings. The disputes between the parties arose in connection with a Sub Franchise Agreement dated 24.01.2012 entered into between petitioner no. 1 and the respondent. In terms of the said agreement the respondent had granted petitioner no. 1 non transferable and non assignable license to use the trademarks for specified products and for hair transplantation services in the State of Petitioner no. 1 is a company and petitioner nos. 2 and 3 are its The petitioners claim that petitioner no. 1 terminated the said Sub Franchise Agreement vide a letter dated 06.03.2019. The respondent claims that it terminated the Sub Franchise Agreement by a letter dated 16.05.2019 citing various reasons including lapses in health and safety standards. By a letter dated 04.06.2019 the respondent invoked the Arbitration Agreement contained in the said Sub Franchise Agreement for adjudicating the disputes that had arisen between the parties. The respondent also suggested names of two former judges of this Court to be appointed as Arbitrators. The said proposal was declined by the petitioners but subsequently the parties constituted the Arbitral Tribunal by the petitioner no.1 nominating Mr. MKS Menon Advocate and the respondent nominating Mr. Amit Bansal Advocate as arbitrators. Justice Indermeet Kochhar was appointed as the O.M.P.(COMM.) 88 2020 presiding arbitrator. The respondent filed a Statement of Claim claiming a sum aggregating ₹6 31 81 795 along with interest from the petitioners. The petitioners filed their response and petitioner nos. 1 and 2 made a counter claim aggregating ₹19 97 75 452.72 along with interest. The petitioners state that the respondent filed a criminal complaint before the Safdarjung Police Station resulting in registration of FIR No. 340 19. The petitioners have challenged the registration of the said FIR in Crl. MC No. 5120 which is pending before this Court. The petitioners also filed a criminal complaint which led to the registration of FIR No. 107 2020 with the Ernakulam Town South Police Station Kerala. Thereafter on 06.11.2020 the petitioners filed an application before the Arbitral Tribunal praying that the arbitral proceedings be terminated under Section 32(2)(c) of the Act. The said application was dismissed by an impugned order dated 27.11.2020. The petitioners claim that the respondent had entered into the Sub Franchise Agreement by falsely representing to it that the respondent was a franchise of DHI trademarks under the Master Franchise Agreement dated 26.05.2010. The petitioners claim that the CEO of the respondent company had falsely represented that the respondent had sufficient authority to deal with the brand ‗DHI‘ which was owned by entities based in Cyprus. The petitioners further claim that the disputes have become un arbitrable in view of O.M.P.(COMM.) 88 2020 subsequent developments registration of FIRs and consequent investigations. The petitioners claim that disputes relating to Intellectual Property Rights are not arbitrable. It is further stated that both the parties petitioner no.1 as well as the respondent had also filed criminal complaints against each other and consequentially FIRs have also been registered on the basis of the said complaints. 11. The learned counsel appearing for the petitioner submits that since the respondent did not have any right to sub license or deal with the brand ‗DHI‘ the Sub Franchise Agreement was a consequence of fraud perpetuated on it. He submits that in view of the above the disputes raised by the respondents are not arbitrable and therefore the Arbitral Tribunal has no mandate to deal with the said disputes. He submits that in the given circumstances the Arbitral Tribunal was obliged to terminate the arbitral proceedings under Section 32(2)(c) of the Act. He referred to the recent decision of the Supreme Court in Vidya Drolia v. Durga Trading Corporation: C.A. No. 24019 decided on 14.12.2020. He also referred to the decision of the Supreme Court in Lalitkumar V. Sanghavi Thr LRs & Anr. v. Dharamdas V. Sanghavi & Ors.:7 SCC 255 in support of his the disputes regarding termination of arbitral proceedings under Section 32(2)(c) of the Act could be agitated by filing a petition under Section 14 of the Act. It is not necessary for this Court to examine the contention whether the disputes raised before the Arbitral Tribunal are arbitrable O.M.P.(COMM.) 88 2020 or not. The question whether the disputes are arbitrable relate to the jurisdiction of the Arbitral Tribunal. The doctrine of Kompetenz Kompetenz is applicable to arbitral proceedings and the arbitral tribunal has the jurisdiction to rule as to the extent of its own competence on the issues before it. It is relevant to refer to Section 16 of the Act which is set out ―16. Competence of arbitral tribunal to rule on its jurisdiction.— The arbitral tribunal may rule on its own jurisdiction including ruling on any objections with respect to the existence or validity of the arbitration agreement and for that purpose — a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract and b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. 2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence however a party shall not be precluded from raising such a plea merely because that he has appointed or participated in the appointment of an 3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. 4) The arbitral tribunal may in either of the cases referred to in sub section or sub section admit a later plea if it considers the delay justified. 5) The arbitral tribunal shall decide on a plea referred to in sub section or sub section and where the arbitral tribunal takes a decision rejecting the plea O.M.P.(COMM.) 88 2020 continue with the arbitral proceedings and make an arbitral award. 6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with Section 34.‖ It is apparent from the above that any challenge to the jurisdiction of an Arbitral Tribunal necessarily has to be decided by the Arbitral Tribunal itself in the first instance. Thus the question whether the disputes are arbitrable or not cannot be made the subject matter of proceedings under Section 14 of the Act. 15. Plainly if the Arbitral Tribunal agrees with the contention that the disputes are not arbitrable arbitral proceedings would require to be terminated and the aggrieved party would have its remedies against the said order decision. However if the Arbitral Tribunal rejects the contention that it does not have jurisdiction to decide the claims the Arbitral Tribunal would proceed to render an award. In the given circumstances the Arbitral Tribunal may adjudicate the dispute regarding the question of jurisdiction and such decision may be construed as an award 2 SCC 534). In such circumstances the aggrieved party would have a right to apply for setting aside of the said award provided that the grounds as set out under Section 34 of the Act are made out. In either event recourse to Section 14 of the Act is not available to challenge the decision of the Arbitral Tribunal regarding any question of arbitrability jurisdiction O.M.P.(COMM.) 88 2020 unless the issue relates to the ineligibility of an arbitrator to act such as in terms of Section 12(5) of the Act. 16. The decision in the case of Vidya Drolia is of little assistance to the petitioner. In that case the Supreme Court has authoritatively held as under: ―69. Issue of non arbitrability can be raised at three stages. First before the court on an application for reference under Section 11 or for stay of pending judicial proceedings and reference under Section 8 of the Arbitration Act secondly before the arbitral tribunal during the course of the arbitration proceedings or thirdly before the court at the stage of the challenge to the award or its enforcement.‖ It is thus clear that the question whether the disputes are arbitrable is to be examined by the Arbitral Tribunal in the first instance and by the court while examining the award at the stage of challenge under Section 34 of the Act. In Vidya Droliathe Supreme Court also explained that the issue of non arbitrability is a facet of the jurisdiction of the Arbitral Tribunal and can be examined by the Arbitral Tribunal under Section 16(1) of the Act. And the remedy of the unsuccessful party raising the objection to the issue of arbitrability is the recourse under Section 34 of the Act. The relevant extract of the said decision is set out below: O.M.P.(COMM.) 88 2020 ―119. Section 16(1) of the Arbitration Act accepts and empowers the arbitral tribunal to rule on its own jurisdiction including a ruling on the objections with respect to all aspects of non arbitrability including validity of the arbitration agreement. A party opposing arbitration as per sub section should raise the objection to jurisdiction of the tribunal before the arbitral tribunal not later than the submission of statement of defence. However the appointment procedure or appointing an arbitrator would not preclude and prejudice any party from raising an objection to the jurisdiction. Obviously the intent is to curtail delay and expedite appointment of the arbitral tribunal. The clause also indirectly accepts that appointment of an arbitrator is different from the issue and question of jurisdiction and non arbitrability. As per sub section any objection that the arbitral tribunal is exceeding the scope of its authority should be raised as soon as the matter arises. However the arbitral tribunal as per sub sectionis empowered to admit a plea regarding lack of jurisdiction beyond the periods specified in sub section and if it considers that the delay is justified. As per the mandate of sub sectionwhen objections to the jurisdiction under sub sections and are rejected the arbitral tribunal can continue with arbitration award. A party aggrieved is at liberty to file an application for setting aside such arbitral award under Section 34 of the Arbitration Act. Sub sectionto Section 8 in specific terms permits an arbitral tribunal to continue with the arbitration the proceedings and pass O.M.P.(COMM.) 88 2020 proceeding and make an award even when an application under sub section to Section 8 is pending consideration of the court forum. Therefore pendency of the judicial proceedings even before the court is not by itself a bar for the arbitral tribunal to proceed and make an award. Whether the court should stay arbitral proceedings or appropriate deference by the arbitral tribunal are distinctly different aspects and not for us to elaborate in the present reference. the award deals with 120. Section 34 of the Act is applicable at the third stage post the award when an application is filed for setting aside the award. Under Section 34 an award can be set aside if the arbitration agreement is not valid as per law to which the party is subject the disputes not contemplated by or not falling within the submission to arbitration or contains a decision on the matter beyond the scope of submission to arbitration and iii) when the subject matter of the dispute is not capable of settlement by arbitration under the law for the time being in force. Thus the competence competence principle in its negative effect leaves the door open for the parties to challenge the findings of the arbitral tribunal on the three issues. The negative effect does not provide absolute authority but only a priority to the arbitral tribunal to rule the jurisdiction on the three issues. The courts have a ‗second look‘ on the three aspects under Section 34 of the Arbitration Act.‖ 19. At this stage it is also relevant to refer to Section 14 of the Act and the same is set out below: O.M.P.(COMM.) 88 2020 ―14. Failure or impossibility to act.—(1) 29[The mandate of an arbitrator shall terminate and he shall be substituted by another arbitrator if]— a) he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay and b) he withdraws from his office or the parties agree to the termination of his mandate. 2) If a controversy remains concerning any of the grounds referred to in clauseof sub sectiona party may unless otherwise agreed by the parties apply to the Court to decide on the termination of the mandate. 3) If under this section or sub section of Section 13 an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator it shall not imply acceptance of the validity of any ground referred to in this section or sub sectionof Section 12.‖ 20. A plain reading of Section 14 of the Act indicates that it applies only in cases where the Arbitrator becomes de jure or de facto unable to perform his functions or for other reasons fails to act without delay. In terms of Clause of Section 14(1) of the Act it also applies where the Arbitrator withdraws from his office or his mandate is terminated by the parties. It is obvious from the plain language of Section 14(1) of the Act that it has no application in cases where the Arbitral Tribunal is proceeding with the reference and the mandate of the Arbitrators is not terminated by the parties. 21. Reliance on the case of Lalitkumar is also misplaced. In the said case the Arbitral Tribunal had terminated the arbitral O.M.P.(COMM.) 88 2020 proceedings as the concerned party had failed to pay the arbitration fees. The Supreme Court held that such termination would fall within the ambit of Section 32(2)(c) of the Act that is on the Arbitral Tribunal‘s finding that continuation of arbitral proceedings has become unnecessary or impossible. It is in that context that the Supreme Court held that ―the question whether the mandate of the arbitrator stood legally terminated or not can be examined by the court as provided under Section 14(2)‖. This decision would have little relevance in cases where the arbitral proceedings have not been terminated the arbitrators are able to perform their function and they have neither withdrawn their mandate nor has the same been terminated by the parties. 22. As noticed above the question whether the disputes are arbitrable or not is a matter effecting the jurisdiction of the Arbitral Tribunal and the same is not a subject matter of Section 32(2)(c) of the Act. 23. The present petition is thus misconceived. The same is accordingly dismissed. VIBHU BAKHRU J JANUARY 8 2021 O.M.P.(COMM.) 88 2020

SC directs Airlines to refund money if credit shell not used

In the case of Pravasi Legal Cell & Ors. Vs Union of India & Ors. [DIARY NO.10966/2020], Supreme Court directed all the airlines to refund the whole ticket amount to the passengers. Various petitions have been filed in the nature of public interest litigation under Article 32 of the Constitution of India, seeking directions to various airlines operating both – domestic and international flights – to refund the ticket amounts collected from the passengers of the flights which are cancelled on account of lockdown, with a consequential direction to the respondents to refund the same without levying any charges on account of cancellation etc. Hence, a consolidated hearing was done to dispose the matter. In the view of lockdown, a ban on operation of all domestic and international flights was imposed. The Ministry of Civil Aviation issued an advisory stating that the Airline shall refund the full amount collected without levy of cancellation charge. In the same memorandum, Government had issued directions to Directorate General of Civil Aviation to monitor the compliance of such advisories. The contention of the petitioner’s is that although it is obligatory on the part of the respondent-airlines, operating domestic as well as international flights, to refund the full amount collected for the tickets which are not utilised in view of the cancellation of flights in the wake of restrictions imposed by Government of India to contain COVID19, respondents are providing a credit shell with the validity of one year, which is contrary to Civil Aviation Requirements (CAR) of May 2008. The respondent- airlines submitted that if any enforcement action is initiated by the DGCA for violations of CARs mentioned above, same may result in reduction/suspension of approved schedule of airline, who have already started operating their flights with limited capacity. It was submitted that any such strict enforcement action against airline would further restrict/reduce their operation and any such strict enforcement action may further jeopardise the possibility of generation of cash by the airline which can further adversely affect/delay the refund cycle. Keeping a considerate view towards both the passenger and the airline, Supreme Court gave the following directions – 1. If a passenger has booked a ticket during the lockdown period (from 25 March, 2020 to 24  May, 2020) for travel during lockdown period and the airline has received payment for booking of air ticket for travel during the same period, for both domestic and international air travel and the refund is sought by the passenger against that booking being cancelled, the airline shall refund the full amount collected without any cancellation charges. The refund shall be made within a period of three weeks from the date of cancellation. 2. If the tickets have been booked during the lockdown period through a travel agent for a travel within the lockdown period, in all such cases full refund shall be given by the airlines immediately. On such refund, the amount shall be passed on immediately by the agent to the passengers. 3. Passengers who booked tickets at any period of time but for travel after 24 May, 2020 – refund of fares to the passengers covered under this category shall be governed by the provisions of Civil Aviation Requirements (CAR). 4. Even for international travel, when the tickets have been booked on an Indian carrier and the booking is exIndia, if the tickets have been booked during the lockdown period for travel within the lockdown period, immediate refund shall be made. 5. If the tickets are booked for international travel on a foreign carrier and the booking is exIndia during the lockdown period for travel within the lockdown period, full refund shall be given by the airlines and said amount shall be passed on immediately by the agent to the passengers, wherever such tickets are booked through agents. In all other cases airline shall refund the collected amount to the passenger within a period of three weeks. 6. In all other cases, the airlines shall make all endeavours to refund the collected amount to the passenger within 15 days from today. If on account of financial distress, any airline / airlines are not able to do so, they shall provide credit shell, equal to the amount of fare collected, in the name of passenger when the booking is done either directly by the passenger or through travel agent so as to consume the same on or before 31st March, 2021. It is open to the passenger either to utilize such credit shell upto 31st March, 2021 on any route of his choice or the passenger can transfer the credit shell to any person including the travel agent through whom he / she has booked the ticket and the airlines shall honour such a transfer. 6.1 The credit shell issued in the name of the passenger shall be transferable which can be utilized upto 31st March, 2021 and the concerned airline shall honour such a transfer by devising a mechanism to facilitate such a transfer. It is also made clear that such credit shell can be utilized by the concerned agent through whom the ticket is booked, for third party use. It is also made clear that even in cases where credit shell is transferred to third party, same is to be utilized only through the agent who has booked the ticket at the first instance. 7. In cases where passengers have purchased the ticket through an agent, and credit shell is issued in the name of passenger, such credit shell is to be utilized only through the agent who has booked the ticket. In cases where tickets are booked through agent, credit shell as issued in the name of the passenger which is not utilized by 31st March, 2021, refund of the fare collected shall be made to the same account from which account amount was received by the airline. 8. In all cases where credit shell is issued there shall be an incentive to compensate the passenger from the date of cancellation up-to 30 June, 2020 in which event the credit shell shall be enhanced by 0.5% of the face value (the amount of fare collected) for every month or part thereof between the date of cancellation and 30th June, 2020. Thereafter the value of the credit shell shall be enhanced by 0.75 of the face- value per month up-to 31 March, 2021.”

W.P.(C)D.No.109620 etc Background facts and relief sought for in this batch of The pandemic situation of COVID­19 has adversely W.P.(C)D.No.109620 etc of all domestic and international flights was imposed. The flights. There was an issue of refund of air fare during the lockdown period when domestic and international flights’ an advisory to all stake holders in civil aviation sector in the shape of Office Memorandum dated 16th April 2020. The If a passenger has booked a ticket during the first lockdown period for both domestic and international air travel and amount collected without levy of cancellation charge. The refund shall be made within a period of three weeks from the respondent­airlines operating domestic as well as international flights in India in not refunding the full amount wake of restrictions imposed by the Government of India to W.P.(C)D.No.109620 etc A consequential relief is sought to direct the respondents to In this writ petition it is the allegation of the petitioners by Government of India to contain COVID­19 respondents are providing a credit shell with the validity of one year which is in credit shell by the airlines shall be prerogative of the passenger and not a default practice of the airline. While referring to O.M. dated 16.04.2020 issued by the MoCA it is the tickets that were booked during the lockdown period and leaves out the majority of passengers who had booked tickets that by issuing O.M. dated 16.04.2020 the Government has indirectly approved the practice of airlines for providing Credit Shell for the tickets booked before the lockdown was declared W.P.(C)D.No.109620 etc runs contrary to CAR petitioners have sought relief by way of 5. W.P.(C)No.570 of 2020 is filed by Air Passengers litigation under Article 32 of the Constitution of India seeking directions to various airlines operating both domestic and refund the same without levying any charges on account of cancellation etc. In this writ petition also it is the allegation of the petitioner­Association that the CARs have been issued in exercise of powers under provisions of Aircrafts Act 1934 to standards and recommended practices but same is not being airlines in providing ‘Credit Shell’ instead of refunding the full amount collected for the tickets cancelled on account of cancellation of flights is in clear violation of CARs. The petitioner also alleges that the option of holding the refund W.P.(C)D.No.109620 etc the representation filed by it on 24.05.2020 and various actions of the airlines in not refunding the amounts spent by them on air tickets it is alleged that the action of the respondents in withholding the amounts spent by them on air dated 16.04.2020 in refunding the amounts as directed and issuing ‘Credit Shell’ instead of refund. With the aforesaid of restrictions imposed by the Government of India to contain W.P.(C)D.No.109620 etc 05.06.2020 as illegal arbitrary and contrary to CARs. They seek directions to refund the full amount of Rs.1 66 434 ­ collected by no.1 is a senior citizen who has served in Indian Army for 27 New York to New Delhi on 05.06.2020 for an amount of Rs.1 66 434 ­. While referring to the advisory issued by the the Director General of Civil Aviation Government of India for their tickets by seeking refund of the amount. In this writ petition it is the specific case of the petitioners that the O.M directs all airlines to pay full refund without levying any cancellation charges for the bookings made and payment received only during the lockdown period from 25.03.2020 to W.P.(C)D.No.109620 etc 03.05.2020 as illegal. It is alleged that the said Memorandum had booked their tickets to travel to United States of America much earlier to restrictions imposed to control the spread of had booked tickets during the lockdown period and the passengers who had booked tickets earlier petitioners seek denial of legitimate refund to the petitioners by the airlines is patently unfair and also states that the action of the third respondent in offering ‘Credit Shell’ instead of refund is leisure is likely to remain restricted in the foreseeable future Petitioners while pleading that giving ‘Credit Shell’ vouchers them runs contrary to CAR allege that the denial of refund by of the petitioners and similarly placed persons. With the aforesaid allegations petitioners seek quashing of O.M. dated 16.04.2020 with a consequential direction to refund the full amount of Rs.1 66 434 ­ collected by the third respondent for W.P.(C)D.No.109620 etc of India a society registered under the Societies Registration Act 1860 seeking declaration that the action on the part of the airlines operating domestic as well as international flights in travel during the period of ban on air travel as illegal and arbitrary with a consequential direction to the respondents to the Ministry of Civil Aviation and Directorate General of Civil refund on tickets booked for travel during the lockdown on account of their cancellation. It is the allegation of the agents who are the members of the present petitioner. While distinct from passengers who have booked the tickets directly W.P.(C)D.No.109620 etc airlines they are compelling the travel agents passengers to is no certainty in rescheduling the travel plans petitioner­ Federation has questioned the action of the respondents in offering ‘Credit Shell’ and seeks directions for refund of full during the lockdown period and ban imposed on operation of domestic as well as international flights it is the case of the petitioner that non­refund of the amount by airlines for the referring to the CARs issued by DGCA and Rule 133A of the Aircraft Rules it is alleged that holding the refund amount in by leaving vast majority of passengers who had booked tickets W.P.(C)D.No.109620 etc have booked tickets to passengers even before receipt of fare them they will suffer undue hardship. While referring to the situation of pandemic COVID­19 globally it is stated that further unlikely that people will travel for leisure activities in have been received by the airline. It is alleged that such directions would secure fair and expedient justice by avoiding filed by the Pravasi Legal Cell and other subsequent writ Court Airlines were impleaded as the party respondents and intervening in the matter which were allowed by this Court W.P.(C)D.No.109620 etc the impleaded respondents on behalf of the Airlines Travel Agents Federation of India and others who are allowed to be while denying the various allegations made by the petitioners they have explained the existing legal regime with respect to refund of fares and clarified the circumstances which led to issuance of O.M. dated 16.04.2020. While referring to the meetings held by the Ministry of Civil Aviation with the representatives of Airlines the affidavit discloses the concerns highlighted during such meetings and indicated the proposed well as the airlines. The Ministry of Civil Aviation after which were referred to in the affidavit and deals with various situations such as for domestic airlines where tickets were the ticket had been booked on an Indian carrier when the booking is for ex­India and for international travel when the W.P.(C)D.No.109620 etc The supplementary affidavit filed on behalf of respondent nos.1 and 2 further clarified on categories of passengers who are proposed to be covered and clarified the period of booking of tickets and also with regard to the credit said respondents further clarifying with regard to credit shell 10. We have heard Sri Sanjay Hegde learned senior counsel appearing for the petitioner­Pravasi Legal Cell in W.P.(C).Diary No.10966 of 2020 Sri C.A. Sundaram learned senior counsel Jain learned counsel appearing for the petitioners in W.P C)No.952 of 2020 and Sri Harshwardhan Bhende learned of India Sri Arvind P. Datar learned senior counsel appearing for Go Airlines Ltd. Sri Harish N. Salve learned senior counsel appearing for Spicejet Ltd. Sri Mukul Rohtagi learned senior counsel appearing for Interglobe Aviation Ltd. Sri Pinaki Misra learned senior counsel appearing for and Sri Pallav Shishodia learned senior counsel appearing for 11. By considering the grievances amongst the airline passengers on the issue of refund of tickets by airlines the Directorate General of Civil Aviation has issued Civil Aviation in the said requirements when the tickets are purchased by within seven days of cancellation in case of cash transactions is completed within 30 working days. Further directions were issued to the airlines to refund all statutory taxes and User Development Fee Airport Development Fee Passenger Service Similar such Requirements are also issued by and clause 3.3 of the said Requirements deals with the issue relating to ‘cancellation of flight’ and the obligations on the acceptable to the passenger. In ordinary course the said W.P.(C)D.No.109620 etc stake holders while issuing notice this Court vide order dated Issue notice. Mr. Rajat Nair learned counsel Mr. Tushar Mehta learned Solicitor General Learned Solicitor General submits that a suggestion given by Mr. Harish Salve learned be taken by the Ministry of Aviation to do the Liberty is given to the airlines to file counter W.P.(C)D.No.109620 etc video conferencing to discuss issues relating to refund of air fares by airlines. As referred in the affidavit the meeting was Shri Vinay Dubey CEO Go Air Shri Rajiv Bansal CMD Air India Shri K. Shyam Sundar CEO Air India Express Shri V. Hejmadi Director Finance Air India Shri Melwin D’Silva EDAir India Shri Bhaskar Bhat Chairman Vistara 12. Shri Leslie Thng CEO Vistara Shri Moin Wasil HeadVistara W.P.(C)D.No.109620 etc Shri Ankur Garg CCO Air Asia Ms. Priya Mehra HeadIndiGo Shri Sanjay Gupta HeadIndiGo Ministry on 11.07.2020 one with Online Travel Agents and are also placed on record. While explaining the existing legal regime relating to refund of fares it is stated that same is governed by Civil Aviation Requirements which recognise the referring to relevant provisions of the CARs of 22.05.2008 and 06.08.2010 as revised on 27.02.2019 it is stated that for cancellation of flights due to force majeure for every month or part thereof between the date of cancellation and 30th June 2020. Thereafter the value of credit c. The credit shell shall be transferable. The passenger can transfer the credit shell to any person and the airlines shall honour d. By the end of March 2021 the Airlines shall 4. Notwithstanding what is stated above the travellers who have since expired to the W.P.(C)D.No.109620 etc account of the passenger or to his B. For domestic airlines when the ticket has been 1. If the tickets have been booked during the period in all such cases full refund shall be mandated vide MoCA’s OM dated 16th April 2. For all other cases the airlines shall make all endeavours to refund the collected amount 3. If on account of financial distress if the airlines shell equal to the amount of fare collected credit shell up to 31st March 2021 on any shell then he can use cash to top it up. If the credit shell he she can do so and the balance amount of credit shell shall be b. There shall be an incentive mechanism to W.P.(C)D.No.109620 etc of cancellation up to 30th June 2020 the value of credit shell shall be enhanced by 0.5% of the face value for every month or part thereof between the date of cancellation and 30th June 2020. Thereafter the value of credit c. The credit shell shall be transferable. The passenger can transfer the credit shell to any person and the airlines shall honour d. By the end of March 2021 the Airlines shall 4. Notwithstanding what is stated above the booked on an Indian carrier and the booking is 1. If the tickets have been booked during the period in all such cases full refund shall be mandated vide MoCA’s OM dated 16th April W.P.(C)D.No.109620 etc 2. For all other cases the airlines shall make all endeavours to refund the collected amount 3. If on account of financial distress if the airlines shell equal to the amount of fare collected credit shell up to 31st March 2021 on any shell then he can use cash to top it up. If the credit shell he she can do so and the balance amount of credit shell shall be b. There shall be an incentive mechanism to of cancellation up to 30th June 2020 the value of credit shell shall be enhanced by 0.5% of the face value for every month or part thereof between the date of cancellation and 30th June 2020. Thereafter the value of credit c. The credit shell shall be transferable. The passenger can transfer the credit shell to any person and the airlines shall honour W.P.(C)D.No.109620 etc d. By the end of March 2021 the Airlines shall e. Notwithstanding what is stated above the of persons who have since expired. This 1. If the tickets have been booked during the period in all such cases full refund shall be mandated vide MoCA’s OM dated 16th April 2. For all other cases the airlines shall refund the collected amount to the passenger within 15 This amount shall be passed on of passengers who are proposed to be covered under the proposed formulations mentioned in the earlier affidavit it is W.P.(C)D.No.109620 etc Passengers who had booked their tickets Passengers who had booked their tickets through a travel agent for International travel passengers who had booked their ticket on an Indian carrier and International travel passengers who had booked their ticket on a foreign carrier and Though the term ex­India is not defined in the Aircraft Act 1934 and the Aircraft Rules 1937 but in aviation industry this term denotes the flights cases where passengers who have booked the tickets prior to lockdown for travel upto 24th May 2020 and refund of fares to proposed formulation relating to credit shell and incentive scheme. Further passengers who have booked tickets during lockdown for travel during lockdown such category of passengers are entitled for immediate refund of fares by the W.P.(C)D.No.109620 etc of time but for travel after 24th May 2020 it is stated that the operators with regard to credit shell it is stated that in this agent and agent purchases ticket for the passenger and the by tour operator who has paid the money to the airline for that money to the agent then on cancellation of ticket and of passenger and in case passenger utilises the credit shell he 2021 then airline will have to refund the amount as per proposed formulation and money will go back to the same W.P.(C)D.No.109620 etc March 2021 then the airline will have to refund with interest 15. Referring to supplementary affidavit filed on behalf of for the passenger by paying their money which is yet to be was paid to the airline there should not be any difficulty in issuing credit shell in the name of agent the learned Solicitor and 2. In this affidavit it is stated that the existing regulatory W.P.(C)D.No.109620 etc named passenger only can be accounted for in the ‘passenger the best international practices and regulations. The travel agent if any involved in the purchase of any ticket on behalf of any passenger remains only a via­media leaving the principal contract between the airline and the passenger only. Therefore ticket. As such it is stated that credit shell is proposed to be issued in the name of passengers only who have booked their such voucher is not used before 31st March 2021 as per the In view of such formulations which are arrived at during other stake holders airlines etc. it is submitted that substantially their grievances stand resolved but at the same 17. Sri Sanjay Hegde learned senior advocate appearing for the W.P.(C)D.No.109620 etc Sundaram learned senior counsel appearing for the Air mode they have booked all passengers are entitled for refund immediately. It is submitted that the problems faced by the by the passengers. Sri Harshwardhan Bhende learned counsel appearing for the Travel Agents Federation of India has investing their money on behalf of the passengers there is no reason for not issuing credit shell in the name of agents. Sri Pallav Shishodia learned senior counsel appearing for Indian credit shell is not utilised by 31st of March 2021 refund has to W.P.(C)D.No.109620 etc 18. Shri Harish Salve learned senior counsel appearing for mentioned in the affidavit are by and large acceptable to his client. Sri Rohtagi learned senior counsel appearing for Indigo by drawing our attention to the detailed affidavit filed on its that in developed countries airline industry has been able to otherwise including dispensations from refunds). However no comparable measures have yet been introduced in India. By referring to facts and figures as mentioned in the affidavit W.P.(C)D.No.109620 etc worst affected sectors on account of pandemic COVID­19 the economic performance of the airline industry. In its report after predicting a world­wide US$ 434 billion drop in airline revenue and related indirect tax receipts and a 50.6% fall in contract by 5.0% in 2020 COVID­19 will have a significant worst year in the history of airlines with net losses of $84.3 Referring to the severe liquidity crunch faced by airlines it is 2021 it is not possible to refund the money as ordered and learned counsel has requested to extend the time to encash sides and at the same time the suggestions formulations as on cancellation of tickets are governed by the Civil Aviation Requirements i.e. CAR dated 22nd May 2008 06th August 2010 W.P.(C)D.No.109620 etc the provisions of Aircrafts Act 1934 and the Rules made the civil aviation sector which is one of the important sectors is enforcement action of the CARs would further restrict reduce their operations and such enforcement action may further can further adversely affect delay the refund cycle. Strict by this Court by issuing appropriate directions wherever W.P.(C)D.No.109620 etc safeguarded. Sri Arvind Datar learned senior counsel though are not inclined to accept the same keeping in mind that the passengers who with the hope of travel have booked their deem it appropriate to dispose of this batch of cases with the lockdown periodfor travel during lockdown period and the by the passenger against that booking being cancelled the airline shall refund the full amount collected without any cancellation charges. The If the tickets have been booked during the within the lockdown period in all such cases full refund shall be given by the airlines immediately On such refund the amount shall be passed on W.P.(C)D.No.109620 etc have been booked on an Indian carrier and the during the lockdown period for travel within the If the tickets are booked for international during the lockdown period for travel within the lockdown period full refund shall be given by the airlines and said amount shall be passed on immediately by the agent to the passengers all other cases airline shall refund the collected amount to the passenger within a period of three endeavours to refund the collected amount to the of financial distress any airline airlines are not able to do so they shall provide credit shell equal to the amount of fare collected in the name of by the passenger or through travel agent so as to W.P.(C)D.No.109620 etc shell upto 31st March 2021 on any route of his to any person including the travel agent through whom he she has booked the ticket and the The credit shell issued in the name of the upto 31st March 2021 and the concerned airline shall honour such a transfer by devising a mechanism to facilitate such a transfer. It is also the concerned agent through whom the ticket is booked for third party use. It is also made clear In cases where passengers have purchased the ticket through an agent and credit shell is the ticket. In cases where tickets are booked the passenger which is not utilized by 31st March shall be an incentive to compensate the passenger which event the credit shell shall be enhanced by W.P.(C)D.No.109620 etc cancellation and 30th June 2020. Thereafter the Further the second respondent­Directorate shall ensure strict 20. With the above directions these writ petitions are disposed

Appellant has 8 queries regarding Karvy’s closure cum transfer application: SEBI, Part 3.

In response to query number 5, the respondent informed that if any action is taken by SEBI, the same would be available in the public domain, on the SEBI website. The respondent also provided the link to access the SEBI website for updated information from time to time. It is understood that SEBI conducts examinations/ investigations confidentially, to examine alleged or suspected violations of laws and regulations relating to the securities market. However, post investigation, whenever violations are established, appropriate enforcement actions are taken under provisions of the SEBI Act, 1992 and Regulations framed thereunder, which culminate in the issuance of orders and the same are available on the SEBI website, which is in public domain. It was noted that the respondent also provided the link to access the SEBI website. In view of the same, no deficiency was found in the response by Mr Baiwar. With respect to query number 6, the respondent provided the link for accessing the document enumerating the rights and obligations of the broker and client as prescribed by SEBI and Stock Exchanges. The respondent also provided the link for accessing the SCORES portal, for lodging a grievance, if any. Mr Baiwar had perused the query and the response provided thereto. On consideration, it was found that the respondent has adequately addressed the query by providing the information available with him. Further, it was noted that the appellant has not made any specific submission against the response provided by the respondent. In view of the same, no interference of this forum is warranted at this stage. The respondent, in response to the queries 7 and 8, informed that if an investor/ complainant is not satisfied with the redressal of his complaint, he can appeal against the resolution in SCORES or at Exchange. The respondent also provided the link for accessing the grievance mechanism at NSE.

Appeal No. 43621 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43621 Ashok Kumar Agarwala CPIO SEBI Mumbai The appellant had filed an application dated May 25 2021under the Right to Information Act 2005 held that “The Commission observes that the respondents can provide only that information which is existing and available with them and the RTI Act does not mandate it for the respondent authority to create information if it is not collected and collated in the normal course of their duties. The Commission therefore does not find any need to intervene in the matter. The appeal is disposed of.” Further I note that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO SEBIheld: “… if itdoes not have any such information in its possession the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations I find that the information sought by the appellant was not available with SEBI and therefore the respondent cannot be obliged to provide such non available information. 6. Query number 5 The appellant vide query number 5 inter alia sought information regarding action taken against the said TM for their illegal activities of collecting excessive statutory charges from the clients. In response to query number 5 the respondent informed that if any action is taken by SEBI the same would be available in the public domain on the SEBI website. The respondent also provided the link to access the SEBI website for updated information from time to time. It is understood that SEBI conducts examinations investigations confidentially to examine alleged or suspected violations of laws and regulations relating to the securities market. However post investigation whenever violations are established appropriate enforcement actions are taken under provisions of the SEBI Act 1992 and Regulations framed thereunder which culminate in the issuance of orders and the same are available on the SEBI website which is in public domain. I note that the respondent also provided the link to access the SEBI website. In view of the same I do not find any deficiency in the response. 8. Query number 6 The appellant vide query number 6 sought the following information “6. What are the rights of the client in this regard and what action can the client take against such illegal activities and against whom ” 9. With respect to query number 6 the respondent provided the link for accessing the document enumerating the rights and obligations of the broker and client as prescribed by SEBI and Stock Appeal No. 43621 Exchanges. The respondent also provided the link for accessing the SCORES portal for lodging a grievance if any. I have perused the query and the response provided thereto. On consideration I find that the respondent has adequately addressed the query by providing the information available with him. Further I note that the appellant has not made any specific submission against the response provided by the respondent. In view of the same no interference of this forum is warranted at this stage. 11. Query numbers 7 and 8 The appellant vide query numbers 7 and 8 sought the following information 7. Why all the complaints made against this TM with SCORES have been closed without taking any action against the TM and without any Redressal of the complaint filed by the client 8. Why the Complainant consent is not taken before closing the complaint on sided by the ISC of NSE. 12. The respondent in response to the queries informed that if an investor complainant is not satisfied with the redressal of his complaint he can appeal against the resolution in SCORES or at Exchange. The respondent also provided the link for accessing the grievance mechanism at NSE. 13. On perusal of the queries it appears that the same are in the nature of seeking clarification opinion from the respondent regarding procedure followed for disposal of complaints. It is understood that the respondent is not supposed to create information or to interpret information or to furnish clarification to the appellant under the ambit of the RTI Act. I find that the said queries cannot be construed as seeking ‘information’ as defined under section 2of the RTI Act. In this context reference is made to the mater of Vineet Pandey vs. CPIO United India Insurance Company Limitedwherein similar observations were made by the Hon’ble CIC. Further in the matter of Shri Shantaram Walavalkar vs. CPIO SEBI I note that the Hon’ble CIC held: “... we would also like to observe that under the Right to InformationAct the citizen has the responsibility to specify the exact information he wants he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO...”. In view of the said observations the respondent did not have an obligation to provide such clarification opinion under the RTI Act. 14. Notwithstanding the above I note that the respondent has informed regarding action that can be taken by an investor complainant if he is not satisfied with the redressal of his complaint. I find that the queries have been adequately addressed. Accordingly I do not find any deficiency in the response. Appeal No. 43621 15. Further on perusal of the appeal it appears that the appellant has grievance regarding the activities of the TM and handling of complaints on the SCORES portal. I note that the Hon’ble CIC in the matter of Sh. Triveni Prasad Bahuguna vs. LIC of India Lucknow held: “The Appellant is informed that … redressal of grievance does not fall within the ambit of the RTI Act rather it is up to the Appellant to approach the correct grievance redressal forum…”. In view of these observations I find that if the appellant has any grievance the remedy for the same would not lie under the provisions of the RTI Act. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: August 04 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Compensation to be awarded under non-pecuniary heads like ‘pain and suffering’, ‘deprivation of pleasures of life’ and ‘loss of marriage prospects : Jammu and Kashmir High Court

Compensation awarded by a Tribunal in favour of the injured under other non-pecuniary heads is also wholly justified when the injured with the kind of disability which he has suffered, will certainly not be able to live a normal life and he will certainly be dependent on others for routine functioning like putting on clothes, eating food etc. This was held in the judgment passed by a single judge bench comprising of HON’BLE MRS. JUSTICE SINDHU SHARMA, in the matter M/s New J.K. Roadways V. Union Territory of J&K and others. [CMAM No. 34/2014], dealt with an issue where the petitioner filed a petition challenging award passed by the Motor Accidents Claims Tribunal, Srinagar in a claim petition filed by respondent against the owner, driver and insurer of the vehicle (Bus). As per the case of the claimant, while he was travelling in the aforesaid vehicle from Srinagar towards Tral, the said vehicle met with an accident, as a result of which, he suffered serious injuries, resulting in amputation of his right arm. The claimant sought compensation in the sum of ₹29.00 lacs from the owner, driver and the insurer of the offending vehicle. The owner did not contest the claim petition and they were set ex-parte, whereas the appellant-insurance company contested the claim petition by filing its reply, whereby it admitted the currency of the policy of insurance of the offending vehicle with it at the time of the accident, but denied the occurrence. The insurance company further contended that there was breach of policy condition inasmuch as the driver of the offending vehicle was not holding a valid driving licence at the time of the accident. Aggrieved by the aforesaid award, the insurance company has filed the instant appeal on the grounds that the driver of the offending vehicle was booked for offences including the one under Section 3/181 of the Motor Vehicle Act, which shows that he was not carrying a valid driving licence at the time of the accident, but inspite of this, the Tribunal concluded that there was no breach of the policy condition on the part of the insured; that the amount of compensation awarded by the Tribunal is exorbitant, excessive and unjust and that for about two years, the claimant did not prosecute the matter before the Tribunal, but even then the interest for this period has been awarded in favour of the claimant; that neither the penal interest nor the interest on loss of future income could have been awarded by the Tribunal. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir dismissed the petition and held that the Tribunal has been justified in awarding the future attendant charges in favour of the attendant, because from the statement of the doctor who examined the injured, it is clear that during the period of hospitalization, such patients need constant attendant and further an attendant is needed for such patients for whole of their lives as they are unable to perform their daily routine duties and have to depend upon the services of attendants for whole of their lives. Click here to view judgement

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Reserved on: 17.06.2020 Pronounced on:30.06.2020 CMAM No. 111 2010 IA No. 01 2010National Insurance Company Ltd. Through : Mr. J.A. Kawoosa Advocate. on Video Conferencing from Srinagar) Bilal Ahmad Mir and others. Through : Mr. B.S. Bali Advocate. on Video Conferencing from Srinagar) Coram: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE The instant appeal has been filed by the appellant against the Award dated 15.03.2010 passed by the Motor Accidents Claims Tribunal Srinagarin a claim petition filed by respondent No. 1 herein Bilal Ahmad Mir against the owner driver and insurer of the vehiclebearing Registration No. JKB 4051. As per the case of the claimant on 14.07.2004 while he was travelling in the aforesaid vehicle from Srinagar towards Tral the said vehicle met with an accident on reaching Sempora as a result of which he suffered serious injuries resulting in amputation of his right arm. The claimant sought compensation in the sum of ₹29.00 lacsfrom the owner driver and the insurer of the offending vehicle. 2 CMAM No. 111 2010 a w connected IA. Respondent No. 2 herein the driver and respondent No. 3 the owner did not contest the claim petition and they were set ex parte whereas the appellant insurance company contested the claim petition by filing its reply whereby it admitted the currency of the policy of insurance of the offending vehicle with it at the time of the accident but denied the occurrence. The insurance company further contended that there was breach of policy condition inasmuch as the driver of the offending vehicle was not holding a valid driving licence at the time of the accident. The Tribunal vide its order dated 28.04.2007 on the basis of the pleadings of the parties framed the following issues: Whether on 14.07.2004 Imtiyaz Ahmad Bhat respondent No. 1 was plying bus bearing registration No. JKB 4054 rashly and negligently as a result of which at Sempora it hit Bilal Ahmad Mir petitioner who sustained serious injuries due to which his right arm was amputated which has rendered him permanently disabled and handicapped OPP ii. Whether the respondent No. 1 i.e. driver of the offending vehicle was not holding a valid driving licence on the date of the accident and the vehicle was without valid RP and other relevant documents as such the insurance company cannot be saddled with any liability because injured has committed breach of police stipulations OPR 3 In case issue No. 1 is proved in affirmative to what amount of compensation the petitioner is entitled to from whom and in what proportion OPP After recording the evidence the Tribunal came to the conclusion that the injured had suffered the injuries as a result of the accident which is subject matter of the case and that there was no breach of any policy condition. Accordingly a sum of ₹15 10 000 was awarded as compensation in favour of the injured with a direction to the 3 CMAM No. 111 2010 a w connected IA. appellant insurance company that the awarded sum along with interest @ 6% per annum from the date of institution of the claim petition till final realization of the awarded sum be paid by it within a period of two months failing which the awarded sum shall be recoverable with enhanced interest @ 9% per annum from the date of the default. Aggrieved by the aforesaid award the insurance company has filed the instant appeal on the grounds that the driver of the offending vehicle was booked for offences including the one under Section 3 181 of the Motor Vehicle Act which shows that he was not carrying a valid driving licence at the time of the accident but inspite of this the Tribunal concluded that there was no breach of the policy condition on the part of the insured that the amount of compensation awarded by the Tribunal is exorbitant excessive and unjust and that for about two years the claimant did not prosecute the matter before the Tribunal but even then the interest for this period has been awarded in favour of the claimant that neither the penal interest nor the interest on loss of future income could have been awarded by the Tribunal. The contention of the claimant on the other hand is that the insurance company did not lead any evidence to prove that the offending driver was not holding a valid driving licence at the relevant time and that the amount awarded by the Tribunal in favour of the injured is just and reasonable. 4 CMAM No. 111 2010 a w connected IA. I have heard learned counsel for the parties. I have also gone through the impugned award the grounds of the appeal and record of the Tribunal. The first contention that has been raised by the appellant insurance company is with regard to the validity of the driving licence of the driver of the offending vehicle. It is urged that the file relating to criminal case that was summoned by the Tribunal during the proceedings before it clearly shows that the driver was booked for offence under Section 3 181 of the Motor Vehicle Act meaning thereby that the driver was not holding a valid driving licence at the time of the accident. A perusal of the record of the Tribunal reveals that vide seizure memo dated 04.07.2004 a number of documents relating to the offending vehicle appear to have been seized by the Investigating Officer which include the driving licence of Imtyaz Ahmad Bhat bearing No. 8374 MVD RTO J with its validity up to 20.04.2006. Though it is written in the challan that the driving licence of the driver of the offending vehicle was invalid yet the nature of the invalidity of the driving licence of the offending driver has remained shrouded in mystery. This mystery could have been unraveled by the Investigating Officer who has stepped into the witness box as a witness for the claimant but no questions have been put to the witness on this aspect by the counsel for the insurance company. Admittedly the insurance company has led no other evidence on this aspect of the case. The copy of the driving licence is not on record of the Tribunal and the insurer on whom the burden of proof of breach of policy conditions lay did not produce any evidence. In fact the isurer 5 CMAM No. 111 2010 a w connected IA. missed the opportunity of extracting evidence in its favour by not examining the Investigating officer on this aspect of the case. It is a settled law that onus of proving breach of policy condition is upon the insurer. The Hon’ble Supreme Court in the case titled “National Insurance Company Ltd. Vs. Swaran Singh and others reported as3 SCC 297” has made it clear by observing as under: “110of section 149 have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence fake or invalid driving licence or disqualification of the driver for driving at the relevant time are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.” From the above it is clear that it was for the appellant insurance company to prove before the Tribunal that the offending driver was not holding a valid driving licence at the time of the accident. The mere assertion in the police challan that the driver of the offending vehicle was not holding a valid driving licence will not amount to discharging of burden by the insurance company particularly when as per the seizure memo the driving licence of the offending driver had been seized by the police during the investigation of the case but no effort was made by the insurance company to unravel before the Tribunal the exact nature of the seized driving licence of the offending driver. The insurance company has not even examined any witness to prove the 6 CMAM No. 111 2010 a w connected IA. condition of the insurance policy regarding which the appellant insurance company is claiming the breach. In the aforesaid circumstances it cannot be stated that the insurance company has discharged its burden of establishing breach of policy condition on the part of the insured. Therefore the finding of the Tribunal that there was no breach of policy condition in the instant case cannot be interfered That takes us to the quantum of compensation that has been awarded by the Tribunal in this case. The main ground urged by the appellant is that the Tribunal has while computing the loss of future income of the injured taken the functional disability of the injured as 100% though the disability of the injured pertains to a particular limb only i.e. the right upper limb. According to the appellant even if the injured was rendered incapable of performing the job of a carpenter he could well perform any other job with less remuneration and as such the Tribunal was not justified in computing the compensation by taking the functional disability of the injured as 100%. It has also been urged that the future attendant charges could not have been awarded in favour of the injured. If we have a look at the impugned award the Tribunal has taken the income of the injured as ₹4000 per month. There is a finding of the Tribunal that the injured was a carpenter by profession and he would earn ₹200 per day as wages. Inspite of this the Tribunal has taken the monthly wages of the injured as ₹4000 only. 7 CMAM No. 111 2010 a w connected IA. Even if we take into account the government notified minimum rate of wages of a skilled worker at the relevant time the monthly wages of a carpenter could have been easily taken as ₹6000 per month and after making allowance for one holiday per week it would would come to around ₹5000 . It is correct that the disability of the injured as assessed by the doctor is pertaining to his right upper limb and not of his whole body but one has to take into account the fact that the injured has lost his right upper limb in the accident which is the normal working limb of a human being. Though it is shown in the cross examination of the doctor who has issued the disability certificate that the injured can run a shop with the assistance of a helper yet after taking into account the expenses that may be incurred in hiring the services of a helper and the poor financial status of the injured the actual earning of the injured by performing the job of a shopkeeper will be peanuts as compared to his earlier income. 16. The Hon’ble Supreme Court has in the case titled “Raj Kumar Vs. Ajay Kumar and Another reported as1 SCC 343” vide illustrationgiven in the said judgment relating to a case of amputation of right hand taken the functional disability of the injured as 70%. In the instant case the injured has lost whole of his right upper limb and permanent disability of the said limb is 100% therefore the functional disability of the injured in the facts and circumstances of the case can easily be taken as 80%. By applying this formula and taking the monthly income of the injured as Rs. 5000 the monthly loss of future income of the injured will come to ₹4000 . After applying the multiplier of 17 the loss of future income to the injured will come 8 CMAM No. 111 2010 a w connected IA. to ₹4000 X 12= ₹48 000 X 17= ₹8 16 000 . The Tribnal has also assessed the same amount as loss of future income to the injured. The other ground urged by the appellant is that the injured has been awarded a sum of ₹1 44 000 as attendant charges for the next twelve years by taking the attendant charges of ₹4000 per month which according to the appellant could not have been awarded. In my opinion the Tribunal has been justified in awarding the future attendant charges in favour of the attendant because from the statement of the doctor who examined the injured it is clear that during the period of hospitalization such patients need constant attendant and further an attendant is needed for such patients for whole of their lives as they are unable to perform their daily routine duties and have to depend upon the services of attendants for whole of their lives. The doctor has clearly stated that the injured cannot go for an artificial limb because his right limb has been amputated from the shoulder joint. There is no cross examination of the doctor on this aspect of the case and his statement in this regard has remained un rebutted. In the face of the above evidence it is clear that the injured needs an attendant throughout his life. A person who has lost his working limb cannot perform even his daily chores and he would usually need assistance of another person. Therefore to argue that the Tribunal was not justified in awarding attendant charges in favour of the attendant is wholly misconceived. The Tribunal has awarded the attendant charges in favour of the injured only 9 CMAM No. 111 2010 a w connected IA. for twelve years whereas the multiplier applicable to the age of the injured is 17. Since the injured has not filed any cross appeal therefore I leave it there but one thing is clear that the attendant charges awarded by the Tribunal in favour of the injured are not exorbitant. The appellant has challenged the quantum of compensation under non pecuniary heads like ‘pain and suffering’ ‘deprivation of pleasures of life’ and ‘loss of marriage prospects’. The amount awarded by the Tribunal under head ‘pain and suffering’ is ₹2.50 Lacs SANJAY DHAR) JUDGE Whether the order speaking: Whether the order is reportable: Yes No

Shreyasen & Anr. V/s. Union of India & Ors.

  Income Tax Law – For the duration of the exemption period there shall be no insistence for Aadhar and Pan linkage for filing Income tax returns.   [Case Brief] Shreyasen & Anr. V/s. Union of India &Ors.   Case name: Shreyasen & Anr. Vs. Union of India &Ors Case number: 2018 DHC 1023,(2018) 407 ITR 37 (DEL) Court: High Court of Delhi Bench: The Hon’ble Justice Mr. S. Ravindra Bhat The Hon’ble Justice Mr.A. K. Chawla Decided on: 24/07/2018 Relevant Act/Sections: Income-Tax Act   The petitioners claimed directions that they should be permitted to file Income Tax returns for AY 2017-2018 without complying with the condition of providing Aadhar Card registration number or Aadhar Card Enrolment number and a direction of the similar kind is sought thereby directing the CBDT to rely on its notification dated 30.06.2018.Vide its orders dated 31.07.17,31.08.17, 08.12.17 & 27.03.18, in file of even number, CBDT had allowed time till 30th June, 2018 to link PAN with Aadhaar while filing the tax-returns. Upon consideration of the matter, the CBDT further extends the time for linking PAN with Aadhaar till 31st March, 2019. ISSUE BEFORE THE COURT: Whether the petitioners be allowed to file Income Tax returns for AY 2017-2018 without complying with the condition of providing Aadhar Card registration number or Aadhar Card Enrolment number and a direction of the similar kind is sought thereby directing the CBDT to rely on its notification dated 30.06.2018? RATIO OF THE COURT The petitioner relied upon the order of this court dated 14.05.2018 (W.P. (C) No.3212/2018 – Mukul Talwar vs. Union of India & Ors. and connected matters) where the court dealt with a similar matter and held that after reading CBDT’s circular dated 27.03.2018there is no room for doubt that the time for linking PAN with Aadhaar has been extended to June 2018 in its expressed The Court, therefore, saw no reason to vary its previous order. The returns filed by the petitioner shall be expedited and processed in accordance with law subject to the outcome of the decision in WP(C) 494/2012 and connected matters.In the present petition, the CBDT has issued a similar order there the court held that a similar direction as in the case of Mukul Talwar (supra) is warranted in this case. Accordingly, the petitioners shall be permitted to file their returns, for AY 2018-2019, without any insistence of linkage of their Aadhar and their PAN numbers and without instance of production of their proof of Aadhar enrolment. In case the returns are filed within thetime prescribed by law, without such linkage, they shall be processed in accordance with law and in accordance with CBDT circular dated 27.03.2018 as extended on 30.06.2018.Court also held that at least for the period till 31.03.2019, the CBDT shall issue an appropriate direction, and also create a platform by amending the digital form of substituting them properly to enable “opt out” from the mandatory requirement of having to furnish Aadhar Registration or Aadhar linkage, for the duration, the exemption subsists i.e. till 31.03.2019. DECISION HELD BY COURT: The court held that, for the duration of the exemption period there shall be no insistence for Aadhar and Pan linkage for filing Income tax returns.  

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Order: July 24 2018 W.P.(C) 7444 2018 C.M. APPL. No. 28499 2018 SHREYASEN & ANR. Petitioner UNION OF INDIA & ORS. Through: Ms. Tripti Poddar Advocate Through: Ms. Amrita Prakash CGSC with Mr. Respondent Harishankar Sharma Advocate for respondent No.1 Mr. Ruchir Bhatia Senior Standing Counsel for respondent No.2 HON BLE MR. JUSTICE S. RAVINDRA BHAT HON BLE MR. JUSTICE A. K. CHAWLA S. RAVINDRA BHAT J.O R D E R The petitioners are claiming directions that they should be permitted to file Income Tax returns for AY 2017 2018 without complying with the condition of providing Aadhar Card registration number or Aadhar Card Enrolment number and a direction of the similar kind is sought thereby directing the CBDT to rely on its notification dated 30.06.2018. The petitioner relies upon the order of this court dated 14.05.2018No. 3212 2018 Mukul Talwar vs. Union of India & Ors. and connected matters). In those cases on 04.04.2018 this court had observed as follows: “The petitioners challenge Rule 12(3) of the Income Tax Rules as being violative of Article 14 of the Constitution. It is contended that the refusal to accept income tax returns is arbitrary and without authority of law. In this W.P.No. 7444 2018 regard the petitioners cited a statutory circular of the Central Board of Direct Taxesdated 27.03.2018 which reads as follows: “Order under Section 119 of the Income Tax Act its orders dated 31.07.17 31.08.17 & 08.12.17 in file of even number CBDT had allowed time till 31st March 2018 to link PAN with Aadhaar while filing the tax returns. Upon consideration of the matter the CBDT further extends the time for linking PAN with Aadhaar till 30th June 2018.” It is also pointed out that in identical circumstances the Punjab and Haryana High Court in CWP 7672 2018 Pardeep Kumar v. UOI and Ors.] had accepted the statement made on behalf of the Union that the system would accept the petitioners’ returns without Aadhaar Card. The order dated 28.03.2018 of the Division Bench of the Punjab and Haryana High Court reads as under: Present : Petitioner in person Mr . Satya Pal Jain Additional Solicitor General of India With Mr. Sourabh Gael Advocate for UOI Mr. Satya Pal Jain learned Additional Solicitor General of India appearing on behalf of the respondents states that the time for linking the Aadhar card with PAN Card has been extended up to 30.06. 2018 and as a result thereof the system would accept the petitioner s return without the Aadhar Card. In view thereof it is not necessary to consider the application for interim relief at this stage. The notification tendered by Mr. Jain is taken on record and marked. "X" . Issue notice of motion returnable on 10.05.2018. Copy dasti to petitioner under the signatures of the W.P.No. 7444 2018 Bench Secretary.” Having regard to the above facts and circumstances the respondents are hereby directed to ensure that the petitioners’ returns are accepted without indicating any linkage with Aadhaar No. quoting Aadhaar Enrolment No. or quoting Aadhaar No. with PAN details in accordance with the above circular provided they are duly filed before 30.06.2018.” The writ petitionNo. 3212 2018 Mukul Talwar vs. Union of India & Ors. and connected matters) were disposed of on 14.05.2018 in the following terms: “Counsel appearing for the Revenue urges that the interim order made by this Court has to be seen in the context of the directions of the Supreme Court in Binoy Viswam Vs. Union of India 7 SCC 59 especially in para 133 which by and large upheld the validity of Section 139AA of the Income Tax Act 1961 vs. Union of India 2017) 10 SCC 1. It is therefore urged that the CBDT’s circular relied upon by the petitioner is contextual and compliant of Section 139 AA of the Act is the norm. This Court has considered the submissions. When Binoy Viswamwas decided the Court was conscious of the issue as to whether the fundamental right to privacy existed or otherwise was moot the Larger Bench of the Judges is seized of the reference. Consciously therefore Binoy Viswam had not only upheld the validity of Section 139 AA of the Act but W.P.No. 7444 2018 also added a note of caution that the consequences spelt out under Section 139AA(2) of the Act would not be presently visited with respect to those assesses who are not Aadhaar Card holders and do not comply with the mandate. The Five Judgesmerely reiterated those observations when the judgment was pronounced by the nine Judges. If the CBDT’s circular dated 27.03.2018 is noticed in the background of these circumstances there is no room for doubt that the time for linking PAN with Aadhaar has been extended to June 2018 in its expressed term. The Court therefore sees no reason to vary its previous order. The returns filed by the petitioner shall be expedited and processed in accordance with law subject to the outcome of the decision in WP(C) 494 2012 and connected matters. Writ petitions are disposed of in the above terms. Pending applications too are disposed of. In the present petition the CBDT issued an order under Section 119 of the Income Tax Act 1961 on 30.06.2018 extending the time for linking the PAN and Aadhar Card till 31.03.2019 for the purposes of filing Income Tax returns. That order reads as follows: “Order under Section 119 of the Income tax Act 1961 Vide its orders dated 31.07.17 31.08.17 08.12.17 & 27.03.18 in file of even number CBDT had allowed time till 30th June 2018 to link PAN with Aadhaar while filing the tax returns. Upon consideration of the matter the CBDT further extends the time for linking PAN with Aadhaar till 31st March 2019.” Having considered the parties’ submissions and the material on record this court is of the opinion that a similar direction as in the case of Mukul Talwaris warranted in this case. Accordingly the petitioners shall be permitted to file their returns for AY 2018 W.P.No. 7444 2018 2019 without any insistence of linkage of their Aadhar and their PAN numbers and without instance of production of their proof of Aadhar enrolment. In case the returns are filed within the time prescribed by law without such linkage they shall be processed in accordance with law and in accordance with CBDT circular dated 27.03.2018 as extended on 30.06.2018. The petitioners point out that even after the CBDT Circular of 30.06.2018 which in effect suspended the requirement of Aadhar linkage with PAN for one year i.e. up to 31.03.2019 emails have been received from the Income Tax Authorities indicating that in respect of the grievances like in the present case parties have to approach the court. The relevant extracts of the said emails received by the petitioner No.1 in this regard is as follows: “Dear Taxpayer Greetings from e Filing Helpdesk. e Filing Request Number 5518705862 is Resolved. Issue Description: Resolution Inputs: Mandatory Quoting of Aadhaar Number Section 139M of the Income Tax Act 1961 as inserted by the Finance Act 4017 provides for mandatory quoting of Aadhaar I Enrolment ID of Aadhaar application form for filing of return of income and for making an application for allotment of Permanent Account Number with effect from 1st July 2017. However the Central Government vide notification dated 11th May 2017 has notified that the requirement of quoting of Aadhaar I Enrolment ID shall not apply to the following individuals If they do not possess the Aadhaar I W.P.No. 7444 2018 Enrolment ID: An individual who is residing In the state of Assam Jammu and Kashmir and· Meghalaya. An individual who is a non resident as per the Income Tax Act 1961: .An Individual of the age of 80 years or more at any time during the previous year. An individual who is not a citizen of India. For all other it is mandatory. In case you have any reservation on this aspect you may application of the above provisions of law. for specific relief the Judiciary Note: This is a system generate e mail. Please do not respond to this mail.” This court is of the opinion that at least for the period till 31.03.2019 the CBDT shall issue an appropriate direction and also create a platform by amending the digital form of substituting them properly to enable “opt out” from the mandatory requirement of having to furnish Aadhar Registration or Aadhar linkage for the duration the exemption subsists i.e. till 31.03.2019. In view of the aforesaid directions the writ petition is disposed Copy of this order be given dasti under signatures of Court S. RAVINDRA BHAT J A. K. CHAWLA J JULY 24 2018 W.P.No. 7444 2018

Change of Educational stream stands rejected- Karnataka HC

In present India, academic, education, career, and profession had always a dominant factor in the minds of young scholars and academicians. Students often stay bewildered regarding their educational course or subject even after choosing one. Therefore the Karnataka High Court in the case of Mr.Arnav Singh v. Organizing Chairman Jee (Advanced), 2019 & Ors.(WRIT PETITION NO. 9543\2020 ‘EDN-RES), the Hon’ble Court held that “ this writ petition being devoid of merits is liable to be rejected and accordingly it is. However, this rejection shall not come in the way of answering respondents otherwise considering petitioner’s request for change of branch, if there is any alteration in the circumstances favouring him”. The facts of the case initiate when the Petitioner who was an IIT student of Engineering ( Physics stream) approaches the apex court, seeking direction to the respondent to allow him “to change the Branch/ Academic stream of his choice….” On hearing the learned counsel from both the sides, the court declined to interfere in the aforesaid matter, for the following reasons. Firstly, there was no change in his rank, as the petitioner’s claim for an award of 5 marks was been declined by the respondent, thus his rank had remained intact. The claim of students for a change of discipline is being governed by clause 4.9 of “Courses of Study 2019-2020”. It states that “(c) Change of the branch will be permitted strictly in the order of merit, in each category, as determined by CGPA at the end of the first year, subject to the limitation that the actual number of students in the third semester in the branch to which transfer is to be made should not exceed its sanctioned strength by more than 15% and the strength of the branch from which transfer is being sought does not fall below 85% of its sanctioned strength.”Thus the petitioner doesn’t stand fit and proper to the stated clause. An affidavit furnishing the mandated details in the form of an affidavit dated 24.11.2020 was directed by this Court vide order dated 06.11.2020 and accordingly the responding respondent filed an affidavit stating clearly that the above-mentioned subject-matter standard has been in force since the academic year 2014-15; while 15 students have been permitted to change the branch so far, in all of these cases. A table containing the minimum material data of these 15 candidates has also been produced by the institution; Annex-B to the affidavit also states; Change of branch was permitted only in the case where the student was otherwise qualified for admission to the branch (to which change was made at the time time of entry to IIT Delhi according to his/her JEE (Advanced) rank at the time of entry to IIT Delhi. In the statement of the learned Panel Counsel for the respondent-IIT, there is also the force that there are 5 or 6 candidates above the ranking of the petitioner and that their demand for a change of branch has not been favoured and therefore the petitioner should not attempt to march over those candidates who, while they are not before the court, are comparatively more meritorious.

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Impugned judgements are perverse and suffer from material irregularity: High Court of Jharkhand

This Court is of the considered view that it is for the prosecution to prove the seizure. Such an opinion was held by The Hon’ble High Court of Jharkhand before The Hon’ble Mrs. Justice Anubha Rawat Choudhary in the matter of Bhushan Mahto S/o Arjun Mahto and Anr Vs. The State of Jharkhand [Cr. Rev. No. 979 of 2012].  The facts of the case were associated with a criminal revision petition against a judgment passed by the learned Sessions Judge, Bokaro Camp at Tenughat dated 15.09.2012, wherein the petitioners were convicted for the charges under Section 47(a) of Excise Act. The counsel representing the petitioners contended that the impugned judgments were irrational and were unsustainable under the eyes of the law. It was also stated that five witnesses had deposed before the court out of 11 charge-sheeted witnesses. The counsel contended that the whole case rested upon the evidence of two police officers. The counsel submitted that during such situations conviction of the petitioners must be set-aside.  The counsel representing the State opposed the prayer and contended that the seizure witnesses who turned hostile, have not disputed their signature on the seizure list. The counsel stated that the impugned judgements did not call for any interference in revisional jurisdiction in the absence of any perversity and material irregularity. It was reported that upon checking a Maruti Van, the officers found a total of 10 cartons of wine. After investigation, a charge sheet was submitted against the petitioners for an offence under Section 414 IPC and 47(a) of the Excise Act. There was no material on record to show that the seized wine was stolen material as found out by the Trial Court, therefore offence under Section 414 of the Indian Penal Code was not made out.  Considering all submissions and facts The Hon’ble Court ruled out that “In view of the aforesaid facts and circumstances, the impugned judgements call for interference in revisional jurisdiction of this court in order to secure the ends of justice as the impugned judgements are perverse and suffer from material irregularity. Accordingly, the petitioners are entitled to benefit of doubt… This Criminal revision petition is accordingly allowed… The bailors are discharged of their liability under the bail bond.”

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 9712 1. Bhushan Mahto S o Arjun Mahto 2. Santosh Rajwar S o Late Raghunath Rajwar Both resident of Korambey P.O. & P.S. Gola District The State of Jharkhand … … Opposite Party … … CORAM :HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Mr. Rahul Dev Advocate Mr. Bishwambhar Shastri A.P.P. For the Petitioner s For the State Through Video Conferencing Heard Mr. Rahul Dev learned counsel appearing on behalf of the petitioners. 2. Heard Mr. Bishwambhar Shastri learned A.P.P. appearing on behalf of the opposite party State. This criminal revision petition is directed against the judgement dated 15.09.2012 passed by the learned Sessions Judge Bokaro Camp at Tenughat in Cr. Appeal No. 111 whereby the conviction of the petitioners for offence under Section 47(a) of Excise Act has been sustained but the sentence has been modified and reduced to three months simple imprisonment and fine of Rs. 500 with default clause. The petitioners were convicted vide judgement of conviction and order of sentence both dated 10.02.2011 passed by learned A.C.J.M. Bermo at Tenughat in G.R. case No. 554 of 2007 corresponding to T.R. Case No. 145 of 2011 for offence under Section 47(a) of Excise Act. The learned counsel for the petitioners has submitted that the impugned judgements passed by the learned courts below are perverse and cannot be sustained in the eyes of law. He further submits that out of 11 charge sheeted witnesses only five have deposed before the learned court below and out of them two seizure witnesses i.e. P.W. 1 and P.W. 3 have turned hostile although they have identified their signature on the seizure list which were marked as Exhibit 1 and 1 1. P.W 2 was also declared hostile. The learned counsel also submitted that P.W. 4 was the informant of the case and was a police officer. He submits that neither the seized articles have been produced exhibited nor the chemical examination report has been produced exhibited before the learned court below. He submits that in such circumstances neither the seizure has been proved nor the contents of the seized articles have been proved to be wine. The entire case rests on the evidence of two police officers i.e. P.W. 4 and P.W. 5. He submits that although the investigating officer has stated that the seized wine was tested after investigation but the test report has not been exhibited. The learned counsel for the petitioners submits that in such circumstances the conviction and sentence of the petitioners be set aside. The learned counsel appearing on behalf of the opposite party State on the other hand has opposed the prayer and has submitted that the learned courts below have scrutinized the materials on record and have recorded concurrent findings regarding the offence committed by the petitioners. He submits that the seizure witnesses who turned hostile have not disputed their signature on the seizure list and the learned court below has considered this aspect of the matter and has recorded that generally the seizure witnesses become hostile because they do not want to take enmity with the accused persons of the locality and there is no evidence on record that the accused persons had any inimical relation with the informant and the police officers examined in the case as P.W. 4 and P.W. 5 who have fully supported the prosecution case regarding seizure of 10 cartoons of wine from the Maruti van in which they were travelling during the date and time of occurrence. The learned counsel submits that in absence of any perversity and there being no material irregularity the impugned judgements do not call for any interference in revisional jurisdiction. After hearing the learned counsel for the parties this Court finds that as per the prosecution case on 10.07.2007 at about 8 pm on the basis of secret information the informant sub inspector of police along with armed forces went to NH 23 at Petarbar and checked a Maruti van and found total 10 cartoons of wine. There were two persons in the van who are the petitioners before this Court. Upon asking they disclosed their name and on demanding paper they could not show any document justifying the possession of 10 cartoons of wine. Wine was seized by the informant in presence of independent witnesses namely P.W. 1 and P.W. 3. After investigation charge sheet was submitted against the petitioners for offence under Section 414 IPC and 47(a) of the Excise Act and cognizance of offence was also taken under the same sections. During trial altogether five witnesses were examined. P.Ws. 1 2 and 3 were declared hostile by the prosecution. However P.W. 1 and 3 identified their signature on the seizure list which were marked as Exhibit 1 and 1 1 respectively. So far as P.W. 4 the informant of the case is concerned he has fully supported the prosecution case. He exhibited his written report as Exhibit 2. He also exhibited his signature and writing of the seizure list which were marked as Exhibit 3. During his cross examination he had stated that at the time of seizure he handed over the seized material to the officer in charge and had not inspected the materials kept inside the cartoons. He also stated that the seized materials were sealed at the time of their seizure. P.W. 5 is the investigating officer of the case. He has also supported the prosecution case. He had submitted charge sheet on 31.08.2007 under Section 414 of Indian Penal Code and under Section 47(a) of the Excise Act. He has identified the place of occurrence and has also stated that he had recorded the statement of the seizure witnesses who had supported the prosecution case. He has also deposed that upon seeing the police the petitioners jumped and tried to run away from the vehicle and were arrested by the police and upon checking 10 cartoons of wine were recovered. He has also stated that there were other witnesses who were police officials and who had given the statement in support of the prosecution case. However these witnesses have not been examined by the prosecution before the learned court below. Although the investigating officer of the case has recorded that the seized wines were got tested and after investigation he submitted the charge sheet but admittedly neither the test report nor the seized materials have been exhibited before the learned court below. 10. The learned trial court considered the materials on record and recorded that the seizure list shows that wine was recovered from the vehicle and was seized. The learned trial court also noted that the seizure list contains the signature of the accused persons and the seizure witnesses have identified their signature. It further recorded that P.W. 3 had also stated that Maruti van was taken to the police station by the police. The trial court also recorded that generally in a case brought by police witnesses become hostile because they do not want to take enmity of the accused persons of the locality and there is no evidence on record regarding any inimical relationship of the accused persons with the informant and police officers examined as P.W. 4 and 5. The learned trial court also recorded that there was no doubt that although the seized materials were not produced before the learned court but the same per se is not fatal to the prosecution case as there was no occasion for the police official witnesses to bring false case against the accused persons. So far as the offence under Section 414 of Indian Penal Code was concerned the learned trial court found that there was no material on record to show that the seized wine was stolen material and accordingly offence under Section 414 of Indian Penal Code was not made out. The learned trial court convicted the petitioners only under Section 47(a) of the Excise Act. So far as the learned appellate court is concerned the appellate court also upheld the conviction for offence under Section 47(a) of the Excise Act and rejected the argument of the petitioners on the point that liquors seized were not chemically examined and accordingly it was not proved to be wine on the ground that P.Ws. 4 and 5 have consistently stated that the seized material was wine and the brand of the wine was also stated by them and that the accused persons have not denied in their statement under Section 313 that the seized material was liquor. 13. This Court is of the considered view that the reasoning given by the learned appellate court to uphold the conviction even when neither the chemical examination report of the liquor was proved nor the seized articles were exhibited cannot be sustained merely on the oral evidence of P.Ws. 4and 5 and also on the ground that the petitioners have not denied in their statement under Section 313 of Code of Criminal Procedure that the seized material was liquor. This Court is of the considered view that it is for the prosecution to prove the seizure and also that the seized material was wine. Admittedly the chemical examination report has not been exhibited in the present case. This Court has also gone through the lower court records and found that the chemical examination report is not even available in the record except that the investigating officer of the case has recorded in the case diary that the chemical examination report was received. 14. Considering the totality of the facts and circumstances of this case this Court is of the considered view that the prosecution has not been able to prove the case beyond all reasonable doubt and merely because the accused have not stated in their statement under Section 313 of Code of Criminal Procedure that the seized material was something else the same could not have been a ground to sustain the conviction of the petitioners as has been done by the learned lower appellate court. The statement recorded under Section 313 of Code of Criminal Procedure is not evidence but is an explanation by the accused when the incriminating materials are put before him by the court and it is for the prosecution to prove the case beyond shadow of all reasonable doubts. This Court also finds that when the petitioners were produced before the learned court below on 11.07.2007 after their arrest they were remanded on the basis of forwarding report memo of arrest and seizure list and a prayer for sending the seized articles for verification by the Excise Inspector was made only on 23.08.2007 and the examination report is neither exhibited nor available in the record. In view of the aforesaid facts and circumstances the judgements call for in revisional jurisdiction of this court in order to secure the ends of justice as the impugned judgements are perverse and suffer from material irregularity. Accordingly the petitioners are entitled to benefit of doubt. 16. As a cumulative effect of the aforesaid findings the judgement of conviction and sentence dated 10.02.2011 passed by learned A.C.J.M. Bermo at Tenughat in G.R. case No. 5507 corresponding to T.R. Case No. 145 of 2011 as also the judgement dated 15.09.2012 passed by the learned Sessions Judge Bokaro Camp at Tenughat in Cr. Appeal No. 111 are hereby set aside. 17. This Criminal revision petition is accordingly allowed. 18. The bailors are discharged of their liability under the bail 19. Pending interlocutory applications if any are closed. 20. Let the lower court records be immediately sent back to the court concerned. 21. Let a copy of this order be communicated to the learned court below through ‘FAX Email’. Anubha Rawat Choudhary J.)

The provisions of the POSH Act squarely apply to students of a school: Calcutta High Court

The provisions of POSH Act are also applicable to girls students of a school and they will be protected by all of its provisions, following was observed by the division bench of Calcutta High Court comprising of Justice Harish Tandom and Justice Rabindranath Samanta upon relying of the definition as per section 2(a) of the Act in the case of PAWAN KUMAR NIROULA V. UNION OF INDIA AND ORS. [W.P. CT 86 of 2021] In the present case the petitioner who was a teacher appointed by Navodaya Vidyalaya Samiti had 67 police complaints of offences regarding sexual harassment against him and as a result of the same he was also arrested by Ravangla Police Station on 15.02.2020 by later released on bail. As a result of these events, the petitioner was placed under suspension till 10.02.2021. On 16.06.2020 the petitioner by an order was informed about the allegations against him after constitution of a committee as per Central Civil Services Rules 1965. The petitioner in the present case the petitioner argued that the charges against him are subject matters of Internal Complaints Committee. It was also argued that the POSH act will not apply to school students and submitted that the summary proceedings issued by Navadaya Vidyalaya Samiti into sexual harassment cases will have legal force relyin upon the SC judgment of Avinash Nagra V. Navadaya Vidyalaya Samiti. The Calcutta High Court after listening to the arguments from both sides rejected the contention that POSH act will not be applicable to aggrieved female students of the school relying on section 2(a) of the act as it held “in this context, the definition of ‘aggrieved woman’ as defined under Section 2 (a) of the Act may be referred. As per Section 2 (a) an aggrieved woman means in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent. That being so, the provisions of the Act squarely apply to the students of the school.” The Calcutta High Court also rejected the contention that the Internal Complaint Committee proceedings can be summary trials as per the provisions of the POSH Act placing reliance on section 4 of the act and stated that it is not in conformity with section 4 of the act because the Committee that the school constituted did not have an independent member as required by the act. As it held that it is axiomatic that the committee so formed by the respondent school authorities cannot be termed as an internal complaints committee as envisaged under the provisions of Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Though the committee was constituted in terms of the notification dated 20.12.1993 issued by Navadaya Vidyalaya Samiti, but, the committee dehors of the fundamental legal requirements under Section 4 of the Act, has now lost its statutory force. Hence succeeding the writ petition against the inquiry and suspension but clarifying upon the applicability of POSH Act.

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE THE HON’BLE JUSTICE HARISH TANDON THE HON’BLE JUSTICE RABINDRANATH SAMANTA WP.CT 86 OF 2021 Pawan Kumar Niroula Union of India and others. _ _ _ _ _ _ ….. for the Petitioner. ….. for the Respondent No.1. ….. for the Respondent Nos. 2 to 6. Mr.Suman Banerjee. Mr. Tapan Bhanja. Mr. Pulkesh Bajpayee. Heard On Judgment on Rabindranath Samanta J: 07.12.2021 24.01.2022 1. This writ petition has been preferred by the petitioner Pawan Kumar Niroula challenging the order dated 05.10.2021 passed by the Central Administrative Tribunal Kolkata Bench( hereinafter be referred to as the Tribunal) in O.A. No. 352 09 SKM 2021. 2. In the tribunal application the petitioner sought for the following reliefs : a) An order be passed directing the respondent authorities concerned to immediately allow the applicant to join his duties as TGT at Jawahar Navodaya Vidyalaya Ravangla South Sikkim b) An order be passed directing the respondent authorities forthwith set aside cancel withdraw rescind the decision of the respondent no. 2 to conduct summary trial into the allegation against the applicant vide reference no. PER 14032 2 2020 Estt III 13728 733 dated 16.06.2020 c) An order be passed directing the respondent authorities forthwith set aside cancel withdraw the order of suspension being Ref. No. PER.DP NVS PK Niroula 6170 dated 16.02.2020 and the subsequent orders of extension. 3. The Learned Tribunal by the order impugned permitted the respondent authorities to proceed with the order for summary trial and directed the petitioner to co operate with the authorities. 4. The seminal question involved in this writ petition is as to whether the order of suspension inflicted upon the petitioner is sustainable in law and the committee for summary trial pertaining allegations of sexual harassment against the petitioner has statutory force after enactment of The Sexual harassment of Women at Workplace Prevention Prohibition and Redressal) Act 2013 and amendment of relevant provisions of the Central Civil Services Classification Control and Appeal) Rules 1965 in the light of the Act. as under: 5. The background facts as projected by the petitioner and which are necessary for adjudication may be adumbrated The petitioner is a teacher and he was appointed by the respondent Navodaya vidyalaya Samiti on 17.11.1997 as TGT(Trained Graduate Teacher) Nepali. He was initially posted at Jawahar Navodaya Vidyalaya North Sikkim. Later he was transferred to Bihar in the year 2006 and in the year 2007 he was again transferred to North Sikkim. Lastly he was transferred to his present place of posting in the year 2011. On 15.02.2020 the respondent no. 4 the principal Jawahar Navodaya Vidyalaya Ravangla South Sikkim made a written complaint with the Officer in Charge of Ravangla Police Station to the effect that he received complaints from several students of Jawahar Navodaya Vidyalaya against the petitioner alleging commission of sexual harassment on 14.02.2020 and immediately thereafter he set up an internal committee to enquire into the complaints. It was also stated in the complaint that around 67 students complained in writing with the said committee that they were personally harassed by the petitioner. On such allegations the principal requested the Officer in Charge of the police station to take appropriate legal action against the On the basis of the aforesaid complaint Ravangla Police Station Case No. 02 of 2020 dated 15.02.2020 under Section 10 of the Protection of Children from Sexual Offences Act 2012 was registered against the petitioner for investigation. The petitioner was arrested by the Investigating Officer on 15.02.2020 but subsequently he was released on bail by the concerned Court. The petitioner was not informed about any disciplinary action taken against him but from unofficial sources he came to know that he was placed under suspension. However in reply to an Email dated 11.06.2020 seeking information regarding his status as he intended to join his duties the respondent no. 4 by communicating an order being No. PER.DP NVS(SHR) PK Niroula 6170 dated 16.02.2020 informed him that he was placed under suspension with effect from 15.02.2020 in terms of sub rule of Rule 10 of the Central Civil Services Classification Control and Appeal) Rules 1965. The petitioner being aggrieved by the order of suspension made an appeal before the Chairman of Navodaya Vidyalaya Samiti under Rule 23 of the Central Civil ServicesRules 1965 on 10.07.2020 but he is yet to know about its fate. 6. Initially the order of suspension inflicted upon the petitioner was from 15.02.2020 and it was extended for a period of 90 days. Even during the pendency of the appeal preferred by the petitioner before the Chairman of the said Samiti the order of suspension was extended for an another period of 90 days. Subsequently such suspension order was further extended for another term of 90 days and ultimately it was extended up to 10.02.2021. 7. By an order dated 16.06.2020 the respondent school authorities informed the petitioner that the respondent no. 2 constituted a committee for summary trial for into the allegations levelled against him dispensing with the regular disciplinary proceedings in terms of the Central Civil ServicesRules 1965. 8. It is contended by the petitioner that as the complaint against him is of the nature of sexual harassment at workplace the respondent school authorities should have constituted internal complaints committee and such committee shall be deemed to be the inquiring authority appointed by the disciplinary authority. Under such factual scenario the petitioner assails the impugned order on the grounds that the Learned Tribunal ought not to have directed the respondent authorities to proceed with the order of summary trial which has no in view of the advent of The Sexual Harassment of Women at Workplace Prevention Prohibition and Redressal) Act 2013. 9. Admittedly the Central Civil Services Rules 1965 are applicable to the teachers of Jawahar Nabadaya Vidayalaya Ravangla South Sikkim which is wholly financially aided by the Central Government. 10. As it is evident from the documents on record on a written complaint made by the respondent no. 4 with the local police station one Ravangla P.S Case no. 2 dated 15.02.2020 under Section 10 of POCSO Act was launched for investigation against the petitioner and he was arrested on 15.02.2020. On the following date i.e. on 16.02.2020 the school authority by an order dated 16.02.2020 placed the petitioner under suspension on the ground of his detention. 11. Learned Counsel appearing for the petitioner has argued that the order of suspension inflicted by the respondent school authorities smacks of illegality as the suspension order was passed while the petitioner was detained in custody for 24 hours. In such context Learned Counsel submits that in terms of Rule 10(a) of the Central Civil Services Rules 1965a government servant shall be deemed to have been placed under suspension by an order of appointing authority with effect from the date of his detention if he is detained in custody whether on a criminal charge or otherwise for a period exceeding forty eight hours. It is not in dispute that the respondent authorities placed the petitioner under suspension within 24 hours of his detention. That being so the order of suspension is illegal ab initio as it was made in gross violation of Rule 10(2) of the CCS CCA Rules. 12. What we find from the documents on record the order of suspension made on 16.02.2020 was extended from time to time and finally it was extended till 10.02.2021. Amid such continuing suspension the respondent school authorities by an order dated 16.06.2020 constituted the for summary trial to enquire into the allegations of sexual harassment against the petitioner. In the decision in the case of Ajay Kumar Choudhary Vs Union of India reported in7 SCC 291 the Hon’ble Apex Court has held as under: “Suspension specially preceeding the formulation of charges is essentially transitory or temporary in nature and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record this would render it punitive in nature. Departmental disciplinary proceedings invariably commence with delay are plagued with procrastination prior and posts the drawing up of the memorandum of charges and eventually culminate after even longer delay. Protracted periods of suspension renewal thereof have regrettably become the norm and not the exception that they ought to be. The suspended person suffering ignominy of insinuations the scorn of society and the derision of his department has to codure this excruciation even before he charged with misdemeanour indiscretion or offence. His torment is his knowledge that if and when changed it will take an inquisition or inquiry to come to its culmination that is to determine his innocence or inquiry. Hence it is directed that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges charge sheet is not served on the delinquent officer employee the memorandum charges charge sheet is served a reasoned order must be passed for the extension of suspension.” 14. After the petitioner was under suspension for more than 100 days he without being served with any charge sheet was handed down the order dated 16.06.2020 informing that a committee was constituted for summary trial to enquire into the complaints against him. In view of the law declared by the Hon’ble Apex Court in the case of Ajay Kumar Choudhary supra the order of suspension exceeding 90 days without any justifiable ground is vitiated with illegalities. It is not in dispute that the petitioner preferred an appeal against the order of suspension under Rule 23 of CCS CCA Rules on 09.07.2020 but the authority turned deaf ear to the appeal. Such acts on the part of the concerned respondent authority reek of malafides. Under such factual matrix the order of suspension which is illegal ab initio and its extension did not conform to the legal principles enunciated by the Hon’ble Apex Court in the decision of the Ajay Kumar Choudhary supra is liable to be quashed. 16. Learned Counsel appearing for the respondent school authorities has submitted that the notification dated 20.12.1993 issued by the Navadaya Vidyalaya Samiti prescribing the constitution of committee for summary trial to enquire into allegations of sexual harassment against any teacher of the school carries legal force as the notification has been upheld by the Hon’ble Apex Court in the decision in the case of Avinash Nagra Vs Navadaya Vidyalaya Samiti reported in JT 1996SC 461. 17. Be that as it may the legal scenario as to dealing with the complaints of sexual harassment at workplace has undergone a sea change after the law declared by the Hon’ble Supreme Court in the case of Vishaka Vs State of Rajasthan reported in 6 SCC 241 and after enactment of The Sexual Harassment of Women at Workplace Act 2013. In the decision in Vishaka the Hon’ble Apex Court directed that every organisation public or private shall have to constitute an internal complaints committee to enquire into any complaint of sexual harassment made by any aggrieved woman. In a later decision in the case of Medha Kotwal Lele and Others Vs Union of India and Ors reported in1 SCCC 297 the Hon’ble Supreme Court further passed the similar directive as to formation of internal complaints committee at every workplace. 18. However the Sexual Harassment of Women at Workplace Act 2013 which came into force on 09.12.2013 now occupies the field and the Act contains a mechanism to deal with complaints of sexual harassment. In this regard it will be apposite to refer to Section 4 of the Act. Section 4 of the Act reads as under: “4. Constitution of Internal Complaints Committee.Every employer of a workplace shall by an order in writing constitute a to be known as the “Internal Complaints Committee”. Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub divisional level the Internal Committee shall be constituted at all administrative units or offices. 2) The Internal Committee consist of the following members to be nominated by the employer namely: a) a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees: Provided that in case a senior level woman employee is not available the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub section(1) : Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation b) not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge one member from amongst non or associations committed to the cause of women or a person familiar with the issues relating to sexual Provided that at least one half of the total Members so nominated shall be women. 3) The Presiding Officer and every Member of the Internal Committee shall hold office for such period not exceeding three years from the date of their nomination as may be specified by the 4) The Member appointed from amongst the non governmental organisations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee by the employer as may be prescribed. 5) Where the Presiding Officer or any Member of the Internal Committee a) contravenes the provisions of section 16 or b) has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him or he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him or d) has so abused his position as to render his continuance in office prejudicial to the public interest such Presiding Officer or Member as the case may be shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.” In order to implement section 4 of the Act in letter and spirit and to make the internal complaints committee viable and independent the Hon’ble Apex Court in a recent decision in the case of Punjab and Sind Bank and Others Vs Durgesh Kuwar reported in SCC Online SC 774 has observed at paragraph 22 that clause of Section 4 indicates that one member of the internal complaints committee has to be drawn from amongst a non governmental organisation or association committed to the cause of women or a person familiar with issues relating to sexual harassment. The purpose of having such a member is to ensure the presence of an independent person who can aid advise and assist the committee and thereby it obviates an institutional bias. 20. The committee in question for summary trial as constituted by respondent school authorities comprises the following members: 1. Shri Vikram Joshi D.C(Pers) NVS Hqrs. Noida 2. Shri N. Haribabu AC NVS RO Shillong Member 3. Smt. Sarita AC NVS RO Lucknow Member 21. As discussed above it is axiomatic that the committee so formed by the respondent school authorities cannot be termed as an internal complaints committee as envisaged under the provisions of Section 4 of the Sexual Harassment of Women at Workplace Prevention Prohibition and Redressal) Act 2013. Though the committee was constituted in terms of the notification dated 20.12.1993 issued by Navadaya Vidyalaya Samiti but the committee dehors of the fundamental legal requirements under Section 4 of the Act has now lost its statutory force. 22. Learned Counsel for the respondent school authorities has further argued that since the allegations of sexual harassment have been made by the girl students of the school the provisions of the aforesaid Act will not be applicable to the respondent school. In this context the definition of ‘aggrieved woman’ as defined under Section 2of the Act may be referred. As per Section 2an aggrieved woman means in relation to a workplace a woman of any age whether employed or not who alleges to have been subjected to any act of sexual harassment by the respondent. That being so the provisions of the Act squarely apply to the students of the 24. Now we may advert to another relevant provision of the aforesaid Act. Section 11 of the Sexual Harrasment of Women at Workplace Prevention Prohibition and Redressal) Act 2013 inter alia provides that the internal complaints committee shall where the respondent is an employee proceed to make inquiry into the complaint in accordance with the provisions of the service rules respondent. After the Sexual Harrasment of Women at Workplace Prevention Prohibition and Redressal) Act 2013 came into force the relevant service rules viz Central Civil Services Conduct) Rules 1964 and the Central Civil Services Classification Control and Appeal) Rules 1965 were suitably amended. Rule 3C of Central Civil Services Conduct) Rules 1964 amongst others reads as under: 1. No Government servant shall indulge in any act of sexual harassment of any woman at any workplace. 2. Every government servant who is in charge of a workplace shall take appropriate steps to prevent sexual harassment of any woman at the workplace. 25. For the purpose of this rule ‘sexual harassment’ includes anyone or more of the following acts or behaviournamely: Physical Contact and advances or A demand or request for sexual favours or iii) Making sexually coloured remarks or iv) Showing pornography or Any other unwelcome physical verbal non verbal conduct of a sexual nature. 26. On the other hand the amended Rule 14 of the Central Civil Services Rules 1965 inter alia enjoins as follows: Where there is a complaint of sexual harassment within the meaning of Rule 3C of the Central Civil Conduct) Rules 1964 the complaints each ministry or department or office for inquiring into such complaints shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of this rule and the complaints committee shall hold if separate procedure has not been prescribed for the complaints committee for holding the enquiry into the complaints of sexual harassment the inquiry as far as practicable in accordance with the procedure laid down in these In view of the legal position as above the committee constituted for summary trial without adhering to the mandatory requirements of the law and the rules as quoted above loses its legal force. Therefore viewed from all aspects the impugned order passed by the Learned Tribunal holding the legality of the committee for summary trial is not sustainable in law. 28. Therefore in view of the observations as above the question as raised for resolution is answered in the negative. In the result the writ petition succeeds. 30. The impugned order dated 05.10.2021 passed by the Learned Central Administrative Tribunal Kolkata Bench in O.A.No. 352 9 SKM 2021 is hereby set aside. being No. O.A.No. 352 9 SKM 2021 is allowed. 31. The order of suspension against the petitioner vide order dated 16.02.2020 made by the respondent no. 4 and extended from time to time and the order dated 16.06.2020 by which the committee for summary trial was constituted are hereby quashed. 32. The respondent school authorities are directed to allow the petitioner to join his duties within one month from date. They are also directed to pay all the back wages to the petitioner within two months from the date of In view of the above the writ petition stands disposed joining of his duties. of. 34. No order as to costs. 35. Urgent certified website copies of this judgment if applied for be given to the parties upon compliance with all requisite formalities. Rabindranath Samanta J.) I agree Harish Tandon J.)

Bail granted in case of murder by means of witchcraft due to lack of proper evidences: High Court of Jharkhand

In the present case, an appeal is preferred against the order of conviction and sentence dated 27.07.2015 whereunder the appellants have been convicted for the offences punishable under Sections 302/34 and 201/34 of I.P.C. and have been sentenced to undergo S.I. for life and a fine of Rs. 10,000/- for the offence under Section 302/34 of I.P.C. No separate sentence has been passed for the offence under Section 201/34 of I.P.C. A division bench comprising of Justice Rongon Mukhopadhyay and  Justice Rajesh Kumar adjudicating the matter of Arti v. The State of Jharkhand(Criminal Appeal (D.B.) No. 1013 of 2015) dealt with the issue of whether to grant bail to the accused or not. According to the prosecution, an FIR was filed by Jairam Munda stating that the son of the informant had gone to his inlaws’ place on 05.02.2013 at village Panchpadwa in the district of Lohardaga. On 06.02.2013 at about 8 AM, he came to know that his son has been murdered by Boda Munda @ Suman Munda, Birsa Munda @ Runka Munda, Jama Munda @ Sushil Munda and Arti Kumari @ Sukar Kumari. At this, he along with his another son reached Panchpadwa, where he found his son having been murdered and thrown at Panchpadwa Tongri. The reason for the occurrence is that the son of the -2- informant – Mansukh Munda used to remain sick and in spite of being treated at various places, he was not getting well. It has been alleged that the informant and his family members were thinking of taking Mansukh Munda to Devas for treatment and this intention was disclosed to his brother Hadu Munda and on this issue there appeared a fissure in the relationship between the families of the informant and Hadu Munda. It has been alleged that the family of Hadu Munda left for Panchpadwa. The informant had sent his son to bring them back, but they did not return. On 28.01.2013, the son of the informant Markas Munda had died and there was friction between both sides for practicing witchcraft which resulted in the occurrence. The informant could come to know that his son Markas Munda had gone to the house of Bauda Munda on 05.02.2013 and near the doorstop, Arti Kumari had started assaulting him with fists, slaps, and danda. It has been alleged that all the accused persons had dragged Markas Munda towards the jungle and assaulted him on his head with lathi and stones which resulted in his death. It has also been stated that his relation Baura Munda has seen the occurrence. Based on the facts, a police institute the case under Section 302 &amp; 201/34 of I.P.C. in which after investigation charge-sheet was submitted leading to the taking of cognizance and after the case was committed to the court of Sessions, the charge was framed for the offences punishable under Sections 302/34 &amp; 201/34 of I.P.C. and under Section 3 of the Prevention of Witch (Daain) Practices Act, 1999, to which the accused pleaded not guilty and claimed to be tried. The appellant stated that the prosecution has miserably failed to prove its case beyond all reasonable doubt. It is submitted that except PW1 and 2 there is no eyewitnesses to the occurrence and their testimony suffers major discrepancies. According to PW1 &amp; 2 stated that it was a dark night and there is no electricity in the village and as such it would have been absolutely impossible to have identified the assailants. The claims of PW1 and 2 are is improbable and unbelievable if his version is taken to be true to the effect that he claims to have seen the accused persons committing the murder of his son-in-law, but neither had he tried to save him nor did he inform this matter to any of the villagers immediately. Learned counsel also submits that as per P.W. 2, the incident is said to have taken place near the house of P.W. 1, but the I.O. has disclosed that the distance between the place of occurrence and the house of P.W. 1 is about half a km. He further submits that nothing -6- has been stated as to whether P.W. 1 and P.W. 2 had followed them which further nullifies the story created by P.W. 1 and P.W. 2 to implicate the appellants. Learned counsel submits that as per P.W. 1, both the sides were on inimical terms and hence the false implication of the appellant cannot be ruled out. On such parameters, learned counsel for the appellants has stated that the present appeal is allowed. The Opposite part submitted that the eye-witnesses of the occurrence and their evidence are cogent, convincing, and believable, and therefore, conviction of the appellants under Section 302/34 and 201/34 of I.P.C. has rightly been done. The Court held that” The prosecution has tried to build an edifice based on the evidence of P.W. 1 and P.W. 2 who have started to have seen the occurrence relating to the son of the informant namely, Markas Munda being subjected to assault by the appellants with stone and tangi. However, the edifice crumbles once the cross-examination of P.W. 1 and P.W. 2 is taken into consideration. P.W. 1 in very categorical terms has stated in his cross-examination that it was difficult for the persons to be recognized who was standing at a distance on account of the darkness. He has further admitted that it was a dark night. According to the evidence of P.W. 1, he out of fear had returned back to his residence which conduct appears to be totally contrary to what one would expect in such a situation when the son-in-law of the P.W. 1 is being done to death and he neither informs the villagers nor raises any alarm, but rushes to his house and stays put. On a court question, he has stated that from the place of occurrence, he was at a distance of 150 feet and considering the darkness which had engulfed the area and the distance from where the incident is said to have been seen by P.W. 1, it totally nullifies the prosecution case with respect to the identification of the appellants being the assailants. Similarly, the evidence of P.W. 2 is fraught with major discrepancies as he has stated that he had not seen any person in the place of occurrence and that he had never disclosed the incident to the villagers. This witness has also admitted that there is no electricity in the village. He has also stated about total darkness The evidence of the other witnesses do not energise the prosecution case and the falsity of the allegations levelled against the appellants lie threadbare on a dissection of the evidence of the so-called eye-witnesses P.W. 1 and P.W. 2 as has been taken note of earlier. Click here for the Judgement

Criminal AppealNo. 10115 Against the judgment and order of conviction and sentence dated 27.07.2015 by the learned Sessions Judge Lohardaga in Sessions Trial No. 413. 1.Arti @ Aarti @ Sukar Kumari 2.Jama @ Sushil Munda 3.Birsa Munda @ Runka Munda 4.Boda Munda @ Suman Munda … … Appellants The State of Jharkhand For the Appellant For the Respondent Mr. Birendra Kumar Advocate Mr. Vijay Kumar Sinha Advocate Mr. Shekhar Sinha P.P. Present: HON BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE RAJESH KUMAR Heard Mr. Birendra Kumar learned counsel for the appellants and Mr. Shekhar Sinha learned P.P. for the State. This appeal is directed against the judgment and order of conviction and sentence dated 27.07.2015passed by the learned Sessions Judge Lohardaga in Sessions Trial No. 44 of 2013 whereby and whereunder the appellants have been convicted for the offences punishable under Sections 302 34 and 201 34 of I.P.C. and have been sentenced to undergo S.I. for life and a fine of Rs. 10 000 for the offence under Section 302 34 of I.P.C. No separate sentence has been passed for the offence under Section 201 34 of I.P.C. The prosecution story arising out of an FIR instituted by Jairam Munda is to the effect that the son of the informant had gone to his in laws’ place on 05.02.2013 at village Panchpadwa in the district of Lohardaga. On 06.02.2013 at about 8 AM he came to know that his son has been murdered by Boda Munda @ Suman Munda Birsa Munda @ Runka Munda Jama Munda @ Sushil Munda and Arti Kumari @ Sukar Kumari. At this he along with his another son reached Panchpadwa where he found his son having been murdered and thrown at Panchpadwa Tongri. The reason for the occurrence is that the son of the 2 informant Mansukh Munda used to remain sick and in spite of being treated at various places he was not getting well. It has been alleged that the informant and his family members were thinking of taking Mansukh Munda to Devas for treatment and this intention was disclosed to his brother Hadu Munda and on this issue there appeared a fissure in the relationship between the families of the informant and Hadu Munda. It has been alleged that the family of Hadu Munda left for Panchpadwa. The informant had sent his son to bring them back but they did not return. On 28.01.2013 the son of the informant Markas Munda had died and there was friction between both the sides for practicing witchcraft which resulted in the occurrence. The informant could came to know that his son Markas Munda had gone to the house of Bauda Munda on 05.02.2013 and near the door stop Arti Kumari had started assaulting him with fists slaps and danda. It has been alleged that all the accused persons had dragged Markas Munda towards the jungle and assaulted him on his head with lathi and stones which resulted in his death. It has also been stated that his relation Baura Munda has seen the occurrence. Based on the aforesaid allegations Jobang P. S. Case No. 2 of 2013 was instituted under Section 302 & 201 34 of I.P.C. in which after investigation charge sheet was submitted leading to taking of cognizance and after the case was committed to the court of Sessions charge was framed for the offences punishable under Sections 302 34 & 201 34 of I.P.C. and under Section 3 of the Prevention of Witch Practices Act 1999 to which the accused pleaded not guilty and claimed to be tried. In course of trial 7 witnesses were examined by the prosecution. P.W. 1 Boda Munda @ Bauda Munda has stated that the incident is of 6 months back. He had gone to Kisko to prepare his Aadhar Card and he returned back to his house from Kisko at about 8 PM. He has stated that while returning home he has seen his son in law Markas Munda being assaulted with lathi and danda by 4 5 persons. He has further stated that after assaulting him he was dragged towards the forest where he was hit by a big stone leading to his death. He has further stated that the persons involved are Birsa Munda @ Runka Munda Bora Munda @ Suman Munda Jama Munda @ Sushil Munda P.W. 2 Sohrai Munda has stated that on the date of occurrence 3 and Aarti Kumari @ Sukar Kumari. He has stated that thereafter on account of fear he had gone to his residence. In cross examination this witness has stated that it was dark when the incident had taken place. He has further deposed that due to darkness persons who were standing at a distance could not be recognized. He has also stated that he does not know as to when his son in law had come to his house. After coming from Kisko he had straightway gone to his house. He has further stated that all the accused are from his village with whom this witness is not on very friendly terms. Replying to a court question this witness has stated that he was at a distance of 150 yards from the place of occurrence. he along with P.W. 1 was returning from Kisko to their respective homes. On reaching the village they heard the sound of shouting and when they reached near the house of P.W. 1 they had seen Markas Munda being assaulted by the accused persons. He has further stated that the accused persons took Markas Munda towards Tongri and thereafter Markas Munda was assaulted on his head with a big stone and he and P.W. 1 fled away from the place of occurrence and reached their respective homes. He has stated that on the next date the father of Markas Munda was informed. In cross examination this witness has stated that it was total darkness at the time of returning home from Kisko Block. He has admitted that there is no electricity in his village. He has further stated that while entering his village his house is situated before the house of P.W. 1. He has further stated that the incident was never disclosed by them to the villagers. He has also deposed that he had not seen any person in the place of occurrence. occurrence he was in the house and on next date Sohrai Munda informed on phone that his elder brother has been done to death. He has also stated that on hearing such information he had gone to village Panchpadwa and had seen the dead body of his brother. Sohrai had disclosed to him about the accused persons committing the murder of his brother. He has also stated that the reason for the occurrence is that Devas had told him that it was on account of his uncle Hadu Munda that his brother Mansukh Munda was sick. P.W. 3 Ram Nath Munda has stated that on the date of 4 P.W. 4 Dr. Pranav Kumar was posted as a Medical Officer on 07.02.2013 in the Department of Leprosy where he conducted autopsy on the dead body of Markas Munda. This witness has found the following External Injuries: Lacerated wound on left side of forehead size 2 inch x 1 inch x up to bone deep. Fracture of left mandible. iii) Extraction of upper four teeth. iv) Blood stain on nose and ear. Internal Injuries: A. Head and Neck: Brain matter lacerated and pale on section. B. Thoracic cavity: Lungs intact and pale on section heart Intact right chamber full and left chamber empty. C. Abdominal cavity: Liver spleen and kidneys were intact and pale on cut section Stomach contains semi digested food particle and gas large intestine contains faecal matter. All above injuries were ante morten in nature and time elapsed since death 6 to 36 hours." The cause of death according to this witness was due to Haemorrhage and shock caused by hard and blunt substance. This witness has proved the post mortem report which has been marked as Exhibit 1. P.W. 5 Dedo Munda is a hearsay witness. P.W. 6 Jairam Munda is the informant who has stated that on the date of occurrence he was at his home and his son Markas Munda had gone to his in laws’ place at village Panchpadwa. He has also stated that his son had gone to call the brother of the informant namely Hadu Munda. He has also stated that his son was assaulted and done to death by the accused persons. The reasons for the occurrence according to this witness was that he and his brother were not on good terms. In cross examination it has been stated that there was no enmity with the accused Bora Munda Jama Munda and Birsa Munda and they were on friendly terms with him. 5 It has been stated by the learned counsel for the appellants that the 11. P.W. 7 Supa Kongari has deposed that on 06.02.2013 he was posted as Sub Inspector on Jobang Police Station. He has recorded the Fard Beyan of Jairam Munda which has been proved and marked as Exhibit 2. The formal FIR is in his hand writing and signature which has been marked as Exhibit 3. He has further stated that after taking over investigation he had recorded the re statement of the informant and had thereafter taken the statement of Baura Munda Sohrai Munda Dedo Munda and Ram Nath Munda. This witness has inspected the place of occurrence which is at village Panchpadwa Tongri which is an isolated place surrounded by jungle and bushes. On 17.02.2013 he had obtained the post mortem report and on direction of his superior officials he had submitted charge sheet. In cross examination this witness has stated that he had not seized any article during investigation. He has also stated that the house of Bauda Munda is at a distance of half km. from the place of occurrence. On a court question he has stated that inquest report has been misplaced and he also could not recover the big stone which was used in the commission of the murder. prosecution has miserably failed to prove its case beyond all reasonable doubt. Learned counsel submits that save and except P.W. 1 and 2 there are no eye witnesses to the occurrence and the evidence of P.W. 1 and P.W. 2 suffers from major discrepancies which itself makes the identification of the appellants as the perpetrators of the offence doubtful. Learned counsel submits that the P.W. 1 and P.W. 2 had stated that it was a dark night and there is no electricity in the village and as such it would have been absolutely impossible to have identified the assailants. Learned counsel further while referring to the evidence of P.W. 1 submits that the conduct of P.W. 1 is improbable and unbelievable if his version is taken to be true to the effect that he claims to have seen the accused persons committing the murder of his son in law but neither had he tried to save him nor did he inform this matter to any of the villagers immediately. Learned counsel also submits that as per P.W. 2 the incident is said to have taken place near the house of P.W. 1 but the I.O. has disclosed that the distance between the place of occurrence and the house of P.W. 1 is about half a km. He further submits that nothing 6 has been stated as to whether P.W. 1 and P.W. 2 had followed them which further nullifies the story created by P.W. 1 and P.W. 2 to implicate the appellants. Learned counsel submits that as per P.W. 1 both the sides were on inimical terms and hence the false implication of the appellant cannot be ruled out. On such parameters learned counsel for the appellants has stated that the present appeal be allowed. 13. Mr. Shekhar Sinha learned P.P. for the State on the other hand while relying on the evidence of P.W. 1 and P.W. 2 has stated that they are the eye witnesses of the occurrence and their evidence is cogent convincing and believable and therefore conviction of the appellants under Section 302 34 and 201 34 of I.P.C. has rightly been done. He therefore prays that the present appeal be dismissed. 14. We have heard the rival submissions and have also gone through the Lower Court Records. The prosecution has tried to build an edifice based on the evidence of P.W. 1 and P.W. 2 who have stated to have seen the occurrence relating to the son of the informant namely Markas Munda being subjected to assault by the appellants with stone and tangi. However the edifice crumbles once the cross examination of P.W. 1 and P.W. 2 is taken into consideration. P.W. 1 in very categorical terms has stated in his cross examination that it was difficult for the persons to be recognized who were standing at a distance on account of the darkness. He has further admitted that it was a dark night. According to the evidence of P.W. 1 he out of fear had returned back to his residence which conduct appears to be totally contrary to what one would expect in such a situation when the son in law of the P.W. 1 is being done to death and he neither informs the villagers nor raises any alarm but rushes to his house and stays put. On a court question he has stated that from the place of occurrence he was at a distance of 150 feet and considering the darkness which had engulfed the area and the distance from where the incident is said to have been seen by P.W. 1 it totally nullifies the prosecution case with respect to the identification of the appellants being the assailants. Similarly the evidence of P.W. 2 is fraught with major discrepancies as he has stated that he had not seen any 7 person in the place of occurrence and that he had never disclosed the incident to the villagers. This witness has also admitted that there is no electricity in the village. He has also stated about total darkness when he was returning home from Kisko Block. The identification of the appellants by P.W. 1 also is nullified if the distance between the place of occurrence and the house of P.W. 1 is taken into consideration as disclosed by P.W. 7 the Investigating Officer which is about a half km and coupled with the darkness the identification of the appellants by P.W. 2 therefore seems to be an absurd story created by P.W. 2. It is to be noted herein that P.W. 1 has stated about he being on inimical terms with the appellants and therefore the false implication of the appellants also cannot be ruled out. The Investigating Officer has failed to seize the weapon of assault or the stone with which the deceased was purportedly done to death. The evidence of the other witnesses do not energise the prosecution case and the falsity of the allegations levelled against the appellants lie threadbare on a dissection of the evidence of the so called eye witnesses P.W. 1 and P.W. 2 as has been taken note of earlier. The prosecution therefore having miserably failed to prove its case beyond all reasonable doubt the appellants deserves to be acquitted from the charges against them. In such circumstances this appeal stands allowed and the impugned judgment and order of conviction and sentence dated 27.07.2015 and 31.07.2015 respectively passed by the learned Sessions Judge Lohardaga in Sessions Trial No. 413 are hereby set aside. Since the appellant no. 1 is on bail she is discharged from the liability of her bail bonds. As regards appellant nos. 2 to 4 are concerned they are directed to be released immediately and forthwith if not wanted in any other case. This appeal stands allowed. Rongon Mukhopadhyay J.) Rajesh Kumar J.) Jharkhand High Court at Ranchi The 28th day of July 2021 R.Shekhar NAFR Cp.3

Right to arbitration will not be rejected unless a concluded settlement is placed before the court: Supreme Court of India

The arbitration clause cannot be invoked in view of the settlement ending in the resolution of the dispute unless there is material brought on record to indicate the nature of settlement entered into between the parties. This auspicious judgment was passed by the Supreme Court of India in the matter of V. SREENIVASA REDDY V. B.L. RATHNAMMA [SLP (CIVIL) NO.11036 OF 2019] by Honourable Chief Justice of India S.A. Bobde, Honourable Justice A. S. Bopanna, and Honourable Justice V.Ramasubramanian. The petition before the court was taken back since it was contended that the parties had settled the matter outside the court. However, the parties continued to be in dispute regarding the issue and the matter and filed subsequent petitions demanding re-admission of petition or appointment of an arbitrator. Later, the HC recorded that since the matter has been settled outside the court and the Chief Justice of HC opined that since the matter was already settled it is noted in judicial order that this would be sufficient to decline the request of appointment of an arbitrator and hence the application was dismissed. The appellant is assailing the order passed by the High Court of Hyderabad in an Arbitration Application filed under Section 11(5) and (6) of the Arbitration and Conciliation Act, 1996 for seeking appointment of a sole Arbitrator to resolve the dispute between the parties. When a notice for balance payment sent the appellant raised certain issues relating to the transaction. In that background, the respondent got issued a notice informing that the agreement stood canceled and the advance amount paid is forfeited. Now the dispute was to be resolved by an arbitrator and when it did not happen a petition was filed in HC. In this regard, the SC observed that “The entire issue would revolve around the factual aspect involved in the instant case to come to a conclusion as to whether there was a concluded settlement between the parties and therefore in that circumstance, whether it should be construed that the dispute which had arisen between the parties should be deemed as not subsisting for resolution through arbitration.“ Court also added, “In the said background there is no definite material on record to indicate that there was a concluded settlement between the parties based on which the petition was disposed and, therefore there is no reason to hold that there is no dispute which required resolution through arbitration; nor are we in a position to hold that there is Novation of the earlier agreement. Though the learned Judge of the High Court of Karnataka disposed of the petition under Section 11(6) of the Act, 1996 by recording the submission that the matter has been settled out of court, the so-called settlement has not been recorded nor made a part of the order so as to bind the parties and to indicate that the dispute had been resolved and had accordingly erased the original dispute or amounted to Novation. That apart, no material is placed on record to show that the settlement had been reduced into writing and had been placed before the Court when the petition was disposed of so as to indicate that the right to arbitration under the original agreement cannot be claimed. If that be the position, the rejection of the IA also on the ground that the original order had merely recorded the settlement will not indicate that a concluded settlement was placed before the court.” Thus, the Apex Court stated, “It cannot be accepted in the present facts that there was an abandonment of part of any claim nor was there a conclusive adjudication of the dispute between the same parties on merits to constitute res-judicata. As already indicated above, the so-called settlement has neither been recorded in the earlier proceedings nor any document brought on record to indicate that factually the settlement had taken place so as to wipe out the original dispute. In such circumstances, a party to the arbitration agreement contending that there was a dispute amongst them cannot be left without a forum for the resolution of the dispute by taking a hyper-technical view of the matter. In any event, whether the dispute which had arisen at the first instance has been settled: if the dispute subsisted, whether the claim is within the period of limitation, the nature of relief if any, and all other contention on merits are to be considered in the arbitral proceedings.“

2. The appellant is before this Court assailing the order dated 31.12.2018 passed by the High Court of Judicature at Hyderabad in Arbitration Application No.52 2016 filed under Section 11(5) and of the Arbitration and Conciliation Act 1996 of the Act 1996 in CMP No.228 2015 was filed. When the said petition was listed for consideration on 02.03.2016 the learned senior counsel for the appellant with the was noticed that a petition seeking appointment of the Arbitrator was to be filed before the High Court of Judicature at Hyderabad. The learned Judge through the order dated 02.03.2016 placed the submission on record and dismissed the petition as withdrawn with the appropriate court in accordance with law. It is in The said application was opposed by the respondent referring to the earlier proceedings noted above more particularly the disposal of the first application by recording that the matter is settled between the parties. In the said situation the learned Chief Justice High Court of Judicature at Hyderabad though the Karnataka High Court had permitted the appropriate Court the same is not seen to be one would continue to evidence that the Karnataka High Court had recorded the submission on behalf of the settled out of the court. In that circumstance the having already been settled out of the court which is the request for appointment of Arbitrator. Accordingly aspect involved in the instant case to come to a conclusion as to whether there was a concluded settlement between the parties after the application in CMP No.297 2009 was filed and therefore in that circumstance whether it should be construed that the deemed as not subsisting for resolution through 05.07.2011 in CMP No.297 2009 which reads as “The counsel for the petitioner and the In any event the application does not merit settlement of the matter out of court Both the aforestated orders do not throw light on the nature of the settlement or the conclusiveness of the 11. On the other hand the settlement proposed itself not being finalized not just the original dispute had remained unresolved but the non­settlement of the 11(6) of Act 1996 seeking appointment of Arbitrator to appointment of Arbitrator was to be made by the High Court of Judicature at Hyderabad the petition in CMP No.228 2015 was withdrawn with liberty and the No.52 2016 a detailed affidavit was filed by the appellant. The statement contained in paragraphs 18 and 22 explains the crux of the matter which read as Tahsildar the Respondent herein was duty­ per the terms of Agreement of Sale dated 23.11.2006. However the Respondent once and again has avoided complying with the the efforts put forth by me with the help of mediators who have helped in settling the differences during the pendency of C.M.P No.297 of 2009 have also gone in vain. The Applicant herein undertook extensive oral discussions and visited the Respondent on numerous occasions seeking to settle dispute Respondent though reported intention to settle before the Hon’ble High Court the same were not acted upon. It is or contended by the Respondent in the said 22. I submit that pursuant to the said order Respondent herein on 09.03.2016 informing 23.11.2006. I submit that the Respondent despite the service of said notice had not consented to the appointment of the sole submit that I am therefore constrained to application u s 11(2) & of the Arbitration and Conciliation Act 1996 praying for the by this Hon’ble Court. A copy of the notice said clause and as such any dispute that agreement in any manner is referable to Arbitration to resolve such dispute. Therefore the dispute which arose out of the failure to Arbitration. In the alternative it is submitted agreed to revives the original dispute which arose between the parties as the ‘dispute’ 13. The learned Chief Justice High Court of the sworn statements to the effect that the settlement original dispute which requires resolution through 14. We note that in the said background there is no the petition was disposed and therefore there is no reason to hold that there is no dispute which required hold that there is Novation of the earlier agreement indicate that the dispute had been resolved and had accordingly erased the original dispute or amounted to was disposed of so as to indicate that the right to arbitration under the original agreement cannot be claimed. If that be the position the rejection of the IA also on the ground that the original order had merely 15. If that be the position the observation of the learned Chief Justice High Court of Judicature at Hyderabad that the settlement was recorded by the Karnataka High Court and therefore it would not be of that order does not stand to reason. Further while referring to the aspect that the application was filed the High Court of Karnataka and though noting that liberty had been granted through the order dated 02.03.2016 it is observed that such permission to withdraw with liberty was not with the consent of the respondent. However what is to be noticed from the the respondent in the said petition was represented by noted by the learned Chief Justice the counsel has stage it was not even contended on behalf of the respondent that such liberty does not arise since the matter has been settled nor were the details of the in the concerned proceedings. In addition we also note earlier proceedings wherein it is contended that CMP without giving liberty to either of the parties to seek appointment of an Arbitrator in future it is to be seen that no material is brought on record to indicate the clause agreed therein cannot be invoked in view of the not just the original dispute but even the fact as to whether the matter was settled amongst themselves or agreement dated 23.11.2006 entered into between the parties. If that be the position the learned Chief Justice therein on behalf of the respondent about the petition being hit by Order II Rule 2 of CPC and also the principles of res­judicata. It cannot be accepted in the claim nor was there a conclusive adjudication of the res­judicata. As already indicated above the so­called settlement has neither been recorded in the earlier proceedings nor any document brought on record to as to wipe out the original dispute. In such circumstance a party to the arbitration agreement contending that there was a dispute amongst them cannot be left without a forum for resolution of the first instance has been settled if the dispute subsisted whether the claim is within the period of limitation the 17. Accordingly the appeal is allowed the order dated 31.12.2018 passed in AA No.52 2016 is set aside Chief Justice of the High Court of Uttarakhand is Pending application if any shall stand disposed of Page 1

Does the Adjudicating Authority or Resolution Professional enjoy any latitude in according preferential treatment to any creditor during ongoing CIRP : NCLAT

During CIRP if the Resolution Professional finds that any preferential transaction is made, then he is at liberty to file an Application under Section 43 of the I&amp;B Code. At this stage, no adverse interference can be made. The order passed by the NCLAT New Delhi, in its decision in Phoenix ARC Private Limited v. Kotak Mahindra Prime Limited and Another (Company Appeal (AT) (Insolvency) No. 749 of 2020)  by Hon’ble shri Justice Bansi Lal Bhat (acting) The facts pertaining to appeals were such that – The primary ground of the appeal as expressed in the appeal reminder is that the application under section 7filed vide C.P. (I.B.) No. 1503/KB/2018 was conceded by the AA on 06.11.2019, and the request forcing moratorium was a piece of a similar request of affirmation of the application under section 7 of IBC, 2016. Shri JitendraLohia was named as Interim Resolution Professional (hereinafter alluded as IRP) in the Reproved Order. He imparted the request in regards to the moratorium to all concerned including to the Branch Manager, ICICI Bank, RN MukherjeeBranch, Kolkatathrough letter dated 4/12/2019to close every one of the dynamic ECS against the A/C No. 00060022288 of Sunitti Papers Private Limited and to not make any installment from the said account except if the equivalent is supported or coordinated by the IRP. The IRP too composed another email to Respondent no. 1 on 31.03.2020 and further messages to Respondent No. 1 and ICICI Bank on 1.04.2020, 15.04.2020 and 01.05.2020 helping them to remember the cash of the moratorium and to discount the measure of Rs. 2,24,792 got by ICICI Bank through four ECSs during the cash of the moratorium. One of these messages asked Kotak Mahindra Prime Limited to record their guarantee as Financial Creditor in the CIRP of Sunitti Papers Private Limited. Another update through email was sent on 01.05.2020 by the RP to Respondent No. 1. These messages ceaselessly asked Kotak Mahindra Prime Limited and ICICI Bank to discount the sum acknowledged during the moratorium time frame to the record of Corporate Debtor. The main issue in this appeal is whether, during the cash of the moratorium which has been forced through Section 14 of the Insolvency and Bankruptcy Code, 2016 (hereinafter alluded to as IBC, 2016), can any sum be delivered or figured out from the all-out resources of the Corporate Debtor and whether the AA was defended in permitting the sum charged from the Corporate Debtor’s record in ICICI Bank.

NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI Company AppealInsolvency No. 7420 IN THE MATTER OF: Phoenix ARC Private Limited Trustee of Phoenix Trust FY 16 18 Kotak Mahindra Prime Limited & Anr For Appellant For Respondent None Smriti Churiwal Advocates. O R D E R Through Virtual Mode) Mr Vikram Wadehra Ms Vidushi Chokan and Ms 03.09.2020 The Appellant has filed this Appeal against the order passed by the Adjudicating Authority National Company Law Tribunal Kolkata Bench Kolkata in C.P.(I.B.) No.1503 KB 2018 dated 06th July 2020 whereby the Adjudicating Authority has issued direction to the Resolution Professional to reconsider the claim submitted by the Applicant Financial Creditor under the provisions of Code & Regulations and also against the directionto the R.P. to treat the payment of EMIs received by the Applicant Financial Creditor as adjusted against the claim of the Applicant witha further direction that the remaining amount of loan will be considered and admitted by the R.P. after verification of the claim submitted by the Applicant. Appellant contends that impugned order was passed on 06th July 2020. A free copy was not received by the Appellant. However the Appellant was informed of the said Impugned Order by the Respondent No.2 Resolution Company Appeal(Insolvency) No. 7420 Professional vide an e mail dated 11th August 2020 and this Petition is filed on 21st August 2020. The Applicant has filed IA No.20120 for Condonation of delay due to unprecedented situation arising out of the spread of Covid 19 pandemic and the prevailing circumstancesand on account of lockdown restrictions which affected the functioning of the Courts Tribunals. The Appellant thus could not apply for a certified copy of the Impugned Order and therefore the Appeal could be not filed within 30 days of the order. It is essential to mention that the Appellant has preferred this Appeal against the order dated 06th July 2020 on 21st August 2020. Appellant contends that due to Covid 19 situation and lockdown restrictions by the Government he could only get a certified copy of the order on 11th August 2020. After that the Appeal is filed on 21st August 2020. Thus it appears that there is no delay in filing the Appeal. Appellant has challenged the impugned order whereby the Adjudicating Authority has issued the following directions: The R.P. is directed to reconsider the claim submitted by the Applicant in accordance with the provisions of the Code and Regulations and result of verification is to be intimated to the The Applicant and the R.P. are directed to treat the payments of EMIs received by the Applicant as ADJUSTED against the claim of the Applicant and the remaining amount of Company Appeal(Insolvency) No. 7420 loan will be considered and admitted by the R.P after verification of the claim submitted by the Applicant.” verbatim copy) As far as the first direction is concerned it is only a direction to the R.P. to reconsider the claim submitted by the Applicant in accordance with the provisions of the Code and Regulations. The said directions cannot be treated as an order passed by the Adjudicating Authority. This is a general direction whereby the Adjudicating Authority has directed the Resolution Professional to reconsider the claim of the financial creditor as per Rules and Regulation. Thus no Appeal lies against the said direction. As far as the second direction is concerned it is about treating payments of EMIs received by the Financial Creditor during the moratorium as adjusted against the claim. It is also clarified that the remaining amount of the loan will be considered and admitted by R.P. after verification of claim submitted by the Applicant. It is essential to mention that on 06th November 2019 the Applicant Financial Creditor filed the Petition filed under Section 7 of the Insolvency & Bankruptcy Code 2016 for the initiation of Corporate Insolvency Resolution Process. The public announcement was made on 13th November 2019. After that on 04th December 2019 the Resolution Professional intimated the Bank of the Corporate Debtor to close all active ECS Accounts of the Corporate Debtor and further directed that no further ECS should be debited from the accounts of the Corporate Debtor. Appellant further contends that from 05th December 2019 to 05th March 2020 total ECS amounting to Rs.2 24 792 (Insolvency) No. 7420 Thousand Seven Hundred Ninety Two only) was deducted from the Corporate Debtor. Despite instructions from the Resolution Professional in violation of the moratorium order passed under Section 14 of the I&B Code. The Adjudicating Authority vide impugned order allowed the submissions of the claim by Respondent No.1 after due adjustment of the sums received by them during the moratorium period. It is pertinent to mention that CIRP is going against the Corporate Debtor. During CIRP if the Resolution Professional finds that any preferential transaction is made then he is at liberty to file an Application under Section 43 of the Code. At this stage no adverse interference can be drawn based on deduction of EMI by the bank for which loan was sanctioned and an agreement was signed before initiation of CIRP and EMI was deducted by the bank as per the loan agreement. Thus we are of the considered opinion that the Appeal is premature and liable to be rejected. There is no reason for interference in the impugned order by this Appellate Tribunal. Thus the Appeal is dismissed at the threshold. Justice Bansi Lal Bhat] Acting Chairperson V.P. Singh] MemberDr. Alok Srivastava] MemberCompany Appeal(Insolvency) No. 7420 NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI Company AppealNo. 7420 Arising out of Impugned Order dated 06.07.2020 passed by the Adjudicating Authority National Company Law Tribunal Kolkata Bench Kolkata in IANo. Nil of 2020 in Company Petition No. 1503 KB 2018) An application under Section 61 of the Insolvency and Bankruptcy Code 2016 …RESPONDENT NO. 1 …RESPONDENT No. 2 IN THE MATTER OF: IN THE MATTER OF: PHOENIX ARC PRIVATE LIMITED TRUSTEE OF PHOENIX TRUST FY 16 18) KOTAK MAHINDRA PRIME LIMITED MR. JITENDRA LOHIA RESOLUTION PROFESSIONAL FOR SUNITTI PAPERS PRIVATE LIMITED For Appellant: Mr. Jaivir K Sidhant For Respondents: Per: Alok Srivastava Memberno. 749 2020 has been filed by the appellant who is aggrieved by order dated 6 07 2020 passed by Hon’ble National Company Law Tribunal Kolkata Benchin un numbered IA No. Nil KB 2020 in CP No. 1503 KB 2019. The appeal has been filed by the authorised representative of the Appellant Mr. Harsh Magia. 2. Though the Impugned Order was passed and pronounced on 06 07 2020 the appellant has contended that the copy of Impugned Order was first available to the Appellant on 11 8 2020through an email from Respondent no. 2. Accepting the contention of the Appellant the appeal is found to be within limitation. 3. The main ground of the appeal as stated in the appeal memo is that the application under section 7filed vide C.P. No. 1503 KB 2018 was admitted by the AA on 06.11.2019 and order imposing moratorium was a part of the same order of admission of application under section 7 of IBC 2016. Shri JitendraLohia was appointed as Interim Resolution Professional in the Impugned Order. He communicated the order regarding moratorium to all concerned including to the Branch Manager ICICI Bank RN MukherjeeBranch Kolkatathrough letter dated 4 12 2019to close all the active ECS against the A C No. 00060022288 of Sunitti Papers Private Limited and to not make any payment from the said account unless the same is approved or directed by the IRP. The IRP also wrote another email to Respondent no. 1 on 31.03.2020 and further emails to Respondent No. 1 and ICICI Bank on 1.04.2020 15.04.2020 and 01.05.2020 reminding them of the currency of the moratorium and to refund the amount of Rs. 2 24 792 received by ICICI Bank through four ECSs during the currency of the moratorium. One of these emails asked Kotak Mahindra Prime Limited to file their claim as Financial Creditor in the CIRP of Sunitti Papers Private Limited. Another reminder through email was sent on 01.05.2020 by the RP to the Respondent No. 1. These emails continuously asked Kotak Mahindra Prime Limited and ICICI Bank to refund the amount realised during the moratorium period to the account of Corporate Debtor. 4. In response to the email received from RP and suggestion made therein Kotak Mahindra Prime Limited filed its claim vide email dated 01.05.2020. This request was not accepted by the RP since it was beyond the 90 days’ time limit specified in the procedure for submission of claims. It is seen from documents filed with appeal paperbook that neither Respondent No. 1 nor ICICI Bank refunded the amount to the CD’s account that was realised through ECS during the moratorium period in the account of the corporate. Aggrieved by decision of RP rejecting its claim Kotak Mahindra Prime Limited filed an application dated 15.05.2020 before the AAfor acceptance and admission of their claim as secured financial creditor. 5. Aggrieved by this action of the RP the Respondent no 1 filed an application before the AA for accepting and admitting his claim as financial creditor. The RP also filed an application before the AA for seeking orders for direction to Respondent No. 2 Kotak Mahindra Prime Limit) to refund the amount of Rs. 2 24 792 that he had been continuously asking for. The AA vide order dated 06.07.2020 accepted the prayer of Kotak Mahindra Prime Limited for considering its claim as Financial Creditor and also ordered that the amount realised by Kotak Mahindra Prime Limited through ECS during the moratorium period be adjusted against its claim. 6. In compliance of this order the RP accepted the claim of Kotak Mahindra Prime Ltd. Phoenix Arc Private Ltd.has preferred this appeal before the NCLAT on the ground that preferential treatment has been given to the Respondent No. 1. The Impugned Order is therefore challenged ‘inasmuch as it permits the amount received by the Respondent No. 1 after the imposition of the moratorium’ and the Respondent No. 1 may be directed to refund the amount of Rs. 2 81 750 Rupees Two Lakhs Eighty One Thousand Seven Hundred and Fifty only) as received by the Respondent No. 1 and the same shall for part of CIRP. 7. The Ld. Counsel of Appellant was heard on the appeal and grounds mentioned therein on the first date. The appellant’s counsel has put forth the argument that Impugned order insofar as it relates to adjustment of the amount paid to the ICICI bank is in contravention of the conditions imposed after the moratorium has come in force and therefore his case has merit and should be heard by the Hon’ble NCLAT. He has put forth the argument that the order the AA amounts to giving preferential treatment to the Respondent No. 1 in that it allows the amount collected by him to be kept by him and to be adjusted against his claim whereas the claim of other creditors have yet to be considered. 8. The main issue in this appeal is whether during the currency of the moratorium which has been imposed through Section 14 of the Insolvency and Bankruptcy Code 2016 can anyamount be released or realised from the total assets of the Corporate Debtor and whether the AA was justified in allowing the amount debited from the Corporate Debtor’s account in ICICI Bank. To decide whether prima facie case exists in favour of the appellant the issues that are relevant at this stage appear to be: 1) Can preferential treatment be given to any creditoronce order under Section 14 regarding moratorium has been imposed and Does the Adjudicating Authority or Resolution Professional enjoy any latitude in according preferential treatment to any creditor while the CIRP is going on and the liabilities of various stakeholders are being considered 9. After hearing the arguments of the Ld. Counsel for Appellant it would be useful to look at the statutory provisions and any judgment or observation on these issues by the Hon’ble Supreme Court or NCLAT. 10. The Insolvency and Bankruptcy Code 2016 contains the following provisions regarding the declaration of moratorium and public announcement after the admission of an application under any of the sections 7 8 9 or 10. “13. The Adjudicating Authority after admission of the application under section 7 or section 9 or section 10 shall by an order— a) declare a moratorium for the purposes referred to in section 14 b) cause a public announcement of the initiation of corporate insolvency resolution process and call for the submission of claims under section 15 and c) appoint an interim resolution professional in the manner as laid down insection 16. 2) The public announcement referred to in clauseof sub sectionshall be madeimmediately after the appointment of the interim resolution 1) Subject to provisions of sub sections 3) on the insolvencycommencement date the Adjudicating Authority shall by order declare moratorium forprohibiting all of the following namely:— 2) and institution of suits or continuation of pending suits or proceedingsagainst the corporate debtor including execution of any judgment decree or order inany court of law tribunal arbitration panel or other authority b) transferring encumbering alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein any action to foreclose recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 2) The supply of essential goods or services to the corporate debtor as may be interrupted during specified shall not be terminated or suspended or moratorium period. 3) The provisions of sub sectionshall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector 4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: Provided that where at any time during the corporate insolvency resolution process period if the Adjudicating Authority approves the resolution plan under sub section of section 31 or passes an order for liquidation of corporate debtor under section 33 the moratorium shall cease to have effect from the date of such approval or liquidation order as the case may be. 11. A reading of the Sections 14 and 15 of the IBC 2016 makes it clear that the during the currencyof moratorium the sanctity of maintaining the integrity of the assets of the Corporate Debtor is a sine qua non for the CIRP. Section 14(1)(b) prohibits ‘transferring encumbering alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein.’ In view of the blanket prohibition mandated by Section 14 after the initiation of CIRP it stands to reason that any change in the conditions of assets from what existed on the date of initiation of CIRP is not permitted in the normal course. The section 14 also does not give any authority to the RP or AA to accord any preferential treatment to any 12. The legal position regarding the sanctity and integrity of the moratorium in the CIRP which inter alia requires maintaining of the assets of the corporate debtor in the same form as on the date of declaration of moratorium has been considered by Hon’ble Supreme Court which had held as follows in Rajendra k. Bhutta vs. Maharashtra Housing and Area Development Authority and Ors. of the Code to the date of admission of an insolvency petition up to the date that the Adjudicating Authority either allows a resolution plan to come into effect or states that the corporate debtor must go into the liquidation. For this temporary period at least all the things referred to Under Section 14 must be strictly observed so that the corporate debtor may finally be put back on its feet albeit with a new management.”do not allow any preferential treatment to be given to any particular creditor. If one creditor is given preferential treatment then others should also get it to provide them a level playing field and same treatment in the eyes of law. This would not only cause confusion in the eyes of possible Resolution Applicants thereby putting a spanner in the resolution of the company which is the ultimate objective under the IBC 2016. It would also lead to the collapse of ‘waterfall mechanism’ regarding payment of liabilities to various stakeholders as is mandated and required under the IBC 2016. 14. The discussion in above paragraphs make it clear that the statute does not offer any in built scope for preferential treatment to be accorded to any creditor. In addition the provision in Section 14 do not allow any latitude to either the RP or the AA to give preferential treatment to any creditor. 15. After a perusal of the appeal memo and prayer contained therein the Impugned order statutory position regarding moratorium and the pronouncement of Hon’ble Supreme Court in RajendraBhutta caseit is clear that grounds exist for a full hearing to be accorded to the appellant after giving notice to the respondents and hearing both sides for a well thought out and judicious decision. Hence notices be issued to the respondents to be present in the tribunal and present their cases. The appellant shall provide fees etc. for service alongwith full contact details including postal and email address of the respondents. 16. Through this order I most humbly beg to differ from the view held bymy Hon’ble Colleagues in the Bench who have found the appeal fit for dismissal at this stage after hearing the appellant only. I feel that prima facie a case exists as put forth by the appellant and hence in the interest of justice and for upholding the law as enumerated in IBC 2016 a proper chance of hearing should be accorded to both the appellant and respondents before the case is finally admitted for hearing. 17. Matter be listed for hearing for admissionMemberJustice Bansi Lal Bhat] Acting Chairperson V.P. Singh] MemberNEW DELHI 3rd September 2020

Writ petition is not the appropriate remedy when it needs evidence and trial/enquiry: High Court of Jammu and Kashmir at Jammu

The Hon’ble judge, Mr. Justice Sanjeev Kumar decreed, “It is trite that where complicated disputed questions of fact are involved, the determination whereof requires evidence to be led before the prescribed Statutory Authority, it is not prudent to exercise extraordinary jurisdiction. The allegations of misrepresentation and fraud are, admittedly, subtle questions of fact, the determination whereof needs evidence of impeccable character. The determination of such facts and disputes can be better done by the authority concerned” in Dr. Suresh Sharma V. Union Territory of J&amp;K &amp; Ors. [WP(C) No.1100/2021 CM No.4498/2021]. The brief facts of the case are, respondent 3 and 4 are medical officers at the ISM department since 2001 and 2000 respectively. Respondent 3 applied for the RBA category certificate in 2006 and was duly issued to him. Without surrendering such a certificate, the respondent 3 got issued a fresh RBA category certificate in 2008. The same was for respondent 4. The petitioner assailed the validity and sustainability of these RBA certificates through this writ petition filed before the High Court since he feels that that respondent No.3 and 4 have, by concealment of material facts and by playing fraud have obtained category certificates and on the basis thereof have succeeded in getting accelerated promotion.

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU THROUGH VIRTUAL MODE) Reserved on: 01.06.2021 Pronounced on: 16.06.2021 WP(C) No.1100 2021 CM No.4498 2021 DR. SURESH SHARMA Through: Mr. Abhinav Sharma Sr. Adv. with Mr. Abhimanyu Sharma Advocate. UNION TERRITORY OF J&K & ORS. Through: Mr. H. A. Siddiqui Sr. AAG for R1 & R2. Mr. Sudershan Sharma Adv for R3. None for R4. CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR JUDGE The petitioner in this petition has inter alia prayed for the following reliefs: I) Writ in the nature of Mandamus declaring the reserve category certificates issued by the competent authority in favour of respondent No .3 and 4 in the year 2008 and 2007 respectively as null and void II) Writ in the nature of Certiorari to quash order No.111 HMED of 2009 dated 02.03.2009 and 2 WP(C) No.1100 2021 CM No.4498 2021 Government Order No.438 HME of 2008 dated 26.05.2008 whereby and where under the respondent No.3 and 4 respectively have been promoted as Incharge ADMOs department of ISM III) Writ in the nature of Prohibition restraining the official respondents from regularizing incharge promotion of the respondent No.3 and 4 The short grievance of the petitioner as projected in this petition is that respondent No.3 and 4 have by concealment of material facts and by playing fraud have obtained category certificates and on the basis thereof have succeeded in getting accelerated promotion. Before adverting to the challenge made to the impugned certificates and the impugned orders it would be appropriate to briefly notice few material facts. Both the respondent No.3 and 4 are substantively holding the post of Medical Officer in ISM department of Union Territory since the year 2001 and 2000 respectively. Both as claimed were selected and appointed as Medical Officers Ayurvedic) as general category candidates. It is alleged that the respondent No.3 in the year 2006 applied for issuance of RBA category certificate to the competent authority. Tehsildar Kishtwar the competent authority issued RBA category certificate in favour of respondent No.3 on 8th of March 2006 3 WP(C) No.1100 2021 CM No.4498 2021 purportedly under SRO 126 of 1994 though in the year 2006 the Jammu and Kashmir Reservation act 2004 and the rules framed there under vide SRO 2905 had already come into operation. It is the further allegation of the petitioner that the respondent No.3 without surrendering his RBA certificate issued in the year 2006 once again applied for RBA category certificate to the competent authority on 28th of August 2008 and got a fresh certificate issued in his favour on 12th of September 2008. 7) With regard to respondent No.4 it is contended that he applied for the category certificate on 27th of December 2006 and the same was issued to him by the competent authority on 6th of January 2007 It is also pleaded by the petitioner that with regard to issuance of RBA category certificate in favour of respondent no.3 by Tehsildar Kishtawar on 12th of September 2008 a criminal complaint under Section 417 418 420 and 468 of RPC was registered in Police Station Crime Branch Jammu. The Crime Branch conducted the preliminary enquiry and found that the allegations made against respondent No.3 were not proved. The complainant Mr. Anil Kant Gupta filed a protest petition before learned Magistrate to whom the status report had been submitted by the Crime Branch and the learned Magistrate vide order dated 14th March 2017 did not accept the status report and directed further enquiry in the matter. Against this order of Magistrate the 4 WP(C) No.1100 2021 CM No.4498 2021 respondent No.3 filed a quashment petition before this Court wherein this Court has stayed the operation of the impugned order. In the aforesaid backdrop the petitioner has assailed the validity and sustainability of the RBA certificates issued by the competent authority in favour of respondent No.3 and 4. The reliefs prayed for in the petition have been sought inter alia on the following grounds: That the impugned RBA certificate issued in favour of respondent No.3 is invalid for the reason that in the face of existence of earlier RBA certificate issued in the year 2006 the second category certificate could not have been applied for by respondent No.3 and issued by competent authority That the respondent No.3 was not entitled to the issuance of certificate for the reason that in terms of Section 2(o)(ix) of the Act the annual income of respondent No.3 from all sources to be determined in terms of Rule 22 of the Jammu and Kashmir Reservation Rules 2004 was exceeding Rs.3 lakhs That the respondent No.3 having being appointed as Medical Officer(Ayurvedic) in the year 2001 5 WP(C) No.1100 2021 CM No.4498 2021 was all along serving in Jammu and therefore could not be said to have been residing in the backward area at or before the issuance of RBA certificate That in terms of Proviso to Section 2(o)(ix) of the Act the income ceiling is not applicable to a person who has lived and completed his entire school education from an area identified as Backward or Line of Control. The respondent No.3 without demonstrating the aforesaid aspect could not have been granted the exemption from the income sealing That the impugned RBA category certificate issued in the year 2008 without first cancelling the similar certificate issued in the year 2006 was obtained by respondent No.3 by concealment of material facts and by playing fraud and therefore cannot be treated as valid 10) To the similar effect are the allegations leveled against the respondent No.4. It is claimed that the respondent No.4 who was appointed as Medical Officeron 08.06.2000 under open merit category was also not residing in the area identified as backward at the time of issuance of category certificate or any time 6 WP(C) No.1100 2021 CM No.4498 2021 prior thereto. The impugned RBA category certificate issued in favour of respondent No.4 has also been assailed on the ground that the respondent No.4 suppressed the material facts from the competent authority and did not place before it the relevant material with regard to his annual income and thus obtained the category certificate by practicing fraud. It is on the basis of this manipulated and managed RBA category certificates the respondent No.3 and 4 got the benefit of incharge promotions as ADMOs and are likely to be confirmed on the said post on substantive basis to the serious prejudice of the petitioner. 11) Having heard Mr. Abhinav Sharma learned senior council representing the petitioner Mr. H.A. Siddiqui senior Additional Advocate General for official respondents and Mr. Sudershan Sharma learned council for respondent No.3 I am of the considered view that the writ petition involves adjudication of facts of complicated nature which cannot be determined in the writ jurisdiction. Admittedly the category certificates which are placed on record by the petitioner are issued in the year 2008 and 2007 respectively. The petitioner did not raise any grievance at any time during last 14 years though respondent No. 3 and 4 are colleagues of the petitioner and have been working with him all along. It is true that one Ravi Kant had lodged a complaint before the Judicial Magistrate 1st Class in terms of Section 156(3) of Cr. P.C which came to be referred to Police Station Crime Branch Jammu. The 7 WP(C) No.1100 2021 CM No.4498 2021 Police Station Crime Branch Jammu however did not find any substance in the complaint and accordingly submitted its status report to the learned Magistrate. The complainant Ravi Kant filed a protest petition and the learned Magistrate after considering the matter found deficiency in the preliminary investigation conducted by the Crime Branch and thus directed further investigation. The matter landed before this Court in a quashment petition filed by respondent No.3. This Court has intervened in the matter and stayed the operation of the impugned order. 12) So far as respondent No.4 is concerned he too has been granted the category certificate by the competent authority which has not been assailed by any person aggrieved before any authority except by way of this petition. It is true that on the basis of category certificates issued in favour of respondent No.3 and 4 the respondent No.3 and 4 have been given a benefit of incharge promotion as ADMOs and may be as apprehended by the petitioner they get the benefit of accelerated substantive promotion as well. The petitioner has raised serious issues with regard to the validity of the certificates issued in favour of respondent No.3 and 4. It is the contention of learned senior counsel that the competent authority did not follow the provisions of the J&K Reservation Act 2004 and the rules framed there under in their true 8 WP(C) No.1100 2021 CM No.4498 2021 spirit. As a matter of fact it is the argument of Mr. Sharma that respondent No.3 and 4 by sheer misrepresentation of facts persuaded the competent authority to issue the category certificates to which they were not entitled to in law because of various handicaps. It is claimed that the respondent No.3 and 4 had neither resided for continuous period of 15 years in the backward area nor were they residing at the time of issuance of RBA certificates in their favour. It is also not the case of respondent No.3 and 4 that they had lived and completed their school education from an area identified as backward so as to claim exemption from the income ceiling provided under Section 2(o)(ix). It is also alleged by the petitioner that being Medical Officers in the ISM department and having handsome salary the respondent No.3 and 4 were having annual income from all sources exceeding Rs.3.00 lakhs. The allegations made on the face of it involve adjudication of complicated disputed facts the determination whereof may require evidence oral as well as documentary. Without disputing the legal position adumbrated by Mr. Sharma learned counsel for the petitioner by reference to various provisions of the J&K Reservation Act 2004 and the rules framed there under suffice it to say that the Reservation Act and the rules framed there under is virtually a complete Code in itself and provides for various remedies for redressal of grievance that may arise out of the applicability of the Reservation Law. 9 WP(C) No.1100 2021 CM No.4498 2021 In terms of Section 17 of the Act a person aggrieved by an order of the competent authority under Section 16 of the Act is given a right of appeal before the Deputy Commissioner if the order appealed against his passed by an officer below the rank of Deputy Commissioner in his capacity as a competent authority and before the Divisional Commissioner if the order appealed against is passed by the Deputy Commissioner in his capacity as a competent authority. The period of limitation for filing the appeal is 90 days from the date of the order. 17) Apart from Section 17 providing for an appeal Section 18 confers upon the Appellate Authority revisional jurisdiction as well which such Authority may exercise either suo moto or on an application made to it. 18) Rule 25 of the Reservation Rules 2005 also provides for an appeal at the instance of an aggrieved person against the order of rejection by the competent authority under Rule 23. 19) Reading of Section 16 and 17 of the Act of 2004 in juxtaposition with Rule 23 and 25 of the Rules of 2005 an anomaly clearly emerges and therefore for better appreciation of this anomaly it is necessary to set out Section 16 and 17 of the Act of 2004 and Rule 23 and 25 of the Rules of 2005. “16. Issuance of Certificate The Competent Authority shall within fifteen days from the date of the receipt of the application and for reasons to be recorded in writing either accept the 10 WP(C) No.1100 2021 CM No.4498 2021 it. On acceptance of application or reject application the authority shall immediately issue the requisite certificate to the applicant in the prescribed 17. Appeals 1) Any person aggrieved by an order of the Competent Authority under section 16 may at any time before the expiry of ninety days from the date of the order prefer an appeal to: i) Deputy Commissioner if the order appealed against is passed by an officer below the rank of Deputy Commissioner in his capacity as Competent Authority or ii) Divisional Commissioner the order is passed by Deputy appealed against Commissioner in his capacity as Competent 2) The Appellate Authority shall within 30 days from the date of receipt of the appeal pass such orders on it as it deems fit: Provided that no order shall be made against any person without affording him opportunity of being heard. 23. Issuance of Certificate The Competent Authority shall within 15 days from the date of the receipt of the application for reasons to be recorded in writing either accept the application or reject it. On the acceptance of the application the authority shall certificate to the applicant in Form VlII IX X XI Xll XIII XIV as the case may be. 25. Appeals 1) Any person aggrieved by an order of rejection of the Competent Authority under rule 23 may prefer an appeal to the appellate authority under section 17 of the Act. 20) From a careful reading of Section 16 and 17 of Act of 2004 it clearly transpires that an order of the competent authority under Section 16 whereby the application for grant of reserved category certificate is either accepted or rejected is appealable before the Appellate Authority at the instance of any person aggrieved. It 11 WP(C) No.1100 2021 CM No.4498 2021 clearly means that any person who is aggrieved by the order of competent authority passed under Section 16 of the Act can avail of the remedy of appeal within a period of 90 days from the date of order. If the application for grant of category certificate is rejected obviously the person aggrieved would be the applicant but where such an application is accepted and a category certificate is granted any person aggrieved or affected by the issuance of such certificate may also file an appeal. There is however a rider on the exercise of appellate powers by the Appellate Authority that no order against any person shall be made without affording him a reasonable opportunity of being heard. Obviously this remedy was available to the petitioner but the same has not been availed of. 21) Looking to Rule 23 and 25 of the Rules of 2005 it would transpire that an appeal to the Appellate Authority under Section 17 of the Act of 2004 is available only against the order of rejection of the application and it can be at the instance of the applicant for there could be no other person other than the applicant who would be aggrieved of rejection of his application for grant of reserved category certificate. There is thus clear anomaly in the two set of provisions noted above but this anomaly may not detain the Court from proceeding further in the matter. Needless to say that the rules framed under the Act are subservient to the Act and must succumb to the extent of any anomaly or incongruity. 12 WP(C) No.1100 2021 CM No.4498 2021 22) Be that as it is it is equally important to notice that Section 22 of the Act contains a provision for cancellation of category certificate and forfeiture of benefit etc. if it is found that any person has obtained a certificate under the Act by misrepresentation fraud or concealment of any material fact or impersonation etc. For facility of reference Section 22 of the Act is also reproduced here under: “22. Penalty for contravention of the provisions of the Act. Any person who obtains a certificate under the Act by misrepresentation fraud or concealment of any material fact or impersonation shall in addition to prosecution under the law for the time being in force be liable to: a) cancellation of the certificate and forfeiture of benefit b) removal or dismissal from service and c) fine of not less than rupees ten thousand. It is true and as is contended by Mr. Sharma the petitioner has lost the remedy of appeal under Section 17 of the Act by efflux of time but it is equally true that the petitioner has a remedy under Section 18 of the Act which confers on the Appellate Authority the revisional powers to be exercised either suo moto or on an application made to it. The Act does not provide for any limitation and therefore the revisional jurisdiction of the Appellate Authority can be invoked by the Appellate Authority suo moto at any time and there is no limitation to do that. However if it is to be invoked by a party aggrieved by making an application then it ought to be done within reasonable time. 13 WP(C) No.1100 2021 CM No.4498 2021 24) What would be the reasonable time for invoking the revisional jurisdiction may depend on the facts and circumstances of each case and no straightjacket formula can be laid down therefor. However so far as the case of the petitioner is concerned the same clearly falls under Section 22 of the Act. It is the categoric case of the petitioner that the respondent No.3 and 4 have managed RBA category certificates by misrepresentation fraud and concealment of material facts. If that be the position the petitioner is well within his rights to approach the authority which has granted the certificate and place the material substantiate his allegations of misrepresentation fraud and concealment of material facts. It is the contention of Mr. Sharma learned senior counsel that in the absence of any authority prescribed under the Act and the rules framed there under for cancellation of the category certificates once issued the provisions of Section 22 are virtually rendered otiose. I am not impressed with the argument of Mr. Sharma. Needless to say that the power to grant includes the power to withdraw or cancel. Otherwise also any order or certificate obtained by fraud misrepresentation or concealment of facts is nullity in the eye of law and therefore nothing prevents the authority which was persuaded to pass such order or grant such certificate by misrepresentation fraud or concealment of material facts to make such declaration and cancel withdraw the certificate so obtained issued. 14 WP(C) No.1100 2021 CM No.4498 2021 In view of the nature of controversy raised in this petition which necessarily needs evidence and a sort of trial enquiry to determine the facts of complicated nature the writ petition is not the appropriate remedy. Otherwise also looking to the scheme of the Act and the rules framed there under wherein there are enough of remedies provided for redressal of grievance of the nature projected by the petitioner in this petition I am not inclined to exercise the extraordinary jurisdiction. I am aware that where fundamental rights are breached or an order is passed in violation of principles of natural justice this Court may no relegate the parties aggrieved to the statutory alternative remedy and in appropriate cases may even embark upon determining the disputed questions of fact but it all depends on the facts and circumstances of each case. It is trite that where complicated disputed questions of fact are involved the determination whereof requires evidence to be led before the prescribed Statutory Authority it is not prudent to misrepresentation and fraud are admittedly subtle questions of fact the determination whereof needs evidence of impeccable character. The determination of such facts and disputes can be better done by the authority concerned. In the instant case the competent authority has issued the certificates obviously on being satisfied with regard to respondent No.3 and 4 meeting the requirements of the Act and 15 WP(C) No.1100 2021 CM No.4498 2021 the rules framed there under and if it is the case of the petitioner that the competent authority was misled by respondent No.3 and 4 by misrepresentation and concealment of material facts or by playing fraud the onus is on the petitioner to prove before the authority concerned that but for misrepresentation concealment of material facts or fraud played by respondent No.3 and 4 the competent authority would not have issued the category certificates. 29) Before I close I deem it appropriate to refer to a recent judgment of the Supreme Court in the case of Punjab National Bank and others v. Atmanand Singh and others No.11603 20217 decided on 6th of May 2020) wherein Hon’ble Supreme Court relying upon its two earlier judgments i.e. Thansingh Nathmal and others v. Superintendent of Taxes Dhubri and othersand Suganmal v. State of Madhya Pradesh and othersheld thus: “We restate the above position that when the petition raises questions of fact of complex nature such as in the present case which may their determination require oral and documentary evidence to be produced and proved by the concerned party and also the relief sought is merely for ordering a refund of money the High Court should be loath in entertaining such writ petition and instead must relegate the parties to remedy of a civil suit. Had it been a case where material facts referred to in the writ 16 WP(C) No.1100 2021 CM No.4498 2021 petition are admitted facts or indisputable facts the High Court may be justified in examining the claim of the writ petitioner on its own merits in accordance with law. In view of the foregoing I find no justification to entertain this petition and the same is accordingly dismissed along with connected CM. It shall however remain open to the petitioner to work out his remedy before the competent forum in accordance with law and as per the observations made hereinabove. Sanjeev Kumar) Judge 16.06.2021 “Bhat Altaf PS” Whether the order is speaking: Whether the order is reportable: Judgment pronounced today on 16.06.2021 in terms of Rules 138 3) of the Jammu and Kashmir High Court Rules 1999. Javed Iqbal Wani) Judge